
    
      Epsey E. Broughton & others vs. Edward Broughton.
    
    
      A grantor, who executes a conveyance of his land to defraud his creditors, is bound thereby, and, in an action against him by the grantee or his heirs, to recover the land, will not be allowed to show the fraud of the grantee and himself, — the want of all real consideration, — and the intention of both parties that the title should not pass, — for the purpose, either of invalidating the deed, or of availing himself of the maxim, in pan délido potior est conditio defcnckntis, ant possidentis.
    
    If the consideration money paid by the grantee to the grantor at the time of the execution of the conveyance was, in fact, the'grantor’s own money, and was used as a mere blind to the subscribing witnesses, still there would be no resulting trust in favor of the grantor.
    
      Such a grantor, for the purpose of raising the presumption of a re-conveyance, was not allowed .to show the fraud and intention of the parties — that the money paid was the grantor’s own money — that the creditor, to delay whom the conveyance was executed, had been paid — that the grantor had been allowed to remain until the death of the grantee, near ten years, in the undisturbed possession, use and enjoyment of the land, and that the grantee had always, by both language and conduct, clearly disclaimed title.
    If plaintiff, in trespass to try title, can make out a location without a survey, he may, if he chooses, proceed without one.
    In a declaration in trespass to try title, though it is better, it is not necessary to describe a close by its abuttals, or to give it any precise identity: — it may be described as a close lying in Sumter district.
    Plaintiffs in trespass to try title declared for a plantation and close lying in Bumtev district — in one count giving boundaries, in others none: — they showed title by proving two deeds of conveyance from defendant to their ancestor for fifteen or more tracts of land described by reference to the original grants, and they proved that defendant resided on and used some of the lands embraced in the conveyances, claiming the rest as parcel of his entire possessions — that the several tracts in dispute lay adjoining each other, and called for each other: on this proof, the jury found for the plaintiffs “the several tracts of land contained in the deeds of conveyance given by” the defendant, &c. “bearing date,” &c. and the presiding judge certified the deeds as those given in evidence, and referred to in the verdict : — on appeal Mid, that the description in the verdict sufficiently corresponded with the description in the declaration; that the verdict was, substantially, a finding for the plaintiffs of the land in dispute; and that it was sufficiently certain.
    In executing a writ of habere facias possessionem,, it is the plaintiff’s duty to point out the land to the sheriff, and to take possession, at his peril, of only so much as his judgment covers.
    
      Before Withers, J. at Sumter, Spring Term, 1851.
    This was an action of trespass to try title. The first count in the declaration described the locus in quo as “ a certain plantation, close and tract of land of the plaintiffs, situate, lying and being in Clarendon county, in the district and State aforesaid, bounded by the Santee river, and by lands of Richard Richardson, Mrs. E. P. and B. Manning, Jeptha Dyson, Edward Brough-ton, Richard C. Richardson, and others — the second count described it as — “ a certain other plantation and close of the plaintiffs, situate, lying and being at and near Fulton, in Clarendon county, in the district and State aforesaid — and the third and last count as — “ a certain other plantation and close of the plaintiffs, situate, lying and being in Clarendon county, in the district and State aforesaid.”
    The report of his Honor, the presiding Judge, is as follows:
    “ The plaintiffs, as heirs at law of Edward Broughton, jr. deceased, brought this action of trespass to try the title (and for mesne profits) to a number of tracts of land, perhaps as many as fifteen, and based their right upon two deeds of conveyance in the statutory form, executed by the defendant and delivered to Edward Broughton, jr. his son, the one on the 15th March, 1838, and the other on the 23d October, of the same year, the first acknowledging a consideration paid of $3000; the last, one of $2950. James B. and Thomas C. Richardson were witnesses to the execution of the first deed, and said some money was received and counted by defendant on occasion of its execution. The witnesses to the last deed were dead, and their handwriting was proved.
    
