#### *H. Jones and Sarah Moore*v. *E. D. Owens. Same*v. *E. and J. Drummond. Same*v. *David Buckhalter. Same*v. *A. Philpot.*

A verdict finding for the plaintiffs their undivided distributive portions of the land in dispute, described in a certain re-survey plat, bearing a certain date &c. is too vague, indefinite and uncertain for a judgment of the Court to be rendered upon it.

Under a declaration claiming the whole, tire verdict may be general, and must ascertain by its own terms, or by reference to the declaration or plat, the land recovered; or the verdict may find a part only, and it shall then specify and describe such part; and if it be for an undivided share, such share shall be specified either by the number of acres, or as an aliquot part of the whole.

*Before*Withers, X, *at*Barnwell, *Fall*Term, 1849.

REPORT OF THE CIRCUIT JUDGE.

The above several cases were actions of trespass to try titles. I will endeavor to pursue the order of the grounds of appeal in this report.

1. As to the plaintiffs being heirs-at-law of Wm. Jones, through whom they claimed in the first place. It was in evidence that a witness above 50 years old knew Wm. Jones *135when he (the witness) was small, and that Jones went to Mississippi and died there, leaving the following children : Darling, Henry, William, Matilda, Sarah, Elizabeth Emily; they were considered his children in 1828. Henry Jones, the plaintiff, was about 5 years old in 1828; he was the grandson of Wm. Jones the grantee. The other plaintiff, Sarah Moore, was Wm. Jones’ daughter, and had married one Moore. In 1828, when this witness was in Mississippi, 7 of Wm. Jones’ children were living, but he had since heard that all were dead, except Sarah Moore and Emily Jones. At that time Wm. Jones’ widow was supposed to be over 60. Another witness for the plaintiffs said that he saw Wm. Jones, the grantee, in Mississippi in 1812, when he, his wife and 6 children were living. At that time Jones offered to sell to him some of the land in dispute. A witness for the defendants said that he knew, when small, Wm. Jones, who moved to Mississippi in 1807 or 1808 — that 10 or 12 years ago he had heard, by letter, that all his sons, except William, were dead — that 4 years ago he had heard that all Jones’ sons had killed themselves by hard drinking, though he did not doubt that some of his family were now in Mississippi.

2. As to the question whether the plaintiffs were *in esse:*It appeared on their part in evidence, that a witness had received from his aunt, one Sarah Jones, and from the plaintiff, Henry Jones, letters informing him that Moore, the husband of the other plaintiff, was dead — that from Sarah Jones, his aunt, and from Henry Jones, the plaintiff, he had received letters within a year. In 1828, old Wm. Jones was dead; Sarah Moore had then 2 children ; her husband was alive; her husband seemed to be about 30 years old. This witness had at the instance of the plaintiff, Henry Jones, spoken to a lawyer to bring these actions, it will be understood that the jury were not left without suitable instructibns, to the effect that on behalf of plaintiffs, it must be proved as well that they were yet alive, as that they had paramount title.

3. A copy of the verdicts accompanies the grounds of appeal, and the point therein raise.d can be thereupon examined. The remaining grounds do but embrace various statements of the same general question, which involves the merits of the case, and I will endeavor to present the cases as made. The plaintiffs claimed, as heirs of William Jones, two tracts of land, the one embraced in a grant to their ancestor for 500 acres, dated 6th May, 1799, the other, in a grant to him for 920 acres, dated Feb. 2, 1807. Both were satisfactorily located, and if the plaintiffs’ title could be established at all, there was no question that Owens, Buckhalter and Philpot were trespassers on the Jones’ survey for 920 acres; and the two Drummonds, the other defendants, were trespassers on that for 500 acres. The Drummonds presented a grant to James *136Drummond for 600 acres, dated Nov. 23, 1835, which was nearjy identical, as to metes and bounds, with that of Wm. Jones for 500 acres. The other defendants presented a grant t0 David Buckhalter for 944 acres, dated May 8, 1835, the location whereof was nearly identical with the grant to Wm. Jones for 920 acres.

