#### J. J. NALL et al. v. M. BROOKS McMATH et als.

(Filed 5 March, 1919.)

1. Appeal and Error — Verdict—Evidence—Objections and Exceptions.

Objection that a verdict is not supported by any legal evidence comes too late after its rendition; and this doctrine applies where the jury has asked further instructions while considering the ease, as to whether they were confined to the contentions of the parties as to the true divisional line between owners) of adjoining lands, in the presence of attorneys of each of them, who agree in an instruction that the jury shall find the line, but upon the evidence in the case.

2. Verdict — Evidence—Lands—Dividing Lines.

Where the jury has disregarded the contentions of the parties in locating the true divisional line in dispute between the lands of adjoining owners, and has established the line between those claimed, evidence that the acreage exceeded that called for in the deeds of each of the parties, that allowances should be made for variation in the compass, and that the distances were greater than given in these deeds is held, sufficient.

3. Verdict — Compromise—Evidence—Appeal and Error.

A compromise verdict arbitrarily rendered and not supported by any legal evidence will be set aside.

*1844. Judgments — Non Obstante — Motions—Appeal and Error.

A motion for judgment non obstante veredicto will not be sustained unless it appears from tbe pleadings and verdict, and not from tbe evidence, that tbe party is thereto entitled.

Appeal by defendants from Daniels, J., at tbe August Term, 1918, of CHATHAM.

Tbis is a special proceeding instituted before tbe clerk for tbe establishment of tbe dividing line between tbe respective parties. Tbe case was beard before tbe clerk after tbe survey bad been made and tbe surveyor bad filed bis report, and be decided in favor of tbe contentions of tbe defendant. Tbe plaintiffs appealed and tbe cause was transferred to tbe trial docket, and wben tbe same was called for -trial before bis Honor be referred tbe same to R. H. Dixon, Esq., as referee to bear tbe evidence, find tbe facts and report bis findings of fact and conclusions of law. Tbe said reference was a compulsory one.

Tbe referee made bis report to tbe court, again finding in favor of tbe defendants. To tbis report tbe plaintiffs filed exceptions, proposed an issue and demanded a trial by jury tbereon, and tbe cause came on for bearing on tbe said exception of tbe plaintiffs. After tbe jury bad retired for some hours one of tbe jurors approached tbe judge and after a short conference tbe judge called counsel for both parties to tbe bench and told them that the juror wished to know if they bad a right to disregard tbe contentions of both parties and to establish tbe line at a point different from that contended by either, tbe judge asking tbe counsel what they thought should be bis instruction, if anything, whereupon tbe counsel for tbe defendant suggested that under tbe word of the issue he thought all he could tell tbe jury was that they could begin the line where they chose, and found from evidence to be true' point; that it was their duty to find from the evidence what was tbe true dividing line and to so declare. Tbis proposition was not objected to as to tbe judge’s duty in response to tbe juror’s inquiry, but neither side consented as to where they should find the line, nor did either side consent that they should find the line, except as to where they should find it under the evidence. There was no consent on either side or suggestion as to what the verdict should be or where they should find the line, and there was no request for such consent from inquiring juror as to his province. "When the jury returned they stated to tbe court what .they bad decided, and tbe court in helping the jury with its findings asked them if they meant to divide the disputed land, to which they replied in the affirmative. The attorneys for both sides aided the court in suggestions as to what they understood the jury wanted to do while the jury was standing in tbe bar waiting for tbe court to aid them in getting their answer as they wished it, but there was no consent or intimation of consent from *185 ■either side that such should be their verdict or that they were satisfied 'with it.

The evidence of the plaintiffs tended to prove that the true line was from 6 to 7 on the plat, and that of the defendants that it was from 9 to 10. The jury returned a verdict establishing the line equally distant from 6 to I and 9 to 10.

The defendants moved to set aside the verdict upon the ground that there was no evidence to support it, which motion was refused, and defendants excepted. Judgment was entered in accordance with the ver-■diet and the defendants appealed.

W. P. Horton and Fred W. Bynum for plaintiffs.

Siler & Barber and B. II. Hayes for defendants.

Allen, J.

The principle is well established that an objection that there is no evidence to support a verdict will not be considered when made for the first time after the verdict has been returned (S. v. Leak, 156 N. C., 643), and there is no reason for refusing to enforce the rule when it appears, as it does in this record that both parties had full notice that the jury was not satisfied to find the true line to be as contended for by either party, and when not only was there no opposition to a departure from these contentions and no request' to instruct the jury they must find according to the contention of one or the other, but on the ■contrary counsel on both sides aided the court and jury in framing the answer to the issue, without suggesting that there was no. evidence to .support- this finding until after the return of the verdict.

We have, however, examined the evidence and cannot say that the .jury has not established the true line between the parties. It is true that most of the evidence was directed to the lines according to the respective ■contentions of the plaintiffs and the defendants, but the surveyor testified that the acreage of the plaintiffs and defendants exceeded that called for in their deeds and a number of deeds were introduced by both parties which required allowances for variations in the compass, and as to the •deeds of both plaintiffs and defendants the distances, in order to reach their respective claims, required more than was called for in the deeds.

We would not be understood as holding that the jury has the right to ■compromise the claims of litigants, and if it clearly appeared that they had done so and had returned the verdict with nothing to sustain it, and that there was no notice of the purpose to do so, the parties would be ■entitled to relief.

The motion for judgment non obstante veredicto has nothing to sustain it, as this motion can only be granted when it appears from the *186pleadings and the verdict, and not from the evidence, that the party is entitled to judgment. Baxter v. Irwin, 158 N. C., 277.

The judgment must be affirmed.

No error.