      “ The grounds of appeal are numerous, and have been extended (with no objection on my part) since the first notice was served.. I hope to be able to present the case in' an intelligible form, without following the order of the grounds of appeal, or referring specifically to each.
    t! The plaintiffs’s case was presented as follows: — 1st. Proof of the execution of the deeds, which professed to convey the following tracts of land,’ and then described each tract, by reference to a grant represented to cover it, with boundaries. 2d. The adduction of a plat by John N. Rarrillon, who was sworn as a surveyor appointed for plaintiffs, who explained his plat, and what he had done in obtaining the means of constructing it. 3d. Some evidence of the value of the lands, in reference to yearly rent, and proof that defendant had continued to live where he had long lived before the date of the conveyances, up to the time of trial, using the lands whereon he resided, with saw and grist mills, as he had been accustomed to do anterior to the conveyances to his son. 4th. That the son had died in 1847, and a written notice to quit, in behalf of plaintiffs, served on the defendant in January, 1848.
    
      “ It appeared on Barrillon’s cross-examination, that, although he affirmed he was satisfied his plat presented the true location of such of -the tracts of land described in the deeds of defendant as were exhibited upon it, (some two or three he found no traces of, and -did not delineate at all,) yet he had not run the lines of a single parcel,, nor any portion of any line of more than two parcels. Of one tract, in the Wateree Swamp, he had run one line in 1832, for the purposes of a contest then waged between defendant and the late Governor Manning. Almost the entire plat was constructed by means of plats of adjacent lands, owned by Richard Richardson, bounding some of the parcels in question, by a plat of re-survey, made by Surveyor Boyken of other adjoining lands bounding other parcels in question, and by the use, in the closet, of copies of the grants described in the defendant’s two conveyances. A large body of the land delineated, lay in the swamp, which he did not visit at all, on the occasion of this survey. He said he had given Broughton regular notice, and when he announced his readiness to proceed with the survey, Broughton offered him no facilities, but said, “ if Mrs. Epsey Broughton had any land there, she was welcome to survey it.” Whereupon he proceeded, was upon the ground perhaps not more than one day in the whole, surveyed a part of a line of one or two tracts, and with the means thus acquired, and those before specified, constructed his plat. He persevered in affirming his belief that he had accurately located all the parcels conveyed, except two or three, and that defendant resided on and used some of the lands embraced in his conveyances, claiming the rest as parcel of his entire possessions. He said the several tracts in dispute lay adjoining each other, and called for each other.
    
      “ The defendant opened a commission, and the line of his evidence being anticipated, objection was made to it in advance.— The questions propounded to the witness were read, and indicated what description of evidence was urged and objected to, and it was agreed to make the questions to be decided at once.
    “ The result was, that I excluded evidence proposed by defendant, to the effect that his conveyances to his son were, by the knowledge of both parties, intended only to shield the lands conveyed from a creditor, pressing a demand against the defendant, until the latter could pay the demand, which he had since done ; that no consideration moved from the son, in reality, inasmuch as the money, which the witnesses to the first deed saw, was the defendant’s own money, and it was used on the occasion as a mere blind to the witnesses; that the actual possession, use and enjoyment of the land remained, as before, in the defendant, unquestioned by his son ; that the language and conduct of the latter implied a clear acknowledgement ot the foregoing facts; that by both he had disclaimed title. Such evidence, it was insisted, was legally available for defendant to shew, 1st. that the deeds of conveyance were utterly void; 2d. that at any rate the proof, if admitted, would raise a resulting trust in favor of the grantor, whose money was the consideration ; 3d. it was pertinent to lay a foundation on which the presumption of a re-conveyance might be well rested ; 4th. to sustain the maxim, In ;pari delicto potior est conditio defendentis, aut possidentis.
    
