Opinion
7 Div. 251.
November 23, 1922.
Appeal from Circuit Court, Clay County; W. L. Longshore, Judge.
Lackey, Pruet Glass, of Ashland, for appellant.
The verdict must either describe the land, so that the court can determine just what land the jury find for in favor of the plaintiff, or it must be so described that by reference to the complaint it can be determined what land the plaintiff is entitled to recover. 78 Ala. 176; 9 Ala. 594; 9 Port. 171; 48 Ala. 217; 139 Ala. 398, 36 So. 15; 101 Ala. 186, 13 So. 43, 46 Am. St. Rep. 117; 78 Ala. 167.
Garrison Gay, of Ashland, for appellee.
The disclaimer filed by the defendant was an admission of the plaintiff's title, with a denial of defendant's possession. The description is amply sufficient, and the plaintiff was entitled to the judgment rendered. 199 Ala. 74, 74 So. 238; 186 Ala. 524, 64 So. 611; 94 Ala. 135, 10 So. 320.
This is a suit in ejectment by appellee against appellant to recover a strip of land particularly described in the complaint. The plaintiff was the owner of the N.W. 1/4 of the N.W. 1/4 of section 11, and the N.E. 1/4 of the N.E. 1/4 of section 10, and the defendant owned the two 40's north thereof, the one being S.W. 1/4 of S.W. 1/4 of section 2, and the other S.E. 1/4 of S.E. 1/4 of section 3, all in the same township (22) and range (8). The defendant filed disclaimer of possession of any of the lands named in the complaint, but alleged that he was the owner of the two 40's last above mentioned, and suggested to the court that the suit arose over disputed boundary line between said lands of defendant and plaintiff. There appears to have been no issue taken upon the plea of disclaimer, and under the situation here presented the plaintiff would have been entitled to a judgment upon such disclaimer for the land sued for, as held by this court in Pennington v. Mixon, 199 Ala. 74, 74 So. 238. The court made up the issue as to the location of the true boundary line between the lands of the plaintiff and defendant, and the trial resulted in a verdict for plaintiff, in which verdict the line was established.
The brief of counsel for appellant discloses that the sufficiency of the verdict to support this judgment is the question of prime importance upon this appeal; and in support of this insistence they rely largely upon the case of Bradford v. Sneed, 174 Ala. 113, 56 So. 532, wherein expressions occur to the effect that a verdict of the jury cannot be aided by reference to extrinsic facts. That authority, however, was explained and to some extent qualified in Lessley v. Prater, 200 Ala. 43, 75 So. 355, where it was said:
"This court in later cases has recognized the efficacy of a reference in the complaint, verdict, or judgment to 'some monument, or actually existing thing,' as appropriate descriptive terms in such solemn affairs."
The description in the verdict must, of course, be sufficient as not to leave the finding of the boundary to the mere discretion or conclusion of the officer executing the writ. Lessley v. Prater, supra; Finney v. Baker, 201 Ala. 521, 78 So. 875; Wade v. Gilmer, 186 Ala. 524, 64 So. 611.
We are of the opinion, however, that the verdict rendered in the instant case, read in connection with the issue made by the complaint, the disclaimer, and the suggestion as to the disputed boundary line sufficiently responded to the issue thus formed, and, though awkwardly worded, when properly construed, comes within the reasonable certainty required by the foregoing decisions.
The plaintiff owned two 40's of land, lying side by side, one-half mile in length east and west, which land is immediately south of the land owned by defendant. Therefore the dividing line between the lands of these parties was a section line, and we think the verdict of the jury discloses that they found the beginning of this dividing line to be the line which extends from a point 24 1/4 feet north of the east end of the wire fence in the N.W. 1/4 of the N.W. 1/4 of section 11, and running in a straight line west one-half mile west to a point 74 feet north of the west end of the wire fence in the N.E. 1/4 of the N.E. 1/4 of section 10, in the same township and range.
While, as stated by counsel for appellant, there is no reference in the pleadings to a wire fence, and it is only referred to in the evidence, yet, as pointed out in Pennington v. Mixon, supra, a reference in the verdict to the wire fence may suffice by way of description to aid in the establishment of the true line, and serve as a guide to the officer in executing the writ. It cannot be questioned but that the judgment entered in this cause, following the verdict rendered, is sufficiently definite and certain; the argument against it being that such judgment was not authorized or justified by the verdict. We have reached the conclusion, however, that the proper construction of this verdict was given by the trial court as set out in the judgment entry, and therefore the point against its sufficiency is not well taken.
The next assignment of error relates to the action of the court in overruling the objection of defendant to the question propounded to the witness McDaniel as to whether or not he did any work around the corner of sections 2, 3, 10, and 11; the principal insistence appearing to be that it had not been shown that the witness knew where the corner was. The witness had stated his familiarity with the land, and it would appear that this point could have been elicited upon cross-examination. Chenault v. Walker, 14 Ala. 151; Avary v. Searcy, 50 Ala. 54. In no event, however, could we say that any injury has resulted to the defendant.
Similar objection is presented to the ruling of the court in overruling defendant's objection to the question asked witness Bolton as to whether or not he saw anything indicating the corner. This witness' testimony discloses that he was at the corner of these lands in 1906, and there was an old corner "stob" there. We are unable to see any merit in this insistence.
The plaintiff, upon being recalled, was asked whether or not the corner of these lands he claimed as the correct corner was the corner that witness Bolton and other witnesses had testified about. We agree with counsel for appellant that this is a shorthand rendition of the testimony, which is not to be encouraged, but we see nothing in this action of the court which could have been of any prejudicial effect to the defendant.
Finding no reversible error in the record, the judgment appealed from will be here affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.