The plea of non tenure, being a dilatory plea, was verified (sess. 36, ch. 56, s. 23, 1 R. L. 524,) by affidavit pursuant to law, (sess, 524,) thus:
“ ^as ^m^'i °f the village of Rochester, in the county of Monroe, merchant, maketh oath and saith, that the plea of non tenure, hereunto annexed, is true in substance and fact.”
It appeared by an affidavit on the part of the tenant, that the declaration was intended to embrace 100 acres, a part 0f yie present village of Rochester, now possessed by a great number of persons, and worth a large sum of money, which ^ani the reputed husband of the demandant, aliened in his life time for the consideration of 500/. New-York currency, then being the fair value, (A. D. 1792.) The tenant, at the commencement of the suit, owned 4 village lots, amounting . , . to one acre only, being apart oí the said 100 acres; the said * acre being now. worth about $12,000, hut which he bought at less than $400 : that the plea of ne unques accouple would probably involve some nice questions of law, but his c}qef dependence was on the plea of non tenure, and alien . . ation, 'Wimtout temps pns, fyc.
j®*ce, ™0^^-standing alone, they would be pieadable on-before. ,/Ye ungues accouple, and ^¡thiouMemps pris, may be |etherf ^
C. M. Lee, now moved to set aside the pleas of tout temps pris and non tenure. He said, 1st, that great strictness is necessary as to the time of pleading tout temps pris. It cannot he pleaded except by the heir or alienee of the husband ; for, as every other person comes in after the husband’s death, he cannot, for that reason, say tout temps pris. (2 H.4. 7. Br. tout temps pris, pl. 34. Vin. Abr. dower, (M. a.) pl. 13. 20. Vin. tout temps pris, (B) pl. 2.) Again, it is agreed m all the books, that this plea cannot he interposed after any „ * . J kind of imparlance. The reason is plain. An imparlance is for time to answer, because the party is not ready. Yet, by this plea,he comes in and says that he is ready, in direct contradiction to what he has before said in terms ; thus Introducing a palpable contradiction upon the record.— And this is pleaded, too, not after a special or a general special imparlance, but after a general imparlance, which narrows the defendant down to the least latitude, in the selection of his pleas. If it could be pleaded after any oiher imparlance, it is certainly inadmissible after a general, one. He referred, also, to 2 Jac. L. D. 322, tit. Dower. 5 id, 174, title, Pleading, I.1, 3, 4. Co.Litt. 32, b. An imparlance estops the tenant, in an action of dower, to say tout temps pris. (5 E. 4. 141. Br. tout temps pris, pi. 27. 20 Vin. tout temps pris, (B) pl. 5.) Indeed, this has never been controverted in any case. Mor can the oldness of these authorities he objected against us ; for the reason of the law still exists, in its full force. The plea is out of time, is frivolous, and altogether inadmissible upon the face of the record; and a motion is the proper course to set it aside.(a) We ought not to have resorted to a demurrer, w'hich does not draw in question the time of pleading, but the goodness of the plea itself.
2. The plea of non tenure is to a part only of the land.. Considered in itself, it is, for that reason, frivolous. Tout' [184] temps pris being disposed of, non tenure stands alone; amt ^ere is no proposition better settled, than that a plea which professes to be, and is, in fact, an answer to but part, is a nullity. Besides, this plea is altogether inconsistent with that of ne unques decouple.
J. Platt, contra. The consequences will be most seriousto this tenant, if he is to be cut short of these two pleas. At common law, the widow was dowablc of one third of the husband’s lands. By the action of dower she obtained seisin of her interest, and the process stopped there : she recovered no damages. But by the statute of Merton, (20 H. 3. ch. 1, adopted in 1 R. L. 57, s. 2,) she is now to recover damages from the death of the husband, if he dies seized. And on a judgment by default, or an issue of we unques decouple, the demandant may then (as appears by the entries) suggest the husband’s seisin at his death, and the jury are to assess full damages, including the mesne profits from that time; and this for the whole of the land demanded, provided we loose our plea of non tenure. (Saund, 44-5, n. 4. id. 330. 1 Lill. Ent. 269. Booth on R. A. 168-9. Rast. Ent. 238, a. b. Bull. N. P. 116-17. Doct. & Stud, díalogue 2, ch. 13. Co. Litt. 32 b. 2 Sell. 210.)(a) Then comes the act of April 7, 1806, (1 R. L. 60.) The Istsection of this statute provides, that dower shall be assigned according to the value of the land, at the time of the alienation. This introduces a new rule, varying the rights of the parties. At common law, the inherent rise of the property in value was disregarded; though otherwise of artificial improvements ; and, in England, this rise still enures to -the benefit of the widow.(b) (Dorchester v. Coventry, 11 John. 510.) Here is a sale for 500Z. of lands on which a large village has arisen. We have purchased a single acre : ye%> deprived of these pleas, we are made to respond in damages for one third of the whole.
