Mitchell v. . Hoggard

MebjriMON, C. J. after stating the case: The case settled on appeal is not affall free from confusion. It seems that the plaintiff contended, on the trial, that he and defendant were tenants in common of the land in controversy, and the Court so held; but, it held further in this connection that there was no evidence of ouster of the plaintiff or demand on his part that he be let into possession But such questions were certainly not raised by the pleadings in any view of them. The complaint plainly alleges that the plaintiff is the owner of the land therein specified; that the defendant is wrongfulh in possession thereof and unlawfully withholds the same, etc. This the defendant denies, and as to the pos *356 session, a proper issue raised was submitted to the jury. The parties both claim under the devise above recited. It seems that the Court was of opinion that this devise made the parties tenants in common, and hence the opinion expressed — that they were. We think such opinion was not well founded, and therefore the plaintiff was not entitled to any benefit from it in any aspect of the case. The devise ’ must be construed as a whole, and the intention of the testator must prevail. The first part of the devising clause simply declares the testator’s purpose to devise the tract to the devisees named, but in that immediate connection he qualifies, explains and makes his purpose specific by designating and specifying a “dividing line,” cutting the tract into two distinct parts, and devising to his daughter named the part described, situate on one side of that line, and to the plaintiff the other part, sufficiently designated, situate immediately on the opposite side of that line. The clear purpose was to divide the tract into two parts, and devise one part to the plaintiff in severalty and the other part to the other devisee in severalty. It seems that the real dispute on the trial was as to the true location of the “dividing line.” It is stated in the case settled on appeal that “one of the main points in the controversy was the location of the beginning point on the road for dividing the land — that is, the 'watering hole’ — each party claiming different location.” So far as we can see, the parties were not tenants in common, and no question in that respect could arise. The plaintiff contended that the “ watering hole ” was at one point, the defendant that it was at a different point on the road mentioned, and the true location of the “dividing line” depended upon whether the contention of the plaintiff or that of the defendant was well founded. The cause of action and the pleadings might appropriately and pertinently raise such contentions. It sufficiently appears that such was the real ground of the *357 controversy, and the Court instructed the jury that “it was for them to sa}r, from the evidence, what point was intended by the testator,” etc. There was no exception to this instruction. The evidence produced on the trial was sent up. It tended very strongly to prove that the “watering hole” was at the point contended for by the defendant and the jury so found. Upon the verdict the Court properly gave judgment for the defendant. It is true, as we have seen, that the Court erroneously said on the trial that the parties were tenants in common of the land, but the opinion thus expressed was immaterial .and not at all pertinent. It did not in its nature mislead or distract the minds of the jury as to the issue submitted to them. It had no application. It is not suggested nor does it appear that it did. It was harmless, and therefore not ground for a new trial. The judgment must therefore be affirmed. Affirmed.