Halsey v. Gerdes

17 Abb. N. Cas. 395

Opinion

Barrett, J.

—The case upon which defendants rely (Moores v. Lehman, 52 Super. CL [J. & S.] 283), is not supported by the authorities. It is well settled that an allegation of “seizin in fee,” followed by an averment of an unlawful withholding, is sufficient on .general demurrer (Ensign v. Sherman, 14 How. Pr. 439; Sanders v. Leavy, 16 How. Pr. 308; Walter v. Lockwood, 23 Barb. 228). Here the word “ unlawfully ” is omitted, but it may be treated as a conclusion of law or as surplusage (Payne v. Treadwell, 16 Cal. 220). The averment of seizin in fee is equivalent to an averment of the right to immediate possession (1 Washb. Real Prop. 58; Jenkins n. Fahey, 73 N. Y. 355, 361, and cases there cited ; Bouvier's Law Dict.; Abb. Law Dict.). The plaintiff being entitled to immediate possession, as implied from the seizin in fee, the defendant’s possession and withholding are necessarily wrongful. If otherwise, they must set up the facts from which they claim the right to withhold and retain possession.

The demurrer must be overruled with costs, and with leave to defendants to answer within twenty days, upon payment of such costs.