Smalls v. Roche

• Citation: 75 S.E. 1016,93 S.C. 45
• Parties: SMALLS . v. LA ROCHE.
• Decision Date: 17 October 1912
• Court: United States State Supreme Court of South Carolina

75 S.E. 1016
(93 S.C. 45)

SMALLS .
v.
LA ROCHE.

Supreme Court of South Carolina.

Oct. 17, 1912.

1. Ejectment (§ 111^*)—Complaint—Issues and Proof.

Plaintiff in ejectment under his general allegation of title and right of possession to the land described and represented on the plat attached to the complaint was entitled to prove title to the land from any source, whether by conveyance or adverse possession, and hence a reference to the land in the complaint as "Lot No. 2, " which was the number of the

[75 S.E. 1017]

tract shown on an original survey plat which did not conform to the plat attached to the complaint, did not render a verdict finding for plaintiff the "land in dispute" invalid for uncertainty because its limits as claimed did not correspond to the original plat.

[Ed. Note.—For other cases, see Ejectment, Cent. Dig. §§ 327-345; Dec. Dig. § 111.^2-*]

2. Appeal and Error (§ 215*)—Objections in Lower Court—Instructions —Misuse of Words.

Manifest inadvertence in the use of the word "defendant, " where "plaintiff" was intended in an instruction, was not ground for reversal, where the court's attention was not called to the error at the time.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. § 215.*]

Appeal from Common Pleas Circuit Court of Charleston County; Ernest Gary, Judge.

"To be officially reported."

Action by Guy Smalls against John J. La Roche. Judgment for plaintiff, and defendant appeals. Affirmed.

Wm. Henry Parker, of Charleston, for appellant.

Logan & Grace, of Charleston, for respondent.

WOODS, J. The appeal of the defendant in this action for the recovery of possession of a small triangular strip of land involves the sufficiency of the form of the verdict and the correctness of some propositions of law laid down in the charge.

The plaintiff and defendant bought adjoining tracts of land from F. Schaffer, and the dispute arose over the boundary line. The jury found a verdict in this form: "Find for the plaintiff the land in dispute and two hundred dollars damages." A motion for a new trial was refused on condition that the plaintiff should remit $100 from the damages assessed by the jury. The condition was complied with, and the judgment entered accordingly. The defendant contends that the verdict should have been set aside for uncertainty, because in limits and area "the land in dispute" as described in the complaint does not correspond with "the land in dispute" as represented on the plats, and the plats do not...