Wheeler v. Bates

21 N.H. 460

Opinion

Bell, J.

The conclusion of the plea of non-tenure in this case is bad. Non-tenure here, is a plea in abatement. Brown v. Miltimore, 2 N. H. Rep. 442; Mills v. Pierce, 2 N. H. Rep. 10; Sperry v. Sperry, 8 N. H. Rep. 477. Such plea must conclude with praying judgment of the writ. Clark v. Brown, 6 N. H. Rep. 434; Pike v. Bagley, 6 N. H. Rep. 76. This is a defect of form merely, and may be amended on terms. It is settled here, that non-tenure is a good plea in abatement in a writ of entry on a mortgage. Wilson v. Webster, 6 N. H. Rep. 419. It is a perfect answer, if the tenant claims under any one, who has a paramount title. If the claim is under one, who holds subject to the mortgage, the plaintiff should reply and maintain his writ. The mortgagee may treat every person, whom he finds in possession, whose title is not good against him, as a wrongdoer and disseizor, at his election ; and no disseizor can qualify his wrong, by alleging that he is seized of a less estate than a fee. Wilson v. Webster, as above; Towle v. Ayer, 8 N. H. Rep. 57.

The demurrer is sustained; but the defendant may amend his plea on terms.