Chappelle v. Roberts

McCLELLAN, J. James Chappell instituted this statutory action of ejectment against J. T. Roberts to recover a certain plot or lot of land described in the complaint. There are two counts, in one of Avhich it is alleged that the plot or lot of land claimed is a part of lot 18 in the Stewart-Wharton survey; and in the other count it is alleged to be a part of Avhat is “knoAvn and called” lot 13 of that survey. The difference betAveen the tAvo counts, as to the property sought to be recOA^'ered, is apparent. The plaintiff introduced the folloAving conveyances, all purporting to convey lot 13, Avith other lands, bearing the dates indicated: Stewart to Watts, February 18, 1860; Bailey, as assignee of Watts, to Troy, December 6, 1869; and Troy to Chappell, plaintiff, September 26, 1871. The defendant introduced those conveyances, purporting, it Avas asserted, to convey the lot in confcroArersy, but not lot 13, viz: Ashley to the state, March 7, 1861, and the state to Roberts, defendant, August 22, 1901. In the view Ave take of this case, the controlling inquiry in its decision beloAV Avas one of facts, viz., whether the lot in suit Avas a part of lot 13 referred to in the pleadings and the conveyances by the plaintiff. The second count of the complaint, Avhich describes tire lot sued for as a part of Avhat Avas “known and called” lot 13, Avould have, if. supported in the proof, required consideration of the question of adverse possession by the plaintiff of the lot fin controversy. But the plaintiff by his oaaui testimony eliminated that phase of the case. He, the record sIioavs, testified that, “unless it (the lot sued for) Avas a part of lot 13, Avitness did not claim the same.” So that-the sole inquiry Avas under the first count, to sustain rvhich the plaintiff Avas bound to establish to the reasonable satisfaction of the jury that the land Sought to be recorwred Avas a-part of lot 13 in the SteAvart-Wharton suiwey or plat. The issue of ad-Arerse possession passed from the case; and the special Avritten-charges, addressed.to that merely mooted question of adverse possession, were'properly refused; and charge No. 2, given for the defendant, being directly re [460] ferable to the only issue of fact in the case, was correctly given. The assignments of error predicated upon the refusal of the court to give, at the instance of thé plaintiff, charges 1 and 1 1-2 are without merit. These charges are clearly argumentative, as well as subject to the criticism that they single out and give undue prominence to, at the-expense of other testimony, certain testimony adduced. • And it may be added that the testimony of the experts'—surveyors—as to the true location of lands and boundaries, was admissible on the issue made in this case.—Rogers on Experts, pp. 253-256, and notes. There is no error prejudicial to the appellant in the record, and the judgment of the lower court is affirmed. Affirmed. Tyson, C. J., ancl Dowdell and Anderson, JJ., concur.