Kirkland v. Thompson

The opinion of the court was delivered, by Woodward, C. J. Thompson, the plaintiff below, claimed under a warrant and survey in the name of Isaac Morton. This tract was a parallelogram, but along the south and west sides two lines are marked upon the survey, very near together, though separate, and whose greatest divergence is at the south-west corner. These are called the outer and the inner lines, and one of the questions upon the trial was whether the outer or the inner line was the true line. The defendant below, Kirkland, claimed under a younger warrant in the name of Frederick Foulke, which ran across the southwest corner of the Morton survey, cutting off a triangle from the parallelogram. This part of the Foulke warrant had been divided between Nancy Kirkland and Ebenezer Kirkland, by a line which left most'of the interference to Nancy, though a small part of it fell to Ebenezer. If the outer line of Morton was the true line, the interference of Ebenezer’s part of the Foulke tract amounted to three acres, one hundred and thirty-two perches ; if the inner line be established, the interference would be but one acre and one hundred and fifty-two perches. The ejectment was against both Ebenezer and Nancy for fifteen acres of land, and both appeared and pleaded the general issue. The inner line of the Morton survey was established by the verdict, and all the interference within it given to the plaintiff. The verdict was set aside as to Nancy, but judgment was entered upon it as to Ebenezer for the one acre and one hundred and fifty-two perches, and he took the writ of error. The third error complains that the court refused to say that there was no evidence of the defendant’s possession of the land in dispute. We suppose the service of the writ was given in evidence, though the fact does not distinctly appear, and if it was, that made out a primá facie case of possession. True, the defendant might countervail it by proving himself out of possession, and had he done so, nothing could have been recovered except costs. If the defendant did not mean to take defence for any part of the interference that was within the inner line of the Morton survey, he should have limited the effect of his plea of not guilty, by filing of record a description of the land he meant to defend. In Hill v. Hill, 7 Wright 525, we tried to state the practice upon this subject intelligibly, and it would be well if defences in ejectment were shaped conformably to it. Disclaimer is not, properly speaking, a plea in ejectment; the only proper plea is that which the statute prescribes, not guilty. But the plea of not guilty, always applicable if standing alone to whatever is described in the plaintiff’s writ, may be limited and brought down to the real point of contest by a description, filed therewith, of the part of the premises for which defence is intended to be taken. And [219] ■when this is done, it operates as a disclaimer of the possession of all else in the plaintiff’s writ, than that only for which specific defence is taken, and if no more is recovered than the part disclaimed the plaintiff recovers no costs. Here there was not only no disclaimer, but there was direct proof of such acts of dominion and ownership by the defendant as amounted in law to possession. Indeed, in possession under the Eoulke warrant and claiming by its lines, that fact of itself, without the other facts recited by the learned judge, was sufficient to justify ejectment when any entry had been made or an act of ownership done upon the interference in pursuance of title under the Eoulke warrant. Eor, though the constructive possession of Thompson would not be ousted by the lines of the younger survey, yet entry and acts upon the ground, within the interference, under that survey would oust the constructive possession of the real owner and put him to his ejectment. There was evidence of such entry and acts, and therefore we think the court answered the defendant’s points correctly. ' The evidence offered in the first bill of exceptions was the merest hearsay, and was properly rejected. Nor was its rejection material, for the inner line of the Morton survey was established without it. The deed mentioned in the second bill was not evidence without the letter of attorney to McCartney, and this also was an immaterial ruling, for even if Kirkland had shown no title whatever, Thompson could only recover by showing a perfect title. Perceiving no error in the record, the judgment is affirmed.