PIATT AND WIFE, AND OTHERS, vs. HUBBEL AND OTHERS.

Where, upon petition for partition, commissioners are appointed, and report made, possession taken in severalty in conformity with it, and improvements made, though no judgment of confirmation is entered on the report, and although some of the parties were infants, the division appearing to be a fair one, after a lapse of several years, equity will not aid or disturb it.

THIS was a suit in Chancery to set aside certain proceedings in partition. It came before the Court upon bill, answers, exhibits and depositions, and was adjourned here for decision from the county of Hamilton. The case is stated in the opinion of the Court.

STORER and Fox, for complainants.

N. WRIGHT, for defendants.

JUDGE LANE, delivered the opinion of the Court.

The plaintifs are the widow and the owners of four distributive shares of the estate of W. Perry, late of Cincinnati. The defendants are the owners of the remaining share of said estate. William Perry died seized of a block of lots in

Cincinnati, a partition of which is the main object of the present bill.

A partition is resisted by the defendants, because they say, a partition is already made. In 1814, all the heirs of William Perry united in presenting a petition for partition to the Common Pleas, of these premises. Mrs. Ferguson and the two Strattons were then under age, but their names were subscribed to the petition by their mother, Mrs. Piatt. The Court granted the prayer of that petition, and appointed three commissioners to set off the land, with directions to be governed by the provisions of the act defining the duties of executors and administrators, passed in February, 1810.

At the next term, August, 1814, an order was issued to these commissioners, directing them to make partition, in conformity with the statute, and make return. to the Court, at the same term. Those commissioners made return August 5, that they had made the following partition: (see map.") The map follows, containing the division. Next follows the certificate of an oath, dated the same day, before a magistrate, in which they swore, that the map exhibits the partition made by them in compliance with the annexed order. No other proceedings appear to have been had in Court; there is no acceptance of the report, no confirmation of the division, no other notice of its return.

Evidence has been taken in this suit, for the purpose of showing the fairness or unfairness of this division. The testimony of the commissioners proves, that they embraced, in the share set to Hubbel, thirteen feet wide of land, which they supposed, would be required to enlarge the street called Western Row; and that they contemplated an alley would be run east and west through the whole block, and they attempted to equalize the value of the respective shares,

upon the supposition that these alterations were made. The proof shows a diversity of opinion among the witnesses, as to the equality and justice of the partition; and although it is a subject upon which men are prone to differ, we think the evidence satisfactorily shows, that the partition was at that time just.

The plaintifs insist, that these proceedings are entirely void, the report never having been accepted, and no ultimate judgment in partition having been made. By the defendants it is insisted, that although the general law, pointing out the mode of proceeding in partition, requires the second judgment, that these proceedings are under a different statute, VIII. 161, s. 37, in which no such judgment is contemplated, but under which the partition becomes complete by the act of the commissioners; or that, at any rate, this is a proceeding by a tribunal having jurisdiction, whose acts are not void until reversed.

We do not think it necessary to decide what is the precise effect of these proceedings. It is evident, the partition was in fact made between the parties, in 1814, which at that time was equal; and that all the adult parties took possession of their respective shares, and ever since held them in severalty, built upon, and improved them, on the faith of its validity. This Court, in Chancery, would not disturb a parol partition, originally fair, in which there had been so long acquiescence, and such acts of confirmation.

No difficulty is found in disposing of all the rights, except that remaining in the children of Mrs. Stratton, who were minors, at the institution of this suit. We have been led to conclude, that even to these, the same principles are applicable. They were parties to the original partition, and we believe it was fair. Separate possession, the erection of houses, and sales of parts of the property, have been had, upon the faith of its validity. If it be invalid, it becomes so from the common mistake of those who managed it-that no confirmation by the Court was necessary. If these minors ever possessed the right to set aside these proceedings, the subsequent transactions render it inequitable for them to exert it. We feel, at least, that to produce this effect, they have not the right to invoke to their aid, the extraordinary powers of Chancery.

