Merrill v. Russell

1 Mass. 469

Opinion

Thacher, J.

It appears to me, that the law

(a) contemplates two descriptions of persons against whom a writ of dower may be brought—First, persons in the actual possession of the estate, in which dower is demanded ; and Secondly, such persons as have or claim right or inheritance in the estate. The present action is brought against the defendant as tenant in possession, not stating that she has or claims the right or inheritance. The plea, which is confessed by the demurrer to be true, denies that the defendant is the tenant in possession : this sufficiently answers and rebuts the demand in the writ; and therefore there must be judgment for the defendant, as to that part of the lands in which the demandant claims dower, which is described in the first plea in bar.

Sewall, J.,

of the same opinion. The declaration does not allege that the defendant claims the inheritance or right: the plea therefore is a sufficient answer to the action, as it is a direct negative to the materia] allegations in the writ.

Sedgwick, J.

In this case, the demandant, after setting out her title to dower, alleges that the defendant has entered into the premises of which the demandant is dowable, deforced her of her dower and holds her out of it. To this demand, the answer of the defendant, by plea, is, that neither at the time the dower was demanded, nor at any time since, was she (the defendant) in possession of the * premises in which the dower is demanded. [ * 471 ] To this plea, which contains an express denial of the material facts on which the demandant relies, there is a general uemurrer; and nothing can be more certain, than that the plea exhibits a good bar to the demandant’s action.

Judgment for the defendant.

Act of March 11, 1784, sect. 1, (stat. 1783, c. 40.)