Young v. Smith

10 R.I. 372

• Court: Supreme Court of Rhode Island
• Decided: October 6, 1872
• Status: Published

Opinion

Brayton, C. J.

The declaration in this case alleges that the plaintiff and defendant hold together, and are seised and possessed as tenants in common in their own right of the premises described, whereof it appertains to the plaintiff to have one fourth thereof to him and his heirs, and to the defendant three fourths part thereof to him and his heirs, in proportion and manner, and of such estate to the plaintiff unknown, to hold to them in severalty. To this declaration the defendant has pleaded that at the time of, the commencement of this suit he did not hold to gether with the plaintiff the premises described in the plaintiff’s declaration, and it did not appertain to him, the defendant, to have three fourths part thereof, or any part thereof to him and his heirs, to hold to him or them in severalty.

The plaintiff has replied to this plea that the defendant is es-topped to allege that he has no title to the premises, because heretofore he, the plaintiff, commenced an action of ejectment against said defendant, to recover one undivided fourth part of the same premises, alleging such title in himself that the defendant was tenant in common with him of the other three fourths part, and had ejected and put out the plaintiff from the possession, and still held him out. That the said defendant pleaded thereto, first, that he was not guilty; and, secondly, that at the time of the commencement of said action he, and those under whom he claimed, had been for the space of twenty years prior thereto in the uninterrupted, quiet, peaceable, and actual seisin and possession of the premises described, • during all said time claiming the same as his and .their proper sole and rightful estate in fee simple, without this, that the plaintiff was tenant in common of said land with defendant, and seised and possessed of the same as owner of one fourth part thereof. The allegation of the declaration that the defendant was owner in fee of three fourths, is not noticed, and is neither admitted nor traversed.

The replication further alleges that issue was joined upon the plea of not guilty, and that the defendant’s second plea in bar was put in issue. And upon trial the jury returned a verdict in favor of the plaintiff upon both issues. And judgment was rendered thereon for the plaintiff, to recover possession of one undivided fourth part of said premises. And further avers that the title of the defendant to said premises is the same now as at the rendition of said judgment against him in ejectment. And he prays judgment, if the defendant ought now to be admitted, against the said record, to aver that he did not hold together with the plaintiff the premises described in plaintiff’s declaration, and it did not appertain to the defendant to have three fourths, or any part thereof.

To this replication there is a general demurrer. The question is, if there is anything in this record * as set forth in this replication that should prevent the defendant from now averring that he has no estate or interest in the premises of which the plaintiff claims partition. The rule of law which the plaintiff calls to his aid in support of his replication is doubtless well settled, that when the matter pleaded had been put directly in issue in a former suit between the same parties and the jury had rendered a verdict therein, such verdict would operate as an estoppel to either party who would aver against the finding ; and if the matter of the defendant’s plea in this case were in issue in the suit in ejectment, and the verdict of the jury determined that issue, he could not aver against it. Neither party could.

The plaintiff claims that the matter set up on this plea in bar was in issue in the former suit, and the issue found for the plaintiff, in substance, that it was in issue in the former suit whether the defendant had any estate or interest in the premises described, and that the verdict was that he had; and so the allegation now, that he has no interest, is against the finding of the jury.

We think the plaintiff’s replication fails to show this. The record set out does not show any verdict in the judgment suit, that defendant -had any interest in the' premises.

The general issue pleaded by the defendant and joined in by plaintiff did not put in issue the title of defendant.

The plea of not guilty was simply a denial of every material allegation of the plaintiff in his declaration, every allegation which the plaintiff was obliged to prove in order to recover in ejectment the one fourth for which he finally had judgment. The matters to be proved were that he, the plaintiff, had a right to the possession of one undivided fourth part of the premises, and that the defendant had ejected him from them and held him •out. Upon this proof he would have been entitled to the verdict which he had.

It was not necessary to prove, though he had alleged it, that the defendant owned three quarters or any portion of the premises, as that was not necessary to his recovery. It was an allegation wholly immaterial, and for that reason not traversable. It was not traversed nor put in issue, and the defendant was not called upon to deny it for this reason. The only issue upon trial was the plaintiff’s title to one undivided fourth.

The issue raised upon the special plea in bar is substantiated upon the plaintiff’s title and not upon the defendant’s. The plea was against the claim of the plaintiff that he had title to an undivided fourth part; that he, the defendant, had acquired a title under the statute of possessions to the whole of the premises; and he traversed the plaintiff’s allegation of title to one fourth by saying in conclusion, “ without this, that the plaintiff is owner of one fourth;” and the issue was if the'defendant owned the whole four quarters or the plaintiff one quarter. The verdict was finally that the plaintiff did own one quarter, and that the defendant had not acquired any title by possession as he alleged. Nothing is proved for the defendant, and certainly not that he had any title to any portion of the premises.

The plea now, therefore, that he has no interest in the premises, is not an averment against anything found by the jury upon that issue, nor was it in issue.

The plaintiff claims further, in support of the replication, that the defendant is estopped from denying any ownership of the premises, because in the action of ejectment he set up a claim to the whole of the premises. The rule of pleading which is cited, that “ any confession or admission expressed or implied upon the pleadings operates as an estoppel as to the matter admitted,” as a general rule, in its proper application, is not questioned; but it supposes an admission upon the record of matter material to the right in suit, and matter not traversed and put in issue by the other party. The matter of the plea of title in defendant was affirmed by the defendant, but it was as solemnly denied by the plaintiff, and made matter of question by the parties, to be decided only by the jury. If in this state of the pleadings either could be estopped, both must be, and estoppel against estoppel would leave the matter free. But further, the truth appears by the same record, viz., by the verdict, which finds that' the defendant had not title in himself, and the verdict concludes the matter consistently with the defendant’s plea in the case.

We see, therefore, nothing in the record set out in the plaintiff’s replication that should estop the defendant’s denying any title in the premises as by his plea he has alleged, and

The demurrer must le sustained. The replication overruled.