Sheldon v. Perkins

Poland, Ch. J. The general doctrine of the judge’s charge, that if the line to which the plaintiff claims had been recognized, treated and acquiesced in for a continuous period of fifteen years, by the plaintiff on.qne side, and the predecessors in title of the defendant. [556] or his daughter on the other, that the line would thereby become, established and binding between them, is not denied by the defendant’s counsel to be the law. The alleged error of the court below consists in not acceding to the defendant’s request to charge. The request assumes facts as true which the exceptions do not show there1 was any evidence of, in order to avoid the effect of an acquiescence in the line by Whipple for a part of the time he was in possession of the land now owned by the defendant’s daughter. That is, that Hamilton contracted to sell the land to Whipple by the acre, that it was subsequently to be surveyed and measured to ascertain the-quantity, and that this was not done for two or three years after Whipple entered into possession, and that until this was done, Whipple should be treated as the tenant of Hamilton, and having no. power to acquiesce in any boundary line so as to bind his landlord. Nothing of this appears in the exceptions, and therefore any request for a charge based upon them cannot be regarded. The case shows that Whipple purchased the land of Hamilton, entered into-possession, and occupied the land as his own for the whole period till he sold to the defendant in 1850. He never had a deed from Hamilton, but two years after he sold the land to the defendant, the land was deeded by Hamilton to the defendant’s daughter. While Whipple was thus in possession of the land, in his own right as owner, we think he is to be regarded as the owner, and that. his acquiescence in a boundary line is as binding as if the legal title-had been conveyed to him. If the facts were true which are implied in the defendant’s request to the court, and still Whipple in fact during the time, conceded and acquiesced in the plaintiff’s line, it is by no means clear that this, part of the time should be deducted from the whole period of his occupation. If he went in under a contract to become the owner of the land, and that contract was executed so that he did in fact become the owner, and he occupied as the owner for the whole time, we see very little reason for dividing the time, Although the legal title remained in Hamilton, he held it in trust merely for Whipple, who was the real owner, and Whipple really occupied the land as his own, and not as Hamilton’s. The evidence was contradictory as to the occupation, and acqui [557] •escence in the line. The plaintiff’s evidence tended to prove that it was for more than fifteen years. The defendant’s evidence tended to show that it was for a less period than fifteen years. This was wholly a question of fact for the jury to decide, and unless all the evidence was one way, it was proper for the court to submit it to them to determine. The. motion for a new trial was addressed to the sound discretion of the county court, and their decision of it, whether right or wrong, cannot be revised on exceptions. This has often been decided by this court. The only mode of bringing this question before this court is by a petition for a new trial, and if it were thus properly before us, it would be quite impossible for us to say upon the evidence detailed, that the verdict was so palpably and clearly contrary to the general tendency of the evidence, as to justify overturning the verdict. The defendant also offered in aid of his motion for a new trial, the affidavit of one of the jurors, to show upon what ground the verdict was rendered, which affidavit the court refused to receive as evidence. If the court improperly rejected evidence in support of the motion, it would doubtless be an error properly revisable on exceptions. It has long been settled in this state that affidavits of jurors will not be received to show any impropriety in the conduct of the jury, or improper mode of arriving at the verdict, in order to set it aside, and this is now the general opinion in the courts of all the states so far as we know. This affidavit was not offered to show improper conduct in the jury, but merely to show upon what ground the verdict was rendered. But in our judgment it would be productive of great mischief to receive ex parte affidavits of jurors, after they have separated, for such a purpose. Where a case is submitted to a jury on various grounds, and where perhaps the result is not perfectly satisfactory to all of them, to allow them to be severally catechised after they have separated and had interviews and conversations with parties and counsel, and their affidavits brought into court to explain their verdict, would produce the greatest uncertainty and embarrassment, qf the state of the case is such as to make it proper or important to [558] know the ground upon which a verdict of the jury is given, the proper course is to suggest it to the court so that it may he learned from the jury in open court, while they are together and under the control and direction of the court. The affidavit was properly excluded. The judgment is affirmed.