
    *Thomas v. Jones.
    March Term, 1877,
    Richmond.
    Absent, Anderson, J.
    1. Adverse Possession — Statute of Limitations. — J has held possesion of a piece of ground in a city for forty years, which in all that time has been within his enclosure, claimed by him and cultivated as his own property. His said possession has been and is adverse to T and those under whom he claims, claiming the land, and the statute )f limitations is bar to any claim which T might otherwise have to the land; and the title of J thereto, even if it may not have been originally good, has thus matured, and become perfect by adverse possession and by lapse of time, and the operation of the statute of limitations.
    2. AlKdavits of Jurors — Setting- Aside Verdict. — A verdict will not be set aside and a new trial awarded, on the affidavit- of one of the jury made after the verdict was rendered, that he did not consent to it.
    This is a supersedeas to a judgment of the court of hustings for the city of Portsmouth, rendered on the 27th day of October 1871, in an action of ejectment in which William H. Thomas was plaintiff, and Robert Jones defendant. The action was brought for a parcel of land in said city, described in the declaration. The defendant put in the plea of not guilty, on which issue was joined, on which issue a verdict and .judgment were rendered in favor of the defendant. The plaintiff moved for a new trial on two grounds: first, because one of the jurors did not consent to the verdict, as he stated in an affidavit made by him after the verdict was rendered, and exhibited, in support of the motion; and, second, because the verdict was contrary *to the law and evidence. The court overruled the motion; and the plaintiff excepted to the opinion and action of the court in that respect. The court certified the facts proved on the trial of the cause, which are as follows: “That the land in dispute is in that part of Portsmouth called Newtown,” and is in the square which is bounded on the north by Wythe street, which runs east and west; on the east by Second street, which runs north and south; on the south by Harrison street, and which runs parallel with Wythe street; and on the west by Third street: That according to the plan of Newtown, the distance from Second and Third streets was three hundred and sixty feet, and the distance from Wythe to Harrison street was two hundred and forty-two feet; and the above mentioned square contained eight lots, each with a breadth from north to south of - feet, and with a depth from east to west of otie hundred and eighty feet, and numbered in. said plan: That the defendant, and those under whom he claims, bought two of said lots, numbered according to said plan 86 and 87. The first of said lots is situated at the south-west intersection of Wythe and Second streets,' and fronts on said Second street-feet, and runs back one hundred and eighty feet, westwardly. The second of said lots lies south and adjacent to the first of said lots, and it also fronts on Second street - feet, and runs back westwardly one. hundred and eighty feet: that the wife of M. Cooke owned lots designated in said plan as Nos. 88 and 89: that said lot 88, according to said plan, is bounded on the east by the western boundary of said lot 86, and runs westwardly one hundred and eighty feet to Third street; and lot 89 is bounded on the east by said lot No. 87, lies south, and adjoins lot 88, and runs back westwardly one hundred and eighty *feet to Third street: that the deeds under which the defendant claims, by the courses and disances and description in said deeds, give the western boundary of their lots as binding on said lots 88 and 89; that, prior to 1825, the defendant’s house was the ■ only one then on the said square, and all the rest of said square was unimproved and in bushes. At that time Third street and Second had not been surveyed and laid off. In said year M. Cooke had the said Third street laid off by the county surveyor, and as so laid off it remains to this day; bul it has been found out by a survey made in this cause, that the said Third street was not accurately laid off, and instead of having been run according to the plan of said town, parallel with second street, it was so run as to make as to' said square the distance from Third street, as laid off to Second street, three hundred and seventy-six feet, instead of three hundred and sixty feet; that, in A. D. 1825, M. Cooke wishing to improve the said property of his wife, and to sub-divide the same, establish the eastern boundaries of said lots, 88 and 89, by measuring from Third street, as laid off by said survey, one hundred and eighty feet eastwardly; and having thus established the said eastern boundary of said lots, he built on said eastern boundary a fence and a house; which line thus established was by the said M. Cooke in his lifetime, and by those under whom the plaintiff claims, until a short time before the institution of this suit, supposed to be the true boundary between the defendant’s and the plaintiff’s lot. The line thus established by M. Cooke, left between the said line and the western boundary of the defendant’s lots 86 and 87, the narrow strip of land now in dispute, and which is the same that is described in the declaration; so thereafter, and before 1830, the defendant *in enclosing his lots extended his enclosures to the said fence and house established and built by M. Cooke, so as to embrace the said strip of land now in dispute, claiming the same as his own, and has ever since continuously held the same within his enclosures, cultivating and clearing the same: that according to the survey made in this cause, the said Second street was properly laid off according to the plan of said town, and that the defendant has all the land called for by his deeds, exclusive of the land in dispute; and the said disputed land lies wholly outside of the boundaries called for by his deeds, and is a part of the said lots 88 and 89, according to the original plan of said town: that lots 88 and 89 were intersected by a lane running from Wythe to Harrison street: that that portion of said lots, which lies between the said lane and the defendant’s lots, was assigned to P. H. Cooke as one of the heirs of the wife of M. Cooke: that the said P. PI. Cooke conveyed the same to one Smith, and the said Smith conveyed the same to the plaintiff: that the boundaries given in said deeds are in the following words and figures: “Beginning at the intersection of Wythe street, and a lane dividing this lot from the lot of John H. Myers, and running east along Wythe street to the line of Robert Jones’ lot; thence south, along the line of said Jones to the hue of Cavendy’s lot; thence alongtheline of the said Cavendy’s lot west, to the line of the aforesaid lane; thence north, along the line of said lane to the beginning.” That the said Robert Jones, referred to in said deeds, is the defendant in this suit. The plaintiff applied to this court for a supersedeas to the judgment; which was accordingly awarded.
    in the petition for a supersedeas two errors are assigned in said judgment as follows :
    ’'’“First, that the evidence in the cause does not show that the defendant’s possession of the premises was an adverse possession — in this, that the said possession was without color of title — a colorable claim of title.
    “And secondly, the refusal of the court to set aside the verdict for reasons appearing in the affidavit of the juror in the record shown.”
    