The opinion we express, is upon the supposition, that the interest of all parties requires the alley to be opened. The bill, however, makes no such request. The case will be sent to the Supreme Court of that county, to afford an opportunity for the amendment.

LESSEE OF MUHLENBURG'S HEIRS, vs. ELIAS FLORENCE.

Verdict against the weight of evidence, new trial granted.

New trials granted in ejectment where verdict is against defendant more liberally than where verdict is against the plaintif.

THIS was a motion for a new trial, by the defendant, in an action of, ejectment. The case is stated in the opinion of the Court.

G. SWAN, for defendant.

H. STANBERY, for complainant.

JUDGE HITCHCOCK, delivered the opinion of the Court.

Upon the trial of this cause, in the county of Pickaway, it became important to ascertain the upper back corner of Muhlenburg's survey. In fact, this was the only material question in controversy. On the part of the lessors of the plaintif, it was insisted, that this corner was lost, and they sought to establish it, by running a line from the lower back corner, which was proven, the course called for in the patent, until it should intersect the upper line of the survey extended westwardly. The defendant introduced witnesses to prove the corner at a point, between sixty and seventy poles east of the point of intersection. The natural objects called for, are four swamp oaks. The witness called, had never seen such a corner. Judge Florence stated, that while acting as the agent for the lessors of the plaintif, in the year 1816 or 17, and while attempting to ascertain the back line of Muhlenburg, he saw, at the point contended for by the defendant, a barren oak stump, marked as a corner, and another tree of the same description, marked in the same manner, had been cut down, and was lying nearly against a fence. This stump and tree were in a field, and in possession of a man by the name of Pritchard. Florence, although acting as the agent of the plaintif, did not examine, particularly, the marks on the stump and tree; his sole object being to fix the back line at a place where there could be no controversy on account of interfering claims.

In October, 1817, Sylvester Bourne was surveying in the neighborhood, and was shown a corner, said to be Muhlenburg's, about fourteen rods west of Baldwin's corner. This is the distance between the corners of Baldwin and Muhlenburg, as claimed by defendant. Kinnear, a surveyor, run the line, and noticed the stump, marked as a corner, at the same point; and the same fact was stated by White, another surveyor, who was on the ground in 1831. White further stated, that the mark corresponded with other marks of the survey, except that they were not cut through the bark, so as to ascertain the age by blockings.

It was stated, that swamp oak and barren oak are the same timber. There was no proof of any corner west of this, on the north line of the survey extended; but Shepherd, a witness on the part of the plaintif, stated, that several years since, he found a man, by the name of Muir, (since deceased,) in the woods making rails, who told him, that he had chopped down a corner tree, which, at some future time, would make difficulty; and the witness saw a rail with marks similar to those on corner trees. This was near a prairie, and several rods west of the corner as claimed by the plaintif, but not at the point of intersection. Nor did it appear, that at or near the point of intersection, there were any trees marked, although there was timber in the neighborhood, of the description called for. It is now mostly dead and destroyed. Upon this evidence, the jury returned a verdict for the plaintif; whereupon, the defendant moved for a new trial, assigning for cause, that the verdict was against evidence. The judges who tried the cause, although agreed that the verdict was against the weight of the evidence, yet dif

fered in opinion, as to the propriety of granting a new trial. Whereupon, the counsel for the defendant moved, that pursuant to the law in such case provided, the case should be reserved for decision here.

