April, 1881] MILLER V. PECK et al. 103 Hannah Miller, recover against the defendant, Andrew Peck, her costs about her petition in this behalf expended. JUDGE JOHNSON CONCURS WITH MOORE P., JUDGE HAYMOND CONCURS IN THE CONCLUSION OF THE OPINION, AND THE SAID JUDGES CONCUR IN THE SYLLABUS. GREEN DISSENTS. JUDGMENT REVERSED. JUDGE Wheeling. BECKWITH V. THOMPSON et al. Decided May 14, 1881. *(Absent, JOHNSON, J.) 1. A fact necessarily involved in an issue, on which there has been a judgment, is thereby conclusively settled in any suit thereafter between the same parties and their privies. 2. But facts in controversy on the trial of an issue but not necessarily involved in the issue, though ever so important in its determination, are not settled by a judgment on the issue, but are open to controversy in any other suit between the same parties or their privies. 3. A Caveat-case rested on the better rights of the caveator to the land surveyed by the caveatee; and the caveatee was entitled to a patent for so much of bis survey, as was not by the superior title of the caveator specified in his caveat or specification of title, no matter how defective the survey or claim of the caveatee might have appeared as against the title of any other party, or even as against any title of the caveator not thus specified; and therefore a verdict and judgment in a caveat-case in favor of the caveator for apportioning the land surveyed by the caveatee must necessarily definitely specify the location of that portion of the land of the caveator, which interferes with the survey of the caveatee, or for which the caveator has the better right. 4. This definite location of this portion of the caveator's land is a conclusive settlement of its exact location in a suit in ejectment brought by the caveator to recover of the privies of the caveatee the land, for which the caveatee had got a patent by virtue of this caveat-case. But the verdict and judgment in such a caveat-case is not conclusive of the location of a corner of a tract of land adjoining the caveator's land, though it was located on the map, made a part of the verdict, and was so located by the surveyor in order to locate the caveator's land. *Counsel in the case below. 18 103 40 657 18 103 41 699 18 103 f48 203 f48 206 18 103 55 328 18 103 e 59 118 5. But the verdict and judgment in such a caveat-case is not conclusive or any evidence, that the patent issued on the caveatee's survey is a better title than any title of the caveator excepting only the particular title of the caveator, which he had specified in his caveat or in his specification of title, except where there was a failure by the caveator to specify his title in the caveat-case. 6. When all the defendants in an action of ejectment plead jointly not guilty, none of them disclaiming title, and the plaintiff on the trial proves his title and right to the possession of the whole land claimed in his declaration but fails to prove, that certain of the defendants were in possession of or claimed title to any interest in any part of the land, a general verdict for the whole land claimed in the declaration against all the defendants is not for this failure of proof by the plaintiff erroneous. 7. In an action of ejectment against a single defendant, who pleads not guilty without disclaiming title to any part of the land named in the declaration, the defendant proves at the trial that he is in possession of and claims title to only a definite part of the land, a verdict and judgment for the plaintiff for all the land claimed in the declaration is not erroneous; or if erroneous, it is not an error, by which the defendant is injured, or of which he can complain in the appellate court. See Carrington v. Goddin, 13 Gratt. 588. 8. In an action of ejectment against several defendants none of them disclaim title to the whole or any part of the land, but all plead jointly not guilty; at the trial they severally prove a claim of title to several distinct parcels of land within the boundaries of the land named in the declaration, and to which it is proved the plaintiff has a good title. The jury may find a verdict for the plaintiff, specifying each several parcel of land so claimed or held by each defendant severally, and should do so in all cases, when the ends of justice demand that there should be such separate finding. But when all the defendants claim under the same title, though by separate deeds for distinct parcels of land, and nothing appears in the case to show, that the defendants can in any manner suffer from a failure of the jury to find separately against them, a verdict against all the defendants jointly for the whole land claimed in the declaration is not erroneous. 9. Since chapter 110 of the Acts of 1877 went into effect, the right of the plaintiff in an action of ejectment to recover is not affected or impaired by a conveyance of the legal title to the land in controversy pending the suit to any person, not even when the conveyance is to the defendant. Writ of error and supersedeas to a judgment of the circuit court of the county of Wood, rendered on the 18th day of October, 1878, in an action of ejectment in said court then pending, in which Jonathan B. Beckwith was plaintiff, and William P. Thompson and others were defendants, allowed upon the petition of said defendants. Hon. A. I. Boreman, as special judge, rendered the judgment complained of. GREEN, JUDGE, furnishes the following statement of the case: This is an action of ejectment brought by Jonathan B. Beck with on September 12, 1871, in the circuit court of Wood county, against Johnson N. Camden, John V. Rathbone, Daniel R. Neal, Wm. T. Poole, William P. Thompson, Wm. N. Chancellor, N. A. Poole, James Hardin, Patrick Welch and John Coonen, to recover a tract of land containing two hundred and twenty-five acres two roods and seventeen poles, set out by metes and bounds in the declaration, situated in said county, at the mouth of the Little Kanawha river, a part of a tract formerly owned by John Stokely. The defendants