Our first answer to this motion is, that the demandant should have demurred. The Court ought not to decide a question so immensely important as this, in a summary way, upon affidavit and motion. Beside, the want of that, de[185] liberation due to the question here, we are in this form deprived of all chance to appeal. Humphry v. Phinney (2 John, 484.) presents a similar case. The third plea there, was an alienation, &c. and tout temps pris. There was also a plea of ne unques accouple. In that case- the question came up, as it should do here, upon demurrer. The third plea was liolden good ; Nay, that it was absolutely necessary to resort to such a plea, in order to give effect to the statute of 1806. This plea is unknown to the British books. There is no precedent or principle there, which warrants it. True, it is said by Kent, Ch. J. in that case, that this statute was in affirmance of the common law. But there is no precedent for such an assertion ; and Park on Dower, 257, expressly contradicts it.
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The plea of non tenure, being a dilatory plea, was verified (sess. 36, ch. 56, s. 23, 1 R. L. 524,) by affidavit pursuant to law, (sess, 524,) thus:
“ ^as ^m^'i °f the village of Rochester, in the county of Monroe, merchant, maketh oath and saith, that the plea of non tenure, hereunto annexed, is true in substance and fact.”
It appeared by an affidavit on the part of the tenant, that the declaration was intended to embrace 100 acres, a part 0f yie present village of Rochester, now possessed by a great number of persons, and worth a large sum of money, which ^ani the reputed husband of the demandant, aliened in his life time for the consideration of 500/. New-York currency, then being the fair value, (A. D. 1792.) The tenant, at the commencement of the suit, owned 4 village lots, amounting . , . to one acre only, being apart oí the said 100 acres; the said * acre being now. worth about $12,000, hut which he bought at less than $400 : that the plea of ne unques accouple would probably involve some nice questions of law, but his c}qef dependence was on the plea of non tenure, and alien . . ation, 'Wimtout temps pns, fyc.
j®*ce, ™0^^-standing alone, they would be pieadable on-before. ,/Ye ungues accouple, and ^¡thiouMemps pris, may be |etherf ^
C. M. Lee, now moved to set aside the pleas of tout temps pris and non tenure. He said, 1st, that great strictness is necessary as to the time of pleading tout temps pris. It cannot he pleaded except by the heir or alienee of the husband ; for, as every other person comes in after the husband’s death, he cannot, for that reason, say tout temps pris. (2 H.4. 7. Br. tout temps pris, pl. 34. Vin. Abr. dower, (M. a.) pl. 13. 20. Vin. tout temps pris, (B) pl. 2.) Again, it is agreed m all the books, that this plea cannot he interposed after any „ * . J kind of imparlance. The reason is plain. An imparlance is for time to answer, because the party is not ready. Yet, by this plea,he comes in and says that he is ready, in direct contradiction to what he has before said in terms ; thus Introducing a palpable contradiction upon the record.— And this is pleaded, too, not after a special or a general special imparlance, but after a general imparlance, which narrows the defendant down to the least latitude, in the selection of his pleas. If it could be pleaded after any oiher imparlance, it is certainly inadmissible after a general, one. He referred, also, to 2 Jac. L. D. 322, tit. Dower. 5 id, 174, title, Pleading, I.1, 3, 4. Co.Litt. 32, b. An imparlance estops the tenant, in an action of dower, to say tout temps pris. (5 E. 4. 141. Br. tout temps pris, pi. 27. 20 Vin. tout temps pris, (B) pl. 5.) Indeed, this has never been controverted in any case. Mor can the oldness of these authorities he objected against us ; for the reason of the law still exists, in its full force. The plea is out of time, is frivolous, and altogether inadmissible upon the face of the record; and a motion is the proper course to set it aside.(a) We ought not to have resorted to a demurrer, w'hich does not draw in question the time of pleading, but the goodness of the plea itself.
2. The plea of non tenure is to a part only of the land.. Considered in itself, it is, for that reason, frivolous. Tout' [184] temps pris being disposed of, non tenure stands alone; amt ^ere is no proposition better settled, than that a plea which professes to be, and is, in fact, an answer to but part, is a nullity. Besides, this plea is altogether inconsistent with that of ne unques decouple.