Motions for new trials are addressed to the discretion of the Court, and will be granted or refused, as the justice of the case seems to require. As a general rule, new trials will be granted where the verdict is against the evidence, or manifestly against the weight of the evidence. In the case of Curtis and others vs. Jackson, (13 Mass. 507,) the Court say, that if the verdict be clearly against the weight of evidence, justice undoubtedly requires the interposition of the Court. The only proof of the existence of a corner, established it at the point claimed by the defendant. In fact, the plaintif relied upon the absence of such proof, in order that he might be permitted to establish a corner, by running the course, called for in his patent, to the point of intersection. No principle, however, is better established in Virginia military surveys, than that this course and distance must be controlled by natural objects. It is true, that there would be a great variation in the course of Muhlenburg's back line, if the corner should be established at the point claimed by the defendant. Still, if the corner was here originally fixed, it cannot now be changed. It is manifest, that the back line was not run at the time of the original survey, and the course was only ascertained by calculation. There is no proof of the four swamp oaks, but there is proof of two swamp oaks marked as a corner; and it appears, that this corner is within a clearing. Further, it must be remembered, that this survey was made in 1795, and the corner trees were not examined until more than twenty years thereafter. Is it surprising, then, that some of the trees should be gone? Those found, however, are of the description called for, and no other corner is found in the same neighborhood, which could answer to the call of Muhlenburg. The testimony of Shepherd is entitled to but little consideration. He states what he had heard from Muir, and further, that Muir was a man in the habit of telling large stories. Upon the whole, the weight of evidence is manifestly against the finding of the jury, and such was the opinion of the judges who tried the cause. The rule stated, would then require of the Court to award a new trial, and the justice of the case seems to demand it.

It is said, however, that in actions of ejectment, new trials will not be granted, even where the verdict is not only against the weight of evidence, but where it is against evidence. I am aware that such a principle is laid down in the books. The reason assigned is, that the judgment is no bar. A new action may be brought, merely changing the name of the nominal plaintiff. I apprehend, however, that it will be found, upon examination, that this principle applies more particularly to cases where there is a verdict for the defendant. In such case, the situation of the parties is not changed. The plaintif can again renew his action, and recover upon the same evidence which would have entitled him to a verdict in the first instance. He loses nothing by the first judgment, but the costs of suit, and these he would probably have to pay, as a condition of the new trial. Where the verdict is against defendant, the reason of the rule ceases. For how is it with the defendant? If judgment passes against him, the posses

sion is changed, and although he commence a new action, still he comes before the jury under less favorable circumstances than before. In ejectment, the rule is invariable, that the plaintif must recover on the strength of his own title, and not upon the weakness of the title of his adversary. If there is any doubt in the case, that doubt must be resolved in favor of the defendant. The defendant being in possession, shall not be ousted by a doubtful claim. This being a principle recognized in the action, and it is founded in principles of abstract justice; why shall it be said, that defendant cannot, after verdict against him, move for a new trial, because the action is ejectment, when the evidence upon which that verdict is founded, goes to prove, not merely that the claim of the plaintif is doubtful, but that the defendant has, in fact, not only the possession, but also, the right of possession? Under such circumstances, to deny a new trial, would seem to be manifestly unjust.

So also that Courts are more liberal in granting new trials, in ejectment, where the verdict is against a defendant, than when it is in his favor. I refer to Runnington on Ejectment, p. 398, and 1 W. Blackstone, 348.

Upon the whole, a majority of the Court are of opinion, that, in the present case, a new trial be ordered at the cost of the defendant.

IN THE CASE OF THE BANK OF MOUNT PLEASANT.

Mandamus mode of proceeding.

In this case, application was made, at the Supreme Court in Jefferson county, in 1831, for a rule to be directed to the Bank of Mount Pleasant, situate in that county, to show cause, why a writ of quo warranto should not issue, to examine and determine if its charter should not be forfeited, for certain alledged misfeaThe application was made by an attorney of the Court, in the name of a private individual, and was adjourned here for decision. The application was refused: but it was ruled as follows:

sances.

First. An application for a writ of quo warranto, against a corporation, must be commenced by a rule against the corporation, to show cause why the writ should not be awarded.

Second. The rule must be applied for, by the prosecuting attorney of the proper county, for and in behalf of the State.

Third. Application may be made for the rule, to the Supreme Court, sitting in any county of the State, previous notice having been given to the party concerned, of the intention to make the application. But the rule must be made returnable to the Supreme Court of the county where the party, against whom it is. taken, resides, or is located, whether the party be an individual or a corporation. Fourth. Upon the return of the rule, the court, upon hearing, will sustain or refuse the application, as circumstances and proofs may show to be right.

Fifth. In case the writ be awarded, the proceeding must be according to the