    “ I felt constrained by authority, and I suppose it was well founded, to overrule the position of defendant. I did not perceive how the cases of Roberts vs. Roberts, (2 Barnw. & Aid. 367) and Osborne vs. Moss (7 John. R. 161) could be rebutted; and to these may be added the leading case of Hawes vs. Leader, (Croke, James, 270,) and Jackson vs. Garnsey, (16 John. R. 189.) I believe, in every one of them, the defendant, who or whose administrator was sued, had retained possession, and the action was brought to enforce a contract in which the parties to it had participated in the fraudulent design. In Roberts vs. Roberts, and Jackson vs. Garnsey, the action was to recover land. In the latter the idea of a resulting trust was also urged, unavailingly, for the defendant. As to the presumption, to be built upon the evidence designed for that purpose and rejected, of a re-conveyance of the land in question, it appeared to me that the defendant’s fraud was, at last, the only basis that could be found for that position. The idea implied a valid convey-anee of the fee to Edward Broughton, Jr. and how his verbal declarations, his omission to pay taxes, his silent or even declared permission to the defendant to sell a part, and such like testimony, could operate to re-convey the fee of land, I was unable to perceive.
    “ The case went to the jury upon the questions: 1st. whether any trespass had been proved ; 2d. if so, upon how much of the land conveyed in the two deeds % What I said to the jury on those inquiries was, I presume, no wise objectionable in the view of defendant. The plaintiffs’s counsel claimed such a verdict as the jury rendered, to wit: “ We find for the plaintiffs the several tracts of land contained in the deeds of conveyance given by Edward Broughton, Sr. to Edward Broughton, Jr.” (specifying the dates) “ and forty dollars damages annually from 1st January, 1848, without interest.” This verdict was rendered notwithstanding the expression of my opinion, that such a verdict rvould not be proper in this action ; but that the verdict should find a specific parcel of land, with such metes and bounds as would enable the sheriff to execute a writ of habere facias possessionem. To this effect I thought was the decison in Jones vs. Moore & Owens, a case from Barnwell, to be found, I believe, among the unpublished cases of the May Term of 1850 : A verdict for the plaintiffs, for their distributive share of the land, (which was as a whole, definitely found) without specifying the number of acres found for plaintiffs, was set aside, as a writ of possession could not go on such a verdict; and that decision was placed (if I rightly remember) upon the authority of Bun. on Ejectment.”
    The defendant appealed, and now moved in arrest of judgment, on the grounds:
    1. That it does not appear, upon the face of the record, that the lands found by the verdict for the plaintiffs are the same lands described in the declaration, or any part thereof.
    2. Because the finding of the jury is irregular, informal, and a nullity, and no judgment can be entered up thereon.
    
      And, failing in that motion, then he moved for a new trial, upon the foregoing, as well as the following grounds:
    1. Because the description of the lands in the verdict does not correspond with the description of the lands contained in the declaration, or any part thereof.
    2. Because no actual survey of the lands in dispute was made, nor any identification of the locus in quo by other proof.
    3. Because there was no evidence that the lands described in the declaration are the same lands as those described in the deeds, under which the plaintiffs claim.
    4. Because his Honor, the presiding Judge, refused to receive the evidence tendered to raise the presumption of 'a re-conveyance to the defendant by Edward Broughton, Jr., under whom the plaintiffs claim.
    5. Because his Honor excluded the evidence tendered to prove fraud on the part of Edward Broughton, Jr., in obtaining the said deeds, under which the plaintiffs now claim.
    6. Because, if the father and son were in pari delicto, the father being in possession, and the possession having never been changed, a Court of Justice ought not to sustain a possessory action on the part of the son, or volunteers claiming under him, but leave the parties as they found them, and that the proof to make out this state of facts was improperly excluded.
    
      DeSaussure, Moses, Haynsworth, for the defendant.
    
      B. F. Hunt, Mayrant, Richardson, for the plaintiffs.
   Curia, per

O’Neall, J.

