Bailey v. March

2 N.H. 522 | Superior Court of New Hampshire | 1823

Richardson, C. J.

It is a general rule in ejectment, that the defendant may disprove the plaintiff’s right to recover, by shewing a title in a stranger. There are limitations and exceptions, but the rule is well settled. Buller's N. P. 110.— 2 Selwyn N. P. 666.—1 D. & E. 758, note.—4 D. & E. 682. Douglas 695, Doe vs. Pott.-3 John. 375, Klock vs. Hudson.—4 John. 202, Duncan vs. Harder.—6 John. 34, Smith vs. Stewart.—8 John. 487, Kimball vs. Van Slyck.— 10 John. 223, Jackson vs. Bush.—12 John. 182, Anderson vs. M'Leod.—14 John. 224, Brown vs. Ayers.—16 John. 200. And it has been settled that in a writ of entry, the tenant may plead in bar a conveyance made by the demandant to a stronger after the disseisin. 6 Mass. Rep. 418, Wolcott vs. Knight. And Parsons, C. J. there recognizes the rule, that in a writ of entry, evidence of a title in a third person is admissible, to rebut the evidence of the demandant's seisin.

In the case of Andrews vs. Hooper.(1) it is said that a tenant in a real action cannot give in evidence a title obtained since the commencement of the suit. The fr-t r”sou assigned is that it u would oper.it, unequn’by and u¡ jn‘tiy, By “