Benn v. Hatcher

Citations

• 81 Va. 25
• 1885 Va. LEXIS 6

Syllabus

<p>1. Construction op Deeds—Reservation—Uncertainty.—Uncertainty in reservation, as when in conveyance of land the language is— “ reserving to the parties of the first part, three-fourths of an acre as a burying-ground for the family and their descendants,” may be cured by the election of the grantor; which, however, must be made within a reasonable time, but may be by acts in pais.</p> <p>2. Idem—Estoppel—Dedication.—Where land has been reserved and “dedicated” to some public, charitable or pious use, an estoppel arises precluding the owner from revoking the dedication; especially is such dedication irrevocable where it was created by agreement.</p> <p>3. IDEM'—Burial-grounds —Later conveyances.—When such dedication is once made, no title passes to the dedicated ground by subsequent conveyances of the tract out- of which the reservation was made, • though those conveyances be without reservation.</p> <p>4. Practice at Common Law— Variance.—Declaration describes the land in controversy as lying north of a road, and the verdict as south of that road. In other particulars the description is the same. Such variance is immaterial, and the description in the declaration must be presumed to be mistaken.</p> <p>5. Idem—Instructions—Rule.—In every case where objection is made to an instruction of the lower court, the first inquiry, is whether the jury were misled; and this can be determined only by an inspection of the instruction as a whole, taken in connection with the pleadings and the evidence. And if, when so construed, it appears probable that the jury were not misled, the judgment will not be reversed, although the instruction in some of its parts may not be strictly correct. Tested by this rule, the instructions given by the court to the jury in the case at bar, is not erroneous.</p> <p>6. Idem—New trials—Rule.—It is a settled, rule that where some evidence has been given tending to establish the fact in issue, a new trial will not be granted merely because the cour