This Court concurs with the Judge below in his ruling, that the evidence offered by defendant to shew combination between him and his son, the ancestor of the plaintiffs, in the execution of the deeds, to defeat the defendant’s creditors, was inadmissible ; and to his reasoning in that particular, it would be a work of supererogation to -undertake to add a word.

It is a mistake to suppose, that the parties being in pari delic-to, the Court will refuse the remedy demanded by the plaintiffs. The deed, as between the son and his father, is perfectly good. The defendant, by a stern, but a proper policy of the law, is excluded from the proof which would shew the fraud. He is, in this respect, the actor ; his fraud silences and estops him from averring against the deed.

I am free to confess, that I think a case might be made out by one similarly situated with the defendant, where a re-conveyance might be presumed, and where there had been a long possession in the grantor, accompanied by acts, or admissions of the grantee, unequivocally conceding the title to be in the grantor. But here the proof proposed, did not come up to this rule, and hence could prove nothing.

The only matter deserving serious consideration, is that which, questions the sufficiency of the verdict. The 4fcth rule of Court, which requires a surveyor “ to represent ih> his plat, as nearly as he can, the different enclosures of the patties, and the extent or boundaries, within which each party may have exercised acts of ownership,” was certainly intended to give the Court the means of making verdicts certain, where they depended upon the statute of limitations, and perhaps affords a presumption that the surveys made under the rule of Court, were otherwise supposed to be certain enough. It was once supposed a survey in all cases of trespass to try titles was necessary, and without it no verdict could be rendered. But Frean ads. Cruikshanks, (3 McC. 84,) destroyed that. The same ruling was repeated in Thomas & Ashby vs. Jeter & Abney (1 Hill, 380.)

Ever since Frean ads. Cruikshanks, parties have, when they chose, been permitted to run the risk of making out a location, without a survey.

It is not necessary in a declaration to describe a close by its abuttals, or to give it any precise identity; it may be described as a close lying in Sumter district. If the defendant owns any land in that district, he may, by pleading liberum tenementum, drive the plaintiff to the necessity of new assigning, and describing the close by its abuttals. In general, however, it is best to give in the declaration, as precise a description of the land in dispute as possible. That was done here.

The surveyor’s plat was made up of such uncertain means, that of course no confidence could he placed in it.

The description in the declaration corresponded with the deeds, and the verdict refers to them for the description of the land found.

I perceive no objection to that, for it is only adopting one portion of the evidence, to define the locus in quo, instead of another. The surveyor’s plat is evidence in the cause, and so are the deeds.

Runnington, in his treatise on Ejectment, 247, speaking of special verdicts, says : verdicts are not to be taken strictly, like pleadings ; on the contrary, the Court will collect the meaning of the jury, if they give such a verdict that they can understand them.” This rule,-applicable to special verdicts, must equally apply to a general verdict.

Taking that as our guide, on reading this verdict, and looking to the record whe.re the lands are described, and ascertaining, from the Judge’s certificates and the dates of the deeds, that they were given in evidence, and are referred to by the jury to ascertain more definitely the locus in quo, what is to prevent us from giving effect to the verdict 1 It is substantially the finding of the land in dispute for the plaintiffs, with damages. That such a verdict is good, is plain from Frean ads. Cruikshanks and Thomas & Ashby vs. Jeter & Abney.

The only object of defining by a survey, or other certain matter, the land recovered, was to give precision and certainty to the writ of habere facias possessionem. But, it seems, there is no necessity for this; for the plaintiffs are bound “not only to point out to the sheriff, that of which, in execution of the writ, he is to deliver them possession, but to take possession, at their peril, of only that, to which they have title.” (Run. on Eject. 432.)

The motion in arrest of judgment, or for a new trial, is dismissed.

Evans and Whitner, JJ., concurred.

