Flagg v. Thurston

28 Mass. 431

• Court: Massachusetts Supreme Judicial Court
• Decided: October 11, 1831
• Status: Published

Opinion

Wilde J.

delivered the opinion of the Court. The petitioner demurs specially to the respondent’s 4th and 5th pleas in bar ; but as we are of opinion that both pleas are defective in substance, it is unnecessary to consider the special causes of demurrer.

The 4th plea shows no title in the respondent, and it is very clear, that on the facts therein stated, he has no right to object to the partition prayed for.

In the fifth plea, however, it is averred, that after the sale and conveyance of the reversion of the two acres and thirty rods to Wilder, he sold and conveyed the same to "the respondent, and that the respondent thereupon became seised thereof, subject only to the widow’s dower. But this plea also is defective, because it contains no denial or traverse of the petitioner’s possessory right. Mon constat that he does not possess the widow’s right of freehold ; nor does it appear what title Gates Thurston had in the premises. He might have been seised by disseisin, and the petitioner may have since entered and become reseised. The plea therefore is not necessarily inconsistent with the petitioner’s claim, and a traverse of his seisin or right was necessary ; and the omission of it in this case is clearly matter of substance and fatal to the plea.

Fourth and fifth pleas adjudged bad.