Bennet v. Morris

Supreme Court of Alabama

Bennet v. Morris

9 Port. 171

CourtSupreme Court of Alabama

DecidedJanuary 15, 1839

StatusPublished

Cited by7 cases

This text of 9 Port. 171 (Bennet v. Morris) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bennet v. Morris, 9 Port. 171 (Ala. 1839).

Pincite

Opinion

ORMOND, J.

The case of Thomas Sturdevant against the heirs of-Murrell, decided at the last term of this court, is decisive of the present-question. In that case, as. in this, the objection was to the uncertainty of the verdict and judgment. - In that case, also, as in this, the verdict did not ascertain, with any precision, the land withheld-from the plaintiff, and of which the sheriff, on the writ of habere facias possessionam, was to put him in possession.

The verdict, in this case, is for “one hundred and twenty feet on the south side of St. Michael street, commencing at the centre of the house occupied by James Wilson, in 1817j and running sixty feet east and west, [173]*173by one hundred and twenty feet south, and assess the damages, &c.”

This description would suit any lot of one hundred and twenty feet in St. Michael street, and therefore certainly too vague, unless the generality of the description can be controlled by its being said to be opposite the cen-tre of the house occupied by Jumes Wilson, in eighteen hundred and seventeen. If, instead of referring to the occupancy of a house by a person twenty years since, the reference had been to some monument, or other actually existing thing, it might have been sufficient, by affording some certain data on which the sheriff might act, in executing the judgment of the court. What house a person occupied twenty years since, might be a matter of great doubt, and would be so uncertain, as to leave the whole matter almost entirely in the discretion of the sheriff.

It was urged by the defendant’s counsel, that the plaintiff below must take possession at his. peril, and would be governed by the evidence given at the trial. But this court held, in the case above cited, that the rule insisted on, which seems to prevail in England, has not been adopted in this State, owing, in a great degree, perhaps, to the^-difference between the action of ejectment in that country, and the action of trespass to try titles, in this.

The verdict should describe, with reasonable certainty, the land intended to be covered thereby, or the judgment founded on it will be reversed on error.

Let the judgment be reversed, and the cause remanded.

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ORMOND, J.

The case of Thomas Sturdevant against the heirs of-Murrell, decided at the last term of this court, is decisive of the present-question. In that case, as. in this, the objection was to the uncertainty of the verdict and judgment. - In that case, also, as in this, the verdict did not ascertain, with any precision, the land withheld-from the plaintiff, and of which the sheriff, on the writ of habere facias possessionam, was to put him in possession.

The verdict, in this case, is for “one hundred and twenty feet on the south side of St. Michael street, commencing at the centre of the house occupied by James Wilson, in 1817j and running sixty feet east and west, [173]*173by one hundred and twenty feet south, and assess the damages, &c.”

This description would suit any lot of one hundred and twenty feet in St. Michael street, and therefore certainly too vague, unless the generality of the description can be controlled by its being said to be opposite the cen-tre of the house occupied by Jumes Wilson, in eighteen hundred and seventeen. If, instead of referring to the occupancy of a house by a person twenty years since, the reference had been to some monument, or other actually existing thing, it might have been sufficient, by affording some certain data on which the sheriff might act, in executing the judgment of the court. What house a person occupied twenty years since, might be a matter of great doubt, and would be so uncertain, as to leave the whole matter almost entirely in the discretion of the sheriff.

It was urged by the defendant’s counsel, that the plaintiff below must take possession at his. peril, and would be governed by the evidence given at the trial. But this court held, in the case above cited, that the rule insisted on, which seems to prevail in England, has not been adopted in this State, owing, in a great degree, perhaps, to the^-difference between the action of ejectment in that country, and the action of trespass to try titles, in this.

The verdict should describe, with reasonable certainty, the land intended to be covered thereby, or the judgment founded on it will be reversed on error.

Let the judgment be reversed, and the cause remanded.

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Bluebook (online)

9 Port. 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennet-v-morris-ala-1839.

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