pleaded jointly "not guilty." On October 8, 1858, the jury found a verdict for the plaintiff, "and that he has right in fee simple to the possession of the premises specified hereinafter, being a part of the premises specified in the declaration, and against the defendants in the declaration mentioned, who were in possession and claimed title thereto at the commencement of this action, which premises are specified and described as follows, to wit: Beginning at a point marked letter C on the map of surveyor Farron, made and filed in this cause, the beginning corner of the James Neal four hundred acre survey and the John Stokely twelve hundred acre survey; thence south twenty-four degrees east (114) one hundred and fourteen poles to the point at letter D on said map; thence south (39) thirty-nine degrees west (243) two hundred and forty-three poles to a point at letter E on said map; thence with the red pen line from said letter E northwest to the Ohio river; thence with the Ohio river and the meanders thereof to the place of beginning at letter C on said map, a copy of which said map marked 'No. 7,' is made part of the verdict." The defendants moved the court to set aside this verdict and grant them a new trial for the grounds following: "1st. The court misdirected the jury in giving them the instructions given by the court, and in refusing to give the instructions asked for by the defendants. "2d. The verdict is contrary to the evidence in this: That the jury rendered a general verdict against all the defendants, there being no evidence before the jury that the defendants, N. A. Poole, John Coonan, Patrick Welsh or James Hardin were in possession of the said land, or any part thereof, at the time of the institution of said suit or since that time; nor was there any evidence that either of the said named persons, at the time of the institution of said suit or since, claimed any title or interest in said land or any part thereof. "3d. And further, in this: there was no evidence to warrant a verdict against the defendants, W. P. Thompson or W. N. Chancellor; the evidence offered by the defendants and not controverted showing, that whilst the defendants, Thompson and Chancellor, had or claimed title to a part of said land prior to the institution of said suit, yet prior to the service of the declaration upon them, they had by their deed of April 2, 1871, offered in evidence in said cause, conveyed their interest in said property to W. T. Poole. And their being no evidence at the time of the service of said declaration on them, or since, that they were in possession of said land or any part thereof, or that they claimed title to said land or any part thereof, said verdict as to the said Thompson and Chancellor was without evidence to sustain it. "4th. The verdict is wrong in finding for the plaintiff, that he was entitled to the possession of the two acres of land known as the refinery,' he, the said plaintiff, by his deed to W. T. Poole, bearing date the 29th day of March, 1872, having conveyed to said Poole, one of the defendants, all his right, title and interest in and to said two acres of land, the said two acres being in the boundary recovered by the plaintiffs from the defendants. Said conveyances having been made by the plaintiff to the defendant, Poole, since the institution of his suit and before trial, the jury should have found the fact. And as to the said two acres the said plaintiff was not entitled to a recovery, but the defendants should go thereof without day. "5th. The verdict of the jury was contrary to law." The court refused to set aside the verdict, and on October 18, 1878, entered up a judgment for the plaintiff against all the defendants pursuant to this verdict; and the defendants excepted to this action of the court. All the evidence is set forth in the bill of exceptions taken thereto by the defendants. From this evidence it appears, that the grounds set out as the second aud third ground by the defendants for setting aside the verdict as above stated, set forth correctly what appears from said evidence. The evidence shows, that the James Neal survey of 400 acres, whose beginning corner is by the verdict made the beginning corner of the land recovered in this suit by the plaintiff, Beckwith, was patented to James Neal September 14, 1785. In this patent this tract of four hundred acres is described as "beginning at a sugar-tree standing on the bank of the Ohio and running south twenty-four degrees east one hundred and seventeen perches, south thirty-nine degrees west two hundred and forty-three perches," &c.; and the tract is described as "lying on the Little Kanawha at the mouth adjoining said Neal's other land." The evidence further shows, that the plaintiff, Beckwith, got his title to the land claimed by him in the declaration by intermediate conveyanees through Samuel Stokeley from John Stokeley, which conveyances gave him said John Stokeley's title to the 235 acres claimed by him, a part of the 1,200 acre survey of John Stokeley, and named in the deed. A patent for this 1,200 acres was granted to John Stokeley on May 9, 1804. This tract is that described in the patent as "a tract containing 1,200 acres, lying and being in the county of Wood, adjoining the Ohio river and lands surveyed for James Neal, Wm. McCleary and Hugh Phelps, and bounded as follows: Beginning at a sugar-tree, corner to James Neal's survey, a small distance from the mouth of the Little Kanawha river, and on the bank of the Ohio river, running thence with two of his lines south 24° E. 117 poles to a white oak, S. 39° W. 243 poles to a black oak, corner to Wm. McCleary," &c. By a comparison of these courses with the courses found by the jury as the boundaries of the plaintiff Beckwith's land and from the surveyor's report it appears, that the plaintiff, Beckwith, owned the eastern end of this twelve hundred acre survey or upper end of it, the Ohio river running there from east to west. The James Neal survey of four hundred acres lying on the Little Kanawha but bordered |