Heim v. Whitworth (27 Ohio App. 21, 1927)

By the Court.

Plaintiff, Ethal S. Whitworth; and defendants William Heim and Elease Heim, own adjoining lots in Henry Fuerstein’s first subdivision in the village of Arlington Heights. Plaintiff brought an action in ejectment against the defendants, claiming that they were occupying a portion of his lot.

The entire body of the petition is as follows:

“Now comes the plaintiff, and says that he has a legal estate in, and is entitled to the possession of, the following described real property, situate in the county of Hamilton, in the village of Arlington Heights, Ohio, to wit: Lot No. three (3) in Henry Fuerstein’s first subdivision, in section 32, range 1, town 4, Miami purchase; that said defendants have erected a fence upon the southeasterly end of said property, which unlawfully keeps plaintiff out of the possession thereof.

“Wherefore plaintiff asks judgment for the possession of said property, and for all other proper relief. ’ ’

The defendants each filed answers of general denial, and prayed to be dismissed.

The cause went to trial upon these pleadings, and a verdict was returned for plaintiff, upon which the following judgment was.entered:

“This cause coming on to be heard on the motion and supplemental motion to set aside the verdict of the jury and for a new trial, and the court being fully advised in the premises overruled said motions, it is therefore ordered, adjudged, and decreed that the plaintiff is- the owner of said premises, and entitled to immediate possession thereof, at the defendants ’ costs, to all of which the defendants except.”

To reverse this judgment, error is now prosecuted.

The plaintiffs in error, defendants below, stress two assignments of error: (1) The verdict and judgment are void for uncertainty; (2) the verdict and judgment are against the weight of the evidence.

As to the first assignment of error: The only description of the property is that contained in the petition, and. the verdict of the jury is a finding that “at the commencement of this action, the plaintiff was the owner of, and was entitled to the immediate possession of, the property described in the petition. ” It is contended that the verdict and judgment are uncertain under the provisions of Section 11344, General Code, which reads as follows: '

“In an action for the recovery of real estate, the property shall be described with such certainty as will enable an officer holding an execution to identify it.”

The case of Keyser v. Cannon, 29 Ohio St., 359, is relied on. In that case the property in question was “a strip of land seven feet wide on the east and west ends, by fifteen rods long on the north and south sides, off from the southeast corner of lot No. 38,” said lot 38 being described in the petition. The jury found for the plaintiff, “the strip of land to be two feet in width, instead of seven feet in width, as claimed in the petition, extending fifteen rods in length.” The court found this verdict was void for uncertainty, since it did not show whether the two-foot strip was to be taken out of the north, south, or middle part of the seven-foot strip.

That, however, is not the situation in this case. The description herein is as to an entire lot, on the southeast portion of which it was claimed defendants had erected a fence.

The bill of exceptions contains a plat of the subdivision, duly recorded in the records of Hamilton county. The finding of the jury is that plaintiff is entitled to the possession of this entire lot.

Section 11903, General Code, provides:

“In an action for the recovery of real property, it shall be sufficient if the plaintiff states in his petition that he has a legal estate therein and is entitled to the possession thereof, describing it with such certainty as to identify the property, and that the defendant unlawfully keeps Mm out of the possession. It shall not be necessary to state how the plaintiff’s estate or ownership is derived.”

Section 11904 provides what answer may be filed, and is as follows:

“In such action it shall be sufficient if in Ms answer the defendant denies generally the title alleged in the petition, or that he withholds the possession. If he denies the title only, possession by him shall be taken as admitted. When he does not defend for the whole .premises, the answer shall describe the particular part for which defense is made. The defendant also may set forth in his answer other and further grounds of defense, counterclaim and set-off, as in any other form of action, whether such as have been denominated legal or equitable, or both. ’ ’

Defendants, plaintiffs in error here, should have, by answer, set out by metes and bounds what portion of this lot was claimed by them, since they were not claiming the entire lot. No question was raised as to the definiteness or certainty of the description until after verdict.

We find the verdict and judgment are not void for uncertainty.

' Plaintiffs in error further claim that the verdict and judgment are against the weight of the evidence.

The petition describes the land as lot No. 3, but does set forth that defendants had erected a fence on the southeasterly end of said property. All of the evidence showed that the contention was as to a fence on the southwesterly portion of the lot. Evidence was introduced by both parties as to what was the true dividing line, which is the west line of the Whitworth lot, and the east line of the Heim lot. The jury found that the lot described as lot No. 3 of said subdivision was the property of the plaintiff, and he was entitled to possession. The defendants could not have been misled by the allegation in the petition that the fence erected by them was on the southeasterly part of said lot, as the whole case was tried on the question of the location of the west line of lot 3, which was the east line of the defendants’ property.

The verdict and judgment oust the defendants not only from the southeastwardly, hut also from the southwestwardly, portion of the lot in question; in fact, from the entire lot. The prayer asks for the possession of the property; that is, for said lot 3.

We do not find that the verdict and judgment are manifestly against the weight of the evidence.

Judgment affirmed.

Hamilton, P. J., Cushing 'and Buchwalter, JJ., concur. , :¡, •.' < í