Frost, J.,

dissenting. The declaration described the land as one entire tract. By this description, the plaintiffs claim, as included in the external boundaries, fifteen or more tracts of land, which the defendant, by two deeds, had conveyed to his son, Edward Broughton, junior. Barrillon, who had been appointed surveyor of the plaintiffs, by an order of Court, returned a plat of the land, and was examined as a witness. He testified that he had located, as represented in the plat, all the parcels, except two or three. The Circuit Judge was not satisfied with the evidence of the location; and to obviate the effect of his observations to the jury on that subject, the attorney for the plaintiffs tendered to the jury the form of a verdict, which they adopted, and accordingly found “ for the plaintiffs, the several tracts of land, conveyed in the deeds of Edward Broughton, senior, to Edward Broughton, junior.” These deeds were certified by the Judge who tried the case, to be those referred to in the verdict.

If an action of trespass to try title is brought to recover several tracts of land, the plaintiff may combine them all in one description, by the external boundaries of the whole, if they be contiguous; or he may declare for the several tracts, by a description of each. But whichever mode of description may be adopted, the plaintiff cannot recover any more than he can locate : because a judgment cannot be rendered for land which is not shewn to exist; and a trespass cannot be proved on land of which no locality is shewn. If it is not shewn that the tracts are contiguous, and united under one possession, a recovery for all the tracts cannot be supported by proof of a trespass on one of them. It cannot be known where two or three tracts, not located, may be situate. The tracts, not located in this case, may not lie in Sumter district. The plaintiffs, then, do not, by taking a verdict for the several tracts included in the deeds, escape from the objection that no judgment can be rendered for the entire tract described in the declaration, because two or three of the tracts were not located, nor shewn to be comprehended in the description. On this ground alone, the verdict should be set .aside and a new trial granted.

But the most important ground of exception to the verdict is,' that it is variant from the issue made by the record.

The design of all the rules of pleading is, to attain and present a certain issue of law for the Court, or of fact for the jury. The declaration must state a sufficient cause of action, to support a judgment for the plaintiff. If it does not, as a general rule, judgment will he arrested after verdict. The defendant must answer the plaintiff’s case, or his plea will he overruled, on demurrer. The replication must not depart from the case made by the plaintiff in the declaration. Evidence must be confined to the issue. No certain issue can be presented, if the subject of the issue be uncertain. Hence the necessity that, in the declaration, the subject, of which recovery is sought by the action, should be described with particularity. The rules of pleading form a system of vexatious annoyance and expense, if it be not required that the verdict should be confined to the issue. It would be very idle and absurd to direct all the pleadings to the statement of a precise issue of fact, to be submitted to the jury, whilst the jury are not restrained, in their verdict, to the issue submitted. The judgment must conform to the verdict; and if the verdict vary from the issue, the judgment will be unsupported by the record, and present the inconsistency, a judgment affirming the right of the plaintiff to a subject, which does not appear, by the proceedings on which the judgment is rendered, to have been submitted to the consideration of - the Court. The rule of practice is well stated in Playier’s case, 5 Rep. 35. The declaration ought to reduce the generality of the writ to a particularity, and to declare that, with certainty, which' is briefly touched in the writ; to which the defendant may make a certain answer; and on which a certain judgment may be rendered, quia oportet quod certa res deducatur in judicium.