J. Platt, contra. The consequences will be most seriousto this tenant, if he is to be cut short of these two pleas. At common law, the widow was dowablc of one third of the husband’s lands. By the action of dower she obtained seisin of her interest, and the process stopped there : she recovered no damages. But by the statute of Merton, (20 H. 3. ch. 1, adopted in 1 R. L. 57, s. 2,) she is now to recover damages from the death of the husband, if he dies seized. And on a judgment by default, or an issue of we unques decouple, the demandant may then (as appears by the entries) suggest the husband’s seisin at his death, and the jury are to assess full damages, including the mesne profits from that time; and this for the whole of the land demanded, provided we loose our plea of non tenure. (Saund, 44-5, n. 4. id. 330. 1 Lill. Ent. 269. Booth on R. A. 168-9. Rast. Ent. 238, a. b. Bull. N. P. 116-17. Doct. & Stud, díalogue 2, ch. 13. Co. Litt. 32 b. 2 Sell. 210.)(a) Then comes the act of April 7, 1806, (1 R. L. 60.) The Istsection of this statute provides, that dower shall be assigned according to the value of the land, at the time of the alienation. This introduces a new rule, varying the rights of the parties. At common law, the inherent rise of the property in value was disregarded; though otherwise of artificial improvements ; and, in England, this rise still enures to -the benefit of the widow.(b) (Dorchester v. Coventry, 11 John. 510.) Here is a sale for 500Z. of lands on which a large village has arisen. We have purchased a single acre : ye%> deprived of these pleas, we are made to respond in damages for one third of the whole.
Our first answer to this motion is, that the demandant should have demurred. The Court ought not to decide a question so immensely important as this, in a summary way, upon affidavit and motion. Beside, the want of that, de[185] liberation due to the question here, we are in this form deprived of all chance to appeal. Humphry v. Phinney (2 John, 484.) presents a similar case. The third plea there, was an alienation, &c. and tout temps pris. There was also a plea of ne unques accouple. In that case- the question came up, as it should do here, upon demurrer. The third plea was liolden good ; Nay, that it was absolutely necessary to resort to such a plea, in order to give effect to the statute of 1806. This plea is unknown to the British books. There is no precedent or principle there, which warrants it. True, it is said by Kent, Ch. J. in that case, that this statute was in affirmance of the common law. But there is no precedent for such an assertion ; and Park on Dower, 257, expressly contradicts it.
This is not a plea in abatement. In Humphry v. Phinney, it is treated throughout as a plea in bar. Dolf v. Basset, (15 John. 22,) follows up the same principle. “It has been settled,” say the Court, (p. 23) “ that dower is to be taken according to the value of the lands at the time of the alienation. (2 John. Rep. 484. 11 id. 510.) But in what manner, and at what time, that value is to be ascertained, has not been decided. It is barely hinted at in the case of Humphry v. Phinney, (2 id. 484,) and the books do not furnish us with much light on the subject. As it is an inquiry growing, in some measure, out of the statute, the Court has an unquestionable right to adopt such practice as shall seem most expedient.”
Here, then, is a new plea, arising from a new principle, steering clear of the ancient books, which have heen cited ; and calling upon the Court to adjust it to the rights of the parties, and adapt their practice accordingly. It is suigeneris, and the old authorities do not apply. The rule relied upon is in Booth, 36, “ that after a general imparlance, no plea to the writ is to be received.” He cites Keilw. 93, b. and Palm. 308. On the same page he says that imparlances are merely days of grace : and in Haviland v. Bond, (4 John. 309) it is decided that it is a matter of course to grant a special imparlance to the next ierm. Nothing can be said against it. That the imparlance [186] was not special, is a mere slip. Will the Court enforce this error 1 They will rather amend the .imparlance by turning it into a special one.
But it is said, that tout temps pris cannot be pleaded after any imparlance. This might be true, if the plea stood alone: It would then be a mere confession, and give judgment to the plaintiff. This is not our case. Important questions of law may arise, and be litigated, under this plea. It is unlike the English plea of tout temps pris, alone. It is a compound special plea. As to a small part, it is a plea of confession. As to the residue, it contests very important rights. The Courts are more liberal now than formerly, in admitting pleas of this nature. Tender, in personal actions, may now be pleaded after imparlance. (1 Saund. 33, n. 2. Noone v. Smith, 1 H. Bl. 369. Kilmick v. Maidman, 1 Burr. 59.) If this will be allowed in a plain personal action, will not the Court extend the same indulgence to real actions, which are difficult and abstruse'! Rules of practice differ from statutes, or the common law. They are flexible and should be applied to circumstances, and to promote fairness 'and justice. A case of hardship or severity will be relieved against. The rule may be tempered to suit the case.
These pleas are properly joined. None of the authorities cited against us, are, since the statute of Ann, allowing double pleading ; and which statute we have adopted. (1 R. L. 519.) This matter was pleaded double, in Humphry v. Phinney, and passed without objection.
Oakley, in reply. The tenant sets up surprize, and complains of severity in the rules which we seek to enforce against him, while his plea is a nullity on the face of it. He pleads tout temps pris, without shewing any colour of right in himself to plead in this manner. He shews the title in Barton, and leaves it there ; thus admitting that he has n® right to assign dower.
