
    Cropper v. Carlton and Wife.
    Decided, Feb. 3d, 1819.
    I. Ejectment — Special Verdict — Setting Aside — Failure to Find Material Fact. — A special verdict in Fleetment set aside, for not finding- the time of the death of a person, under whom the lessors of the plaintifi might or might not have been entitJed to the laud in controversy; their title depending upon the time when he died, which, from the circumstances disclosed in the verdict, probably could have been found by the Jury; also, for not finding whether the defendant, or those under whom he claimed, had or had not such possession of the land as would be sufficient for his defence, in that action, whatever might be the state of the title.
    In Ejectment brought in October 1810, by John Carlton and Peggy his Wife, and Tabitha Allen, against John Cropper, in the Superior Court of Accomack County, the Jury found a Special Verdict, stating that John Allen the elder was seised in fee of a tract of land situate in Accomack County, containing by estimation three hundred acres, and, being so seised, upon the day of 1764, duly made and published his last Will and testament, in these words, &c.; containing, among other clauses, the following; “I give and bequeath unto my three sons, Stephen, Edmund and John Allen, three hundred acres of land, to be equally divided between them and their heirs: and, if either of them should die without *heirs, then his part of land, so dying, my Will is shall go to the other two of my aforesaid sons, and to them and their heirs:” that the said John Allen left three sons his only children; to wit, Stephen, John and Edmund Allen; that Stephen, one of his said sons and devisees, departed this life in the year 1771, intestate and without issue; that Edmund Allen another of said sons left this Commonwealth in December 1780, as 2d Eieutenant on board of an American Privateer; that, at the capture of St. Eus-tatia, on 3d February 1781, the said Edmund Allen was taken a prisoner by the British and carried to the City of London ; that he was the elder brother of the said John Allen, they being twins, and was living in the fall of 1781; that John Allen, the other brother departed this life upon the 7th of March 1788, intestate, ' leaving issue Peggy and Tabby Allen, his only children and co-heirs; that, in 1808, the said Feggy Allen intermarried with John Carlton one of the lessors of the plaintiff: that the said John Allen, by Indenture, dated June 7th, 1785, conveyed to Jabez Pitt, with special warranty, against himself and his heirs, the said tract of land containing 300 acres: that Jabez Pitt and wife, by Indenture bearing date August 21st, 1786, conveyed to IAttleton Armitrader 100 acres, part of the said tract: that the said Jabez and wife by Indenture dated September 25th, 1786, re-conveyed fo the said John Allen 145 acres, being a moiety of the tract supposed to contain 300 acres; and, by Indenture dated October 1787, conveyed to John Cropper, the now defendant, 45 acres; being the balance of the said tract; that, on the 8th of August 1788, Littleton Armi-trader, by Indenture, conveyed to the said John Cropper 20 acres, being a part of the aforesaid tract; and, on the 23d of December 1800, by another Indenture, conveyed to the said John Cropper 60 acres, and, by the same Deed, confirmed to him 25 acres, which the said Armitrader had, previously, to wit, on the 24th of July 1794, conveyed to him by a Deed not recorded; being the balance of the 100 acres aforesaid: that, on the 26th day of September 1787, the said John Allen and wife, by Indenture, conveyed to the said John Cropper, with special ^warranty against himself and his heirs, 145 acres, being a moiety of the aforesaid tract, supposed to contain 300 acres; by virtue of which several conveyances, (all which were duly recorded, and were found in hasc verba,) the said John Cropper is now seised of the whole of the said tract of land supposed as aforesaid to contain 300 acres, but appearing from the Deeds to contain only 290 acres; that the witness who stated that he saw Edmund Allen in London, first communicated in the Summer of 1809, that information, and the evidence he had given to the Jury; but the facts to which he deposed, were accidentally discovered in the course of conversation on another subject; and that there was no intimation, made to the witness at that time, of any claim to the land in controversy, or of any intention to commence this suit. They found the lease, entry and ouster, &c., and concluded in the usual form.
    The Court gave judgment for the plaintiff, that he recover his term yet to come, of one messuage, one garden and one plantation with the appurtenances, containing 145 acres, more or less, in the declaration mentioned, &c. Prom which Judgment the defendant appealed.
    Wickham for the appellant.
    Upshur for the appellees.
    
      
      Special Verdict — Setting Aside — Failure to Find Material Fact. — where a j ury finds a special verdict and omits to find in such special verdict some tact which is essential to enable the conrt to enter up any judgment on such special verdict, the court should grant a new trial. Oney v. Clendenin, 28 W. Va. 43, citing principal case as authority. To the same effect, the principal case is cited in Clements v. Kyles, 13 Gratt. 485.
    
   JUDGE ROANE

pronounced the Court’s opinion, as follows!—

The Court is of opinion, that the special verdict in this case is defective, in this, that it does not find the time of the death of Edmd. Allen, therein mentioned, which, from the circumstances therein disclosed, might *probably have been done; and also in this, that it does not find whether a possession existed, in the appellant, or those under whom he claims, of the premises in question; which possession, whatever may be the state of the title, might, in event, have been sufficient for the appellant in this action.

The Judgment is therefore reversed, with Costs, and the cause remanded, in order that a new trial may be had therein. 
      
       Note. It seems, that, if Edmund Allen died without issue, before the 7th of June 1785, (when John Allen made his first conveyance mentioned in the Verdict.) or, indeed in the life time of the said John, the title of the latter was good under the will of John Allen the elder, to the whole tract of 300, or 290 acres, and therefore the defendant’s title, regularly derived from him, with warranty against his heirs, was also good: — but, if Edmund Allen died after the death of the said John Allen his brother, and without issue, the lessors of the plaintiff were entitled to one half of the land, as heirs, not of their father, but of Edmund Allen. The time of Edmund Allen’s death was therefore important. — Note in Original Edition.
     