All the defendants further relied upon proving title out of the plaintiffs by means of a grant to one John Hall, dated Sept. 4,1786, for 9649 acres, the location of which they sought to aid from another grant to the same person of the same date, called for by the former as one of its boundaries, and which, though bearing same date, was hence supposed to have been first run out. The first-mentioned grant to John Hall was that, according to defendants’s argument, which covered the two tracts of land in dispute; but if the last-mentioned grant to Hall could be located, it would aid very materially in locating that which was essential to the defendants — and to the location of the last-mentioned, it was material to find the line of a grant to one Job Roundtree, for whose corner it called as a boundary. For the location urged by defendants, they relied upon William Buckhalter, their surveyor, and I marked his plat with letters that are transferred to my notes, and its production with such designations will be indispensable to the comprehension of this report. He said the location of the Hall grant covering the lands in dispute, was indicated on his plat by the letters A. C. B. E. D. He fixed the line A. C. B. by the aid of a grant and plat to one Minor, younger than the Hall grant, but calling for it — upon which there were sundry water courses indicated on the upper part of that line which did not appear on the Hall plat. He found that line, so far as it could be traced, and until it had been obliterated by clearing, a double marked line, corresponding with the Hall and Minor’s plats-; such original marks he found from C. to B. — from the latter point he platted by course and distance, and thus fixed the intersection with the upper line, which last was also platted by course and distance, and not examined by reason (as Buckhalter said) of cleared land. It was near 6 miles from A. to B. — from E. about 4J miles, whereas on the original plat it was about two miles. He was on only two lines (A. C. B. and A. D.) the others were platted as copies from old survey. The dividing line between the two Hall plats appeared to have been in part marked by the original surveyor, and Buckhalter said he did not survey that, because clearings had obliterated some of it, he did not know how much — and because he was otherwise satisfied with the location he had represented. The important point D., he said, was the corner of Job Roundtree, called for by the original Hall grant, and he fixed that, having Roundtree’s plat— first, because it was double-marked as a corner; and second, *137because he ran satisfactorily a portion of the line from D. of the Roundtree and adjacent Hall plats. From D. he ran A., at a variation of two degrees from the original course, (80° instead of 78°) crossing the lower three Runs, indicated on the original Hall plat, but not presenting the confluence of that with another stream in the same position exhibited on the *original;*but nevertheless, he considered it a station, and though no comer was found at A., some old marks were found on the line he ran, near it; but he did not ascertain with what survey they corresponded. Course and distance from A. C. B. with the shape of the plat would exclude from the location the plaintiffs, Jones’ plat, for 920 acres. Hext (the plaintiffs’ surveyor) had certified the plat of Buckhalter, upon the representation of the latter of .what he had found ; but he was not upon the survey, and had never seen a single object upon which Buckhalter relied.

A continuous adverse possession, by the Drummonds, on the Jones’ survey for 500 acres, beginning in 1836, was established ; this action having been brought in October 1847; and this was to be rebutted only by proof of the minority of Henry Jones, who was said not to have exceeded 5 years of age in 1828. On the part of the other defendants,, adverse possession was not established for the requisite space of time, even against those laboring under no disability. In reply, the plaintiffs, while contesting the location of the .Hall grant, undertook to prove that, even if well located, they had" acquired that title. To that end proceedings in escheat were offered, the result of which shewed that the Hall lands, both parcels, were sold as escheated property, and it seemed probable in 1828 — and. were conveyed to the Trustees of the Barnwell Female Academy as purchasers, who were also entitled to the proceeds as a corporation by virtue of two Acts of the Legislature, the last of which was passed in Dec. 1836, extending the corporate existence 6f that body for 14 years. The corporation had been, inactive for many years, and their Academy had sunk for want of funds; but on the day when these causes were taken up for trial, a quit-claim deed of conveyance of the Hall lands to the plaintiffs was executed by Col. Brown, President, and E. Bellinger, Secretary of the corporation, in behalf of the Trustees of the Female Academy, and was introduced in evidence. On that day, or. a day or two before,, these persons were appointed to their offices at some meeting gotten up by those who claimed to represent the corporation. Their records indicated no meeting before this since 1834; but lands were escheated and sold from ’41 to ’44 — monies collected and debts paid. In 1834, the persons.present at the meeting were, John S. Smith, Thompkins, Robison, Lewis O’Bannon and B. H. Brown. At the recent meeting, present,. E. Bellinger,. Col,. Brown, Daniel Tobin, *138George Duncan and Lewis O’Bannon. It was contended for defendants, that the corporation was defunct, and therefore ’ the deed of conveyance introduced as proceeding from them was an empty paper.

Such were these cases, as briefly and intelligibly reported as the circumstances under which I write will permit. _ I thought my charge unfavorable to the plaintiffs from beginning to end; the only complaint made about it by those whom it favored is, that I ought to have charged the jury that “ the location ot the grant to John Hall was sufficiently established by the evidence.’’ Now I do not think the jury had any doubt that such was my judgment, provided, sufficient reliance could be placed on the science,-skill, diligence and opinions of Buckhalter, the surveyor for the defendants. Indeed I went a step further than their counsel did, for I told them that notwithstanding it would have been more satisfactory if Buckhalter had searched for and found some marked timber on the line'dividing the two. Hall • grants (where a number of trees had been marked, as it seemed, by the original surveyor) yet, if the corner at D., the Roundtree corner, was well located, the position of the said dividing line could not- be material, since one Hall grant or the other would coyer the lands in controversy. I told them besides, that the conveyance made on the day of trial, by the corporation of the Barnwell Female Academy, supposing that-body to have the most’perfect legal form and. efficiency, was of no avail in these actions against any of the defendants, since their trespass now sued for against the Hall title was not a trespass against these plaintiffs as successors to that title, inasmuch as they never had that title till the day of trial, and these actions were brought more' than two years before; and moreover, if the plaintiffs were driven to rely on that title alone, then they, had lost the tract for 500 acres, by reason of the adverse possession by the Drummonds against the corporation who claimed to own the Hall,title, and could have sued, being under no disability.

