Smith v. Jenks

xst ERROR. A verdict in ejectment^ “that the defendant should have the third part of the 4| acres and 32 perches neat, and if any overplus, it goes to the plaintiff,” is'too Uncertain: and it cannot be cured by the court’s appointing a surveyor to designate the rights of the parties, and rendering judgment thereon.

Error to the Court of Common Pleas of Union county. Ejectment, originally brought by Simon Snyder against Robert Smith, in which the death of the plaintiff was afterwards suggested, and his heirs substituted. It was to recover 8 acres of land, and involved a dispute between the plaintiff and the defendant, concerning their lines, both claims adjoining tracts by conveyance from a person in whom the title had been vested. The conveyance under which the defendant claimed, was of 40 acres, to himself and two others as tenants in common, under which, it was proved, that 40 acres and half allowance were to be surveyed to them. Partition was afterwards made among the tenants in common. The jury found the following verdict: “we do find that Robert Smith should have the third share of the 41 acres and 32 perches neat: and if any overplus, it goes to the plaintiff.” On motion of the plaintiff’s counsel the court appointed T. Woodside a surveyor, to go upon the land in question, and survey the same, and ascertain the quantity for each party, agreeably to the finding of the jury. Afterwards, on motion of plaintiff’s counsel, and exhibiting to the court a diagram of the survey made by T. Wood-side, agreeably to the order of the court, (which was filed in court,} and notice to the defendant being proved, the court directed judgment to be entered for the plaintiffs, for the 4 acres, 91 perches, and 3 per cent, allowance designated by the diagram. Several bills of exceptions were taken by the defendant on the trial, and were now argued by