Report of Cases Determined by the Supreme Court of Appeals of West Virginia Volume 85

Report of Cases Determined by the Supreme Court of Appeals of West Virginia Volume 85

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1920 edition. Excerpt: ...responded to the narrow issue improperly chosen by the plaintiff. By these two instructions, the defendant offered the plaintiff battle upon ground of the latter's own choice, but the court thwarted his purpose by re fusal of the instructions. Both should have been given. In view of the weighty and decided preponderance of the evidence in favor of the defendant, the motion to set aside the verdict. should have been sustained. One of the two corners involved in the controversy was indubitably fixed and rendered certain by evidence, while the location of the other was doubtful and uncertain. The fixed corner and the course and distance called for and perfectly agreeing with it necessarily resolved the doubt as to the location of the other as determined by the deeds which take precedence over the call for mere distance in the second part of the division line and the oral testimony of the surveyor. Lewis v. Yates, 62 W. Va. 575; Caste v. Baker, 59 W. Va. 683; Gwynn v. Schwartz. 32 W. Va. 487. It is to be remembered the calls are for a point in the Rierce line, not in the Hukill survey thereof, which is mentioned only in connection with the quantity of land. The conflict in the calls for distance, as to the second and third parts of the line, is clearly resolved by the fixed Pierce line corner and the course and distance of the line back from that point. That fixed corner controls the call for distance in the description of the second part of the line, wherefore the case falls clearly within the well settled rule. For the errors noted, the judgment will be reversed, the verdict set aside and the case remanded for 1-new trial. Reversed and remanded. 1. PR0l--lIBITION--WTii Will not go Against Trial Judge Where Court in Which Judgment more

Product details

  • Paperback | 328 pages
  • 189 x 246 x 18mm | 585g
  • United States
  • English
  • black & white illustrations
  • 1236922808
  • 9781236922809