Kyser v. Cannon

Welch, C. J. This verdict is manifestly too indefinite to be the basis of any valid judgment. It is simply void for uncertainty, and should have been set aside, or refused to be received by the court. It finds for the plaintiff for two feet in width of the strip of seven feet, without showing from what part of the strip the two feet are to be taken— whether from the north, south, or middle part. The evidence shows that the plaintiff owned and occupied on the ■north side of the seven feet strip, and, by the pleadings, it is admitted that the defendant is in possession of the entire seven feet, and that the south line of the strip is identical 361 with the south line of lot 38r Now, if plaintiff recovers ££ the strip of land, to be two feet in width, instead of seven feet in width,” the two feet recovered must rest on the south line of lot 38, leaving the defendant in possession of five feet between the two feet so recovered and the remainder of plaintiff’s farm. Such a thing never could have been intended by the jury. They must have intended to give the plaintiff two feet off the north side of the strip, but the language of their verdict is clearly insufficient for that purpose, and, in fact, describes no land whatever. We think, therefore, that the court erred in refusing to set this verdict aside, and in rendering judgment upon it. As the case must go back for retrial, it is proper to decide a question raised upon the pleadings, and which may become important upon such retrial. The second defense sets up the statute of limitations, and also twenty-one years’ adverse possession by defendant and those under whom he holds, and the reply simply denies that the defendant has occupied the premises adversely for twenty-one years, thus apparently admitting that the cause of action did not accrue within twenty-one years, and that the defendant and those under lohom he claims have (in succession) been in adverse possession for twenty-one years. The •question is whether, upon this state of pleadings, the defendant is entitled to judgment. We think not. The second defense may be regarded as surplusage, being merely .a second denial of plaintiff’s title, by asserting title in defendant. Judgments reversed, and cause remanded.