A rehearing was granted, and at the April Term, 1873, the following opinion was delivered:
By the Court:We have carefully reread and considered the briefs and petition for rehearing in this case, but upon the principal questions discussed we still adhere to the conclusions reached in our former opinion. It would subserve no useful purpose to enter again upon the discussion of the numerous points presented.
It is insisted that the judgment should be reversed, because the plaintiffs had regained possession of a portion of the block in controversy before they commenced their action. If it be true that they were in possession of a part of the land when the action was commenced—and the testimony of Conroy tended strongly to show that they were so in possession—then, clearly, they ought not to have had judgment for that part. We cannot, however, reverse the judgment for that reason. It was not ground for a nonsuit, and there is no specification that the judgment in this respect is contrary to the evidence, Hor do we find any instruction upon the point, which was properly drawn, and refused by the Court.
We think the judgment should be modified so as to exclude from its operation lot five of the block. The plaintiff’s possession was limited to the property described in their deeds from Williams and the Dents, and these deeds did not purport to convey this lot. It could not, therefore, have been forci bly or unlawfully detained from the plaintiffs, since they never had possession of it. An instruction upon this point was asked by the defendants and refused by the Court. It should have been given, but the error does not call for the reversal of the whole judgment.
It follows that the judgment must be reversed as to Chas. P. Duane, and so modified as to the other defendants as to exclude from its operation lot five of the block in controversy—the appellants to recover their costs in this Court.
So ordered.