
    G. M. SHARPE v. PHILIP SOWERS.
    (Filed 20 April, 1910.)
    1. Nonsuit After Verdict — Verdict Sufficient — Judgment.
    In an action to establish the boundary line between the adjoining lands of the parties, wherein issues were specifically submitted in accordance with the contention of each as to the true line, a judgment of nonsuit should not be granted as to one of them at his request after verdict rendered, which finds only the issue which establishes the line as claimed by his adversary, as a valid judgment may be entered ton the finding of the jury on that issue.
    2. Same — Formal Defect.
    When issues have been submitted to the jury in accordance with the contentions of the parties in an action to establish the boundary line between their adjoining lands, and the jury has answered only one issue, deeming it to be sufficient, the party claiming the line to be that as called for in the other issue cannot take a nonsuit, for if the failure of the jury to answer this issue made a defective verdict, it was cured by the subsequent logical answer of the jury thereto, having been instructed by the judge to answer it “Yes” or “No.”
    3. Issues — Assent—Pleadings—Objection and Exception.
    A party assenting to the submission of an issue not raised by the answer, and upon which there was evidence, will not be heard to complain after verdict rendered therein.
    Appeal from Long] J., at January (Special) Term, 1910, of DAVIDSON.
    Tbe facts are stated in tbe opinion of tbe Court.
    
      Walser & Walser and E. E. Raper for plaintiff.
    
      Linn & Linn and McCrary & McCrary for defendant.
   Walker, J.

Tbis action was commenced before tbe clerk of tbe Superior Court by plaintiff, to establish tbe boundary line between bis and defendant’s land, tbey being owners of adjoining tracts, l^be clerk entered a judgment in favor of tbe plaintiff, tbat tbe dividing line is tbe one represented on tbe map as between tbe letters B and D, whereas tbe defendant contended tbat tbe true line is tbe one represented on tbe map as between the letters C and B. From tbe judgment of tbe clerk tbe defendant appealed to tbe Superior Court, where tbe case was tried before a jury upon tbe following issues:

1. Is tbe true line between tbe plaintiff and defendant from the black-oak stump at E, thence south 84% degrees, west 1.75 chains to D, thence north 18% degrees, west 40.23 chains to B, on map ?

2. If this is not tbe true line, is tbe true line on tbe map tbe one from C to B ?

Tbe jury came into court and returned a verdict in which tbey answered tbe second issue “Yes,” or in tbe affirmative, and in favor of tbe defendant, but.did not answer tbe first issue. The court thereupon directed tbe jury to retire and answer tbe first issue “Yes” or “No,” under the instruction which bad formerly been given to- tbe jury. While tbe jury were still in tbeir room, and before their return into tbe courtroom, tbe counsel for tbe plaintiff asked tbe court to be allowed to submit to a nonsuit, which request was resisted by tbe counsel for tbe defendant. Tbe court, at tbat time, did not grant tbe request of tbe counsel for tbe plaintiff, but stated tbat it would allow tbe jury to answer tbe first issue as directed. Tbe jury returned to tbe courtroom, having answered tbe first issue in tbe negative, whereupon tbe court asked tbe jury if tbey bad reached a conclusion, at tbe time tbey first came into court with tbeir verdict, as to wbat tbeir answer should be to tbe first issue, to which tbey responded tbat tbey thought tbe answer to tbe second issue was sufficient, but that tbey bad decided to answer the first issue “No,” if it was necessary to do so, and tbat tbey failed to do so because tbey thought tbe answer to tbe second issue was a sufficient .response to tbe issues submitted by tbe court- Tbe court refused to grant tbe motion of tbe plaintiff, to be allowed to take a nonsuit, whereupon be excepted and appealed.

Tbe answer to tbe second issue was sufficient to dispose of tbe ease in favor of tbe defendant. The plaintiff contended tbat tbe dividing line was tbe one represented on tbe map by tbe letters B-D, and in order to ascertain if this was tbe line, tbe court submitted tbe first issue. Tbe defendant alleged tbat tbe line was tbe one represented on tbe map by tbe letters C-B, and tbe jury having found tbat this was tbe true line, it necessarily followed that the line B-D was not the true line, and an affirmative answer to the second issue was, when logically considered, equivalent to a negative answer to the first issue. In other words, the answer to the second issue was a full response to the issues raised by the pleadings or contentions of the parties, and settled the controversy in favor of the defendant.

The two issues were submitted, we suppose, in order that the jury might determine, not only whether the allegation of the plaintiff, that the line is> the one represented by the letters B-D on the map, was true, but also to enable them to determine the location of the true dividing line, which could not be the one represented on the map by the letters B-D if it is the one represented by the letters C-B, as the two lines are not coincident. The failure of the jury, therefore, to answer the first issue was a mere formal defect, if it was a defect at all, and it is evident that the court accepted their verdict as to the second issue, because the instruction was, when they were sent back to their room, that they should answer, not the second issue, but the first, which implies that the response to the second issue was received by the court as sufficient, so far as that issue was concerned.

This case does not differ substantially from Strause v. Sawyer, 133 N. C., 64, in which the question now presented was considered by the Court, and it wajs held that where a verdict was only formally defective and it could be seen therefrom what the jury had decided, and the verdict was not indefinite, uncertain or insensible, but was one upon which the court could render a judgment, the party against whom the verdict was rendered could not submit to a nonsuit, although the jury had been directed to return to their room and correct the technical informality. See, also, Clough v. State, 1 Neb., 342. Our ease is much stronger in favor of the defendant than the ones we have cited, as here there was really no informality, but the verdict was, as first rendered, sufficient in form and substance to sustain a judgment thereon for the defendant. It would not be fair to the defendant, if a- full and sufficient verdict had been returned, to permit the plaintiff to take a nonsuit, nor do we think that such action on the part of the court would be in ‘ accordance with the well-settled rule of the law applicable to such cases. Having decided that the ruling of the court upon the motion of the plaintiff, that he be allowed to take a nonsuit, was correct upon the facts of this case, it is not necessary to consider or decide whether a nonsuit could be taken in a proceeding of this kind.

We do not think there is any merit in the other exceptions. There was evidence to sustain the verdict of the- jury, and the plaintiff, having assented to the submission of the second issue, when tendered, will not now be heard to say that there was no averment in the defendant’s answer which warranted the submission of that issue to the jury. Person v. Leary, 127 N. C., 114.

Upon an examination of the record and the case on appeal, we find no error therein.

No error.  