My charge narrowed the question down to location of the Hall grant (leaving the points made in the two first grounds of appeal with the jury upon instruction not complained of) and if I did not tell them in peremptory language, that they were bound to follow the opinions of Buckhalter, it was because I was not yet reconciled to the idea of referring a question, arising on evidence, to the jury with positive instructions to find only in a particular way. If it is .for the Court to say that the surveyor must be followed,- that he did find the marks he said he found, that they were such as he described them to be, that no doubt as to his skill, diligence, veracity, force of reasoning,- and-so-forth, is to be referred to the jury, then we must go a little further than we have yet gone, (in lan-*139gnage,) and instead of a slight admixture of fact with law, in matters of location, let'us hold that law is the only ingredient in such questions, and then the agency of a Circuit Court will be understood, that is to say, its function will be to gather evidence, to be resolved by the application, not of the judgment of a jury, but of legal science. As our practice yet exists, I was obliged to leave something to the jury; and as to that, I went as far in reasoning for the defendants as I .thought the rights and functions of the jury allowed. They did not find as I would have done, and it will be for the higher tribunal to say whether they have exceeded their just discretion.

The defendants moved in the Court of Appeals for a new trial, on the following grounds:

1. Because the evidence to prove the fact that the plaintiffs are the heirs-at-law of William Jones was vague and insufficient.

*2.*Because there was no evidence to prove that the plaintiffs.are living, or were living within any reasonable time.

3. Because the verdicts are so vague, uncertain and indefinite that the Court cannot render judgments on them.

4. Because the defendants proved title to the premises in dispute out of the plaintiffs.

5. Because the defendants proved the *locus in quo*to be within the grant to John Hall, which is older than the grants under which the plaintiffs claim.

6. Because the location of the grant to John Hall was sufficiently established by the evidence, and the Circuit Court should so have charged the jury.

*7.*Because the verdicts are contrary to law and evidence.

*Patterson,*for the motion.

*Bellinger 6g Hutson,*contra.

COPY OP THE VERDICTS.

We find for the plaintiffs their undivided distributive portions of the land in dispute described in the re-survey plat of L. P. Hext, dated 4th October, 184S, and five dollars damages.

*James L. Still,*foreman.

*Curia, per*Frost, J.

It is unnecessary to consider any other of the grounds taken for a new trial, besides the third, which excepts to the verdicts, that they are so vague, indefinite and uncertain, that no judgment cau be rendered on them. One of the verdicts is to this effect — “ We find for the plaintiffs their undivided distributive portions of the land in dispute, described in the re-survey plat of L. P. Hext, dated the 4th of October 1848, and five dollars damages.” The others are similar.

*140The plaintiffs sued for the recovery of two entire tracts of jan¿ jn ^e possession of the defendants, and proved, to the satisfaction of the jury, that they were entitled to distributive shares of both tracts; but the evidence left it uncertain what those shares might be.

*A*distributee may sue for and recover his share of the land against a trespasser. If he sues for the whole tract, he may recover the portion to which he shows he has title. But the verdict must express with certainty what is found for the plaintiffi A Verdict, finding a matter uncertainly or ambigú-is insufficient; and no judgment can be given thereon, in *Heyward*v. *Bennett*the verdict found for the plaintiff the land lying west of Cox’s creek, from the mouth-thereof, upwards, until it intersects the first boundary line called .for’5 — and a new trial was granted on account of the uncertainty.

' In an action of ejectment for a>messuage, the jury found the defendant guilty as to so much, of the messuage as stands upon a certain bank. A distinction was taken between trespass, in which damages only may be recovered, and ejectment, in which the thing itself is recovered; and it was held £hat though a verdict, which finds part of the land demanded, is good; it can only be so when it finds a certain part; because otherwise the Court can’t give judgment.

■ A verdict in an action of dower, which found that the husband was seized of the premises, except so much thereof as belonged to J. S., was adjudged to be insufficient.

The rule to be deduced from the authorities is, that under a declaration, claiming the whole, the verdict may be general, and must ascertain, by its own terms, or by reference to the declarations or plat, the land recovered; or the verdict may find a part only; and it shall then specify and describe such part; and if it be for an undivided share, such share shall be specified, either by the number of acres or as an aliquot part of the whole.

From the verdicts in these cases it cannot even be conjectured to what share or portion of the lands in dispute the plaintiffs showed title. It may be the most inconsiderable fraction, or it may be nearly the whole. The Court cannot give judgment that the plaintiff recover from the defendant a thing unknown.

The motion is granted.

Evans and Wardlavv, JJ., concurred.

*Motion*granted.-