The question, whether the plea is in season, rests merely ■upon authority. There is no difference, in this respect, between this plea under our statute and at common law. The only difference is in the effect. Under the former, it confesses the right of action,, for the value of the- land, at the. [187] lime of the alienation. At the common law the action was confessed without regard to the value. The imparlance falsifies the plea in both cases, by shewing that the tenant has not always been ready. It is, in both cases, with a view to •consider of a defence to the action; not whether the tenant has always been ready to assign, and surrender the subject of the suit. In Burdon v. Burdon, (1 Salk. 252) it was decided that detinue- of charters cannot be pleaded after imparlance. This is a plea in bar, and goes to the merits ; yet no indulgence is shewn in that case, and none is due to the tenant here. This motion pre-supposes the plea to be valid, Independent of the imparlance, and seeks to set it aside as too late. We cannot demur upon this ground. It is the proper subject of a motion to set the plea aside. It is irregular.
JVe unques accouple is inconsistent with the first plea, and ought, therefore, to be stricken out. The tenant cannot say tout temps pris, and yet ne unques accouple. The record would be absurd upon the face of it. Judgment for the demandant follows necessarily, from the first. But the tenant is allowed to "go to trial, and obtain a judgment on the second, against the demandant. The statute of double pleading never meant to sanction such gross absurdity. It is like pleading the general issue, and giving a cognovit upon the same matter, on the same record. The case of Humphry v. Phinney arose upon demurrer to the plea. It was not a question as to the time of pleading, or the consistency of the several pleas.
Curia. There is an apparent inconsistency between these pleas; and, indeed, this is the case in almost every instance, under the statute, where the tenant pleads several matters of defence upon the same record. This is generally allowed, as a matter of course ; and, to show the propriety of the practice, in this case, special reasons are assigned, by affidavit, why the plea of ne unques accouple should be retained. The plea of non tenure may be interposed after an imparlance; (Booth, 36) but it is objected that the plea of tout ■¿emps pris being irregular and void? this plea of non tenure is [188] left to stand for a part, and is, therefore, a nullity. This begs fluesti°n upon the plea of tout temps pris ; and it is necessary to decide upon its admissibility, before the objection to ^le P^ea °f non tenure can be entertained : because, taken collectively, they are an answer to the whole cause of action. There is here a peculiar fitness in the plea of non tenure. The demandant goes for her dower in 100 acres. The tenant says, that dower is demandable of him in the one hundredth part only ; and he must, for his own safety, disclaim as to all but the one acre. The great question, then, is upon the plea oí tout temps pris. To this the objection is, that being after a general imparlance, it is thus falsified; the imparlance being inconsistent with the nature of the plea. Such, is, doubtless, the English doctrine. But there the widow is entitled to one-third of the land, at its enhanced value, with every thing attached to it, except artificial improvements. Our statute adopts a different rule. Where the husband has aliened in his life time, it gives only the value of one-third of the land at the time of the alienation. Hence arises the necessity of pleading the alienation, and averring tout temps pris. Humphry v. Phinney, cited by the counsel for the tenant, takes this view of the subject; and, in our opinion, substantially disposes of this question. The Court there say, “ the plea is proper, in order that the demandant may be obliged to take her judgment specially, according to the tender that is to say, the plea of tender, by which the tenant says, “ I am ready to give you the land', at its value when aliened.” This is the language of the plea. Again : the Court sayj if this mode of pleading is not adopted, “ the general judgment, that the demandant recover seisin of one-third part of the premises, according to the count, might, perhaps, preclude the tenant from the benefit of the valuation for which he contends.” Thus, instead of the old technical plea, we have a qualified tout temps pris, framed by our own pleaders, for the purpose of giving effect to this new statute; a plea fiequently involving important rights, and introducing a defence which sinks the demandant’s claim from a large sum to a mere trifle. There would seem to be X\o reason for applying the ancient strictness as to time, ap[189] phcable to a plea of mere confession, to one which thus r r . , , . „ , , . l7 questions a material part oí the demand. 1 tit reason of the rule ceases. Time," by imparlance, is, in fact, necessary, as for any other plea. Besides, to make this defence complete, this plea must accompany that of non tenure, which may be pleaded after imparlance. Each standing alone, would be an answer to part only. And, indeed, it is doubtful whether an answer to this objection is not to be deduced from the statute of double pleading. Some of these pleas being pleadable after imparlance, would seem to draw the others after them, though strictly pleadable only before. The pleas must all be put in at the same time; and, for that reason, perhaps, ought to be placed on the same footing, as to the time of being pleaded.
Motion denied. (c)