Wilkinson v. Lyons

The opinion of the court was delivered by Swayze, J. The claim of the plaintiff that the plea does not amount to a denial of plaintiff’s title is inadmissible. The defendants defend for so much of the land claimed by plaintiff as is included in the description in the deed to defendants’ ancestor. If that deed conveyed the disputed gore, the plea defends therefor. The issue presented, in substance, is whether that deed in fact conveyed the disputed gore. An examination of the deed does not suffice to solve the question. So far as the mere language of the two deeds is concerned, both descriptions might be correct. It is only when an attempt is made to locate, upon the ground, the tract conveyed that the inconsistency between the two lines appears. This presents a question of fact for a jury, not a question of the construction of the deed for the court. In Platt v. Bonte, 49 N. J. L. 679, the judge sat both as judge and jury. The evidence as to the acts of the parties was admissible. Whether or not it would go so far as to show a practical location was something the trial judge could not tell in advance. When he found it did not show a practical location, he took that question from the jury. The evidence was, however, admissible as tending to establish the actual lines of the property conveyed. Opdyke v. Stephens, 28 N. J. L. 83. The questions as to the applications to the trust company for a loan and a guaranty were proper cross-examination in view of the testimony of the witness on his direct examination as to the survey made for that company. The question as to the witness having seen a stake near the disputed corner was clearly 'proper, since it might be argued that it was a monument, and if at any rate helped to indicate the position that had been taken by the parties, especially in view of the claim that one of the defendants had agreed that the fence might be moved. [202] The question as to how many heans could be raised upon the disputed gore was admissible, since it bore, at least, upon the question of damages. The other questions raised as to evidence seem to call for no remark. We find no harmful error in them. The fact that both sides requested the direction of a verdict did not make it necessary for the court to take the ease from the jury when it was requested to submit certain questions specifically. Empire State Cattle Co. v. Atchison Railway Co., 210 U. S. 1. The judgment must be affirmed, with costs. For affirmance—The Chancellor, Chief Justice, Garrison, Swayize, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Heppenheimer, Williams, JJ. 16. For reversal—None.