Inhabitants of Truro v. Freeman

123 Mass. 187, 1877 Mass. LEXIS 236

Opinion

Ames, J.

Since the abolition of special pleading in this Commonwealth, if the tenant in a writ of entry, instead of putting in issue the demandant’s title, chooses to defend himself upon the ground of nontenure or disclaimer, he may plead the general issue of nul disseisin, and accompany his plea with a specification of his real ground of defence. Gen. Sts. e. 129, § 15; c. 134, § 12. In this case, the specification purports to he a part of the plea, and is incorporated with it, instead of being expressed upon a separate paper, and filed separately; but this peculiarity does not affect the substance of the allegation. It is still a plea of the general issue, accompanied with a specification, within the meaning of the 45th Rule of the Superior Court.

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It was allowable under this plea and specification to show that he tenant had only a reversionary interest in the estate, was not in the occupation of it, and _ had no right of present possession, but that, on the other hand, Atkins was lawfully occupying’ under a homestead right, the entire premises being worth less than the statutory limit of that right. If such were the fact, the action cannot be maintained against the tenant. Martin v. Graves, 5 Allen, 601. Kerley v. Kerley, 13 Allen, 286. Hall v. Whiston, 5 Allen, 126.

Testimony as to the assessors’ valuation of the property having been received without objection, it was within the discretion of the presiding judge to allow the tenant, for the purpose of explaining and correcting the testimony of his own witness, to show what that valuation really was, by the record itself. The effect of this evidence was carefully limited to this purpose of explanation. As the jury were distinctly instructed not to consider it as bearing on the question of value, we must presume that the value was adequately proved by other evidence.

The parties may consider the expediency of applying to the court below to order the verdict and judgment to be entered in such a form as to clearly show what issue has been actually tried and decided. Judgment on the verdict.

“ In all real actions, where the tenant relies on disclaimer, nontenure, or any other defence, which, under the rules of common law, could not be shown under the general issue, he shall present the same in a specification of defence »t the time of filing his plea.”