      Goodwin and Crocker, for the appellant.
    
      Holladay and Gage, for the appellee.
    
      
       Adverse Possession — Statute of Limitations.—In Va. Midland R. Co. v. Rarbour, 97 Va. 123, the court lays down the law as follows: “The record in the case shows that the possession of the appellees and those under whom they claim was inconsistent with the title of the appellant; that it was accompanied by a claim of title exclusive of the rights of all others; was definite, notorious, and continued for more than the statutory period. It also shows that the land was actually inclosed during that period. Under JAc authorities this was sufficient to bar the right o: the appellant to the land in controversy, however good its title may have been originally,” citing the principal case and Creekmur v. Creekmur, 75 Va. 430; Taylor v. Burnsides, 1 Gratt. at side page 190-2.
    
    
      
      Affidavits of Jurors — Setting- Aside Verdict. — See Steptoe v. Flood, 31 Gratt. 323, and note. See Probst v. Braeunlich, 24 W. Va. 360, citing tbe principal case and Thompson’s Case, 8 Gratt. 641; Bull’s Case, 14 Gratt. 613; Read’s Case, 22 Gratt. 947; Shobe v. Bell, 1 Rand. 39; State v. Robinson, 20 W. Va. 713; Reynolds v. Tompkins, 23 W. Va. 229; State v. Cartright, 20 W. Va. 33.
    
   Moncure, P.,

delivered the opinion of the court.

The court is of opinion that the defendant having, for more than forty years next preceding the institution of this suit, been in the peaceable and uninterrupted possession of the land in controversy, which during all that time has been within his enclosures, claimed by him, and cultivated as his own property, his said possession has been and is adverse to the plaintiff and those under whom he claims the said land, and the statute of limitations is a bar to any claim which the plaintiff might otherwise have to said land; and the title of the defendant thereto, even though it may not have been originally good, has thus matured and become perfect by adverse possession and by lapse of time, and the operation of the statute of limitations.

The court is further of opinion, that the affidavit of one of the jurors, that he did not consent to the verdict which was found by the jury, afforded no good ground for setting aside the said verdict; and the court below was therefore right in refusing to set it aside oil that ground. See Bull’s case, 11 Gratt. 613, p. 626-634, and cases therein cited.

*The court is therefore of opinion that there is no error in the judgment of the court below.

Therefore it. is considered that the said judgment be affirmed, and that the defendant recover against the plaintiff in error, thirty dollars damages, and his costs by him about his defence in this court expended.

Which is ordered to be certified to the court of hustings for the city of Portsmouth.

Judgment aeeirmed.  