Less certainty is required in the statement of the subject of the action, when it is brought for damages, than when it is brought for the recovery of a particular thing.- When damages only are given, an imperfect statement of the plaintiff’s cause of action may be cured by intendment. But the rule applies to all forms of action, that the verdict must not he variant from the declaration ; as if the verdict finds a bond or contract different from that declared on; or, in slander, words different from those set out. If the action is brought for a certain thing, it must be certainly described, in order that it may he identified, whether the subject of the action he a chattel or land. In detinue, the declaration must describe the chattel demanded, so certainly, that it may be known, to be delivered to the plaintiff in specie. Com. Dig. Pleader, Detinue. In real actions the land must he described with minute exactness, extending to the precise number of acres and the quality of the land, as it may be common, pasture, or arable. In ejectment less particularity is required. The reason assigned is, that in this action the land is not recovered ; but only the possession. In our action of trespass to try title, the reason for the exception of ejectment from the rule that obtains in real actions, does not apply. Since ejectment has become, in England, the most common action for trying the title to land, the reason has ceased there also. Yet still, in ejectment, a less exact description of the land is required, than in real actions. But a practical degree of certainty in the pleadings and verdict is enforced. In Luxon vs. Andrews, March’s new cases, ejectment was brought for a messuage. The jury found the defendant guilty, as to so much of the messuage as stood upon a certain river. A distinction was taken between trespass, in which damages only could be recovered, and ejectment, in which the thing itself is recovered ; and it was held, that though a verdict, which finds only a part of the land demanded, is good, it can only he so when it finds a certain part, because, otherwise, the Court cannot give judgment. Crawley, J. differed from the Court, and argued “ that the verdict should be good, because the demand here is certain (that is, certainly described in the declaration) although the jury found it only in tanto ; but if the writ had been brought in the terms of the verdict, it would not have been good.” To which it was replied, by Reeve, J., that which is naught in the demand, is naught in the verdict; and, therefore, naught in the judgment; and, therefore, the Court could not give judgment.”

In our Courts, no satisfactory rule respecting the requisite certainty of the description and verdict, in trespass to try title, is to be found. In Heyward vs. Bennett, (3 Brev. 113,) the verdict found for the plaintiff “ all the lands laying westward of Cox’s creek, from the mouth thereof upwards, until it intersects the first boundary line it comes to.” A new trial was granted on account of the uncertainty. In Lahiffe vs. Hunter, (Harp. 184,) the declaration described the land as “ the plantation called Green Grove, lying on the north-east side of the road to Ashley ferry.” The verdict found for the plaintiff the land described in the declaration. The judgment of the Court, refusing a new trial, was sustained, on the ground that the defendant had made default, and thereby admitted the locus in quo. The case of Frean ads. Cruikshanks, may be cited to maintain the opinion of the Court in the case now adjudged. The declaration charged a trespass on the lot and close of the plaintiff, in State Street in Charleston. The verdict found for the plaintiff the lot, adding the boundaries. On a motion for a new trial, it was admitted the verdict could not supply the imperfect description in the declaration ; but it was held good “ as a general verdict for the plaintiff;” and it was intimated that the description might be sufficient, because the plaintiff had to point out to the sheriff the close recovered, and must take possession at his peril. It is difficult to comprehend what is meant by a good “ general verdict for the plaintiff.” If the additional description is expunged from the verdict, it finds for the plaintiff premises, by a description, confessed in the opinion of the Court, to be insufficient to identify them. A good “ general verdict for the plaintiff,” then, seems to mean a verdict which finds for the plaintiff a lot or tract of land, without certainly ascertaining what particular lot or tract of land it is. The judgment on such a verdict can only be, that the plaintiff recover a tract of land undesignated, and, therefore, unknown, with the authority of the Court to take possession of it at his peril. In Jones vs. Moore & Owens, (5 Strob. 134,) this Court made somo advance towards establishing a rule of practical certainty, in trespass to Iry title, by holding, that a verdict for an undivided distributive share of land is void, for uncertainty; and that such an interest should be designated, as a certain aliquot part of the land, or otherwise certainly expressed.

By our practice, the land claimed in an action to try title, is usually described in the declaration by the description used in the plaintiff’s title deeds ; though sometimes, by other and more accurate metes and boundaries. A surveyor is appointed by the Court to survey the plaintiff’s claim, and is required to return to the Court a plat of the land, exhibiting its shape, boundaries, and the marks of its location. The verdict may find the premises described in the declaration; or, which is more common, because more certain, the verdict may describe the land found for the plaintiff, by reference to the plat. This is certified by the Judge, and becomes a part of the record. On the trial, the surveyor, and other witnesses, if necessary, are examined to prove the location of the land claimed by the plaintiff, and that it is represented by the plat. If the plaintiff fails to locate his claim, or succeeds only partially, his action is defeated, in whole or in part. It has never been heretofore permitted, when the plaintiff has failed to prove the location of the land described in the de-> claration, that he should take a verdict for the lands described in the deeds produced in evidence of his title.

If the verdict may vary from the issue, and find for the plaintiff, land, by some other description than that set out in the pleading, it is a useless form to require any description of the land demanded in the declaration. The parties may as well go to trial on a blank sheet of paper, with liberty to the plaintiff to take a verdict for any lands for which he may prove the title deeds.

It may be affirmed, in support of the judgment of the Court, that it is sufficient if the verdict finds, substantially, the matter in issue. That is true, as a general rule. But a verdict, to be supported as a substantial finding, must find the matter in issue, as certainly as if the finding conformed to the issue. There must be no uncertainty whether the thing found is identical with the thing described in the pleading. If the verdict finds the subject of recovery, by terms of description different from those which describe the subject of litigation, it must be uncertain whether the subject found is the same as that demanded. Extrinsic evidence is necessary to shew the identity. Less certainty should not be permitted in a judgment, than in other assurances of title. The law exacts that certainty in deeds, and other written instruments of contracts or transfer of title, that no parol evidence can be received to add to, vary, or explain them. The very fact that a verdict does not conform to the issue, excites suspicion that it does not find the subject of the issue. If it were not so, why should the verdict vary from the prescribed form ? A title to land is wortfr nothing if it be not located. Location is the most frequent subject of litigation. A verdict, which finds the lands described in the plaintiff’s title deeds, presents all the uncertainty and litigation which must attend the location of them. Such a verdict is very different from a verdict which finds the land by reference to the plat, in evidence on the trial. The plat identifies the subject of recovery more certainly than any terms of verbal description could do ; and a verdict referring to it may well be supported as a substantial finding, because more certain than if it referred to the description in the declaration.

In Connor vs. West, (5 Burr. 2672,) Lord Mansfield affirmed that, in ejectment, the certainty of the description need not be such, as that the sheriff might know of what to put the plaintiff in possession; because the plaintiff must point out the land to the sheriff, and take possession, at his peril; and, if necessary, an issue may be directed to ascertain what land is recovered by the judgment. The condition of land in England is widely different from its condition in this State. The obnoxious tendency of such a rule must be obviated, there, in some way, not intelligible without familiarity with the practice in the English Courts. The rule is inapplicable, in practice, to actions for the recovery of land in this State; and, in theory, inconsistent with any useful purpose of a judicial recovery. In England, every close is known by its exact dimension, and located by immemorial boundaries. In this State, many conflicting grants cover the same tract. Deeds of conveyance too commonly manifest the unskilfulness and ignorance of those who draw them. No accuracy is found in surveys and plats of land. The boundaries of a tract of land have to he traced along lines, indicated by marks on trees, and by stakes and stumps, and other evidence equally perishable and uncertain. Location is the most frequent issue in actions of trespass to try title: A verdict, finding for the plaintiff the land contained in his deeds, leaves undecided the most disputable subject of the litigation.

A judgment, on 'such a verdict, is worthless for any practical purpose, and a useless form.

By what terms shall a judgment be characterized, which adjudges to the plaintiff fifteen tracts of land somewhere, and sends the plaintiff and sheriff to hunt .for them, and take possession at their peril? The plaintiff might have done this without going to law. Such a judgment only serves to originate fresh contention. If the plaintiff and person in possession are orderly men, they may join in an issue t.o try what has been adjudged. But the party in possession may reject such proposal, and resist any attempt to dispossess them. A posse is summoned on one side, and friends called in aid by the other; and the issue on the judgment of the Court, to determine what is adjudged, may be involved in the plea of .not guilty, on an indictment for riot or murder.

Withers, J.

Since the case of Jones vs. Moore Owens, I concur in dissenting in this case:

Motion dismissed.  