
    HANNAH Y. MILLER, PLAINTIFF, v. WILLARD J. WILLIAMS, DEFENDANT.
    Submitted October 16, 1925
    Decided January 21, 1926.
    Ejectment—Question Involved the Existence of a Particular Monument at the Time the Deed From the Plaintiff to the Defendant Was Executed—All Questions Were Those of Fact, and the Evidence, in Substantial Contradiction, Was Not Sufficient to Justify the Conclusion That the Judgment For the Defendant Was Against the Weight of Evidence or That the Jury Disregarded Itsi Duty.
    On plaintiffs rule to show cause.
    Before Justices Parker, Minturk and Black.
    For the plaintiff, Joseph M. Boseberry & Son.
    
    For. the defendant, John H. DahlJce.
    
   Pee Curiam.

This was an ejectment suit, and, although several reasons were assigned for making the rule absolute, substantially ,only one is argued, and that is that the verdict was against the weight of the evidence. The question for consideration by the jury was, in substance, whether an alleged monument described as “a stake and pile of stones” was in existence at the time the deed from the plaintiff to the defendant was executed, and, if so, was at the point claimed in the testimony for the plaintiff. The judge properly instructed the jury that if the monument was in existence, it would control the second course with relation to direction and distance, but if not, the course and distance stated in the deed would control. Plaintiff claimed that defendant, after receiving his deed, had fenced to a line based on this alleged monument, and had, subsequently, reset his fence some distance on land not conveyed to him. Defendant admitted resetting the fence, but claimed that it had been set in the wrong place at first by mistake, and that the resetting was a mere correction of the line, and denied that such line had been fixed by any such monument as claimed by plaintiff, or that he had, subsequently, removed the same as plaintiff alleged.

These were all questions of fact which were properly submitted to the jury; the evidence was in substantial contradiction, and we are unable to say that the verdict of the jury, which evidently adopted the defendant’s theory of the facts, was so greatly against the weight of evidence as to show that the jury disregarded its duty in the premises.

The rule to show cause will, accordingly, be discharged.  