Waldo v. Mitchell

24 N.H. 229

• Court: Superior Court of New Hampshire
• Decided: December 15, 1851
• Status: Published

Opinion

Bell, J.

The replication in this case is bad, for the cause of demurrer last assigned, namely, that the tenant who alleges in his plea that he has been disseized and put out of possession, and is for that reason unable to render the demanded premises as required by the writ, still remains disseized, and out of possession, notwithstanding any thing alleged in the replication. That the tenant has reentered and is now tenant, is a good replication. Com. Dig., Abatement, H, 48; because it shows that a good' cause of action, still remains against him. But it is not enough that the levy under which Blaisdell entered and disseized, that is, dispossessed the tenant, is avoided by a redemption, for that may be true and still the tenant who had escaped from a lawsuit may not have again subjected himself to the demandant’s action by a reentry. If that is the fact, it must be distinctly alleged. Here nothing is stated in regard to the possession in the replication. If then the plea is good, the demandant’s writ must be abated.

The plea, as a plea of entry or disseizin by the demandant, to say nothing of its being, as such, merely argumentative, is defective in substance, because every such plea must show such an entry as makes the demandant tenant of the land ; and it is not enough to set forth that he went upon the land without claiming anything. Com. Dig., Abat., H, 48; Plowd. Comm., 92; 9 Vin. Ab., 466, Entry G, 7, pl. 15.

Here it is not alleged that the demandant entered upon the land, either with or without a claim, but merely that he assented to the levy made by his creditor, by appointing an appraiser, and that Blaisdell, the creditor, became seized, and not the demandant.

But the recovery of the land by a stranger is equally good cause of abatement as the entry of the demandant himself. Com. Dig., Abat., H, 54; Walcutt v. Spencer, 4 Mass. 409.

And this plea, if well pleaded, would be a good plea of such recovery; for an extent, accompanied by actual possession of the creditor, seems to stand on the same reason as a recovery by a judgment at law. But there is this difference between a plea of entry by the demandant and a recovery by a third- person: An entry by the former into a part of the demanded premises abates the writ for the whole. Com. Dig., Abat., H, 48; Bro. Ab., Briefe, 332. A recovery of apart of the premises by a stranger abates the writ for that parcel only. Com. Dig., Abat. H, 54. The reason of this distinction it is unnecessary to inquire into. It is enough that we find the rule established. Perhaps a sufficient reason would be found in the circumstance, that in the first case the party’s writ is defeated by his own act. By the last rule, the defendant’s plea is bad, because the recovery of part is pleaded in abatemet of the whole writ. It is good cause to abate it only for so much. If an entire plea is bad in part, it is bad for the whole; 1 Ch. Pl., 522; Com. Dig., Pleader,-E, 36; Harris v. Jameson, 5 D. & E. 553; Hallett v. Holmes, 18 Johns. 28, and cases collected in 3 U. S. Dig., 154; 5 do. 548.

As there can be no respondeas ouster after a plea puis darrein continuance, (Com. Dig., Abat., J, 15; 1 Ch. Pl. 457,) there must be

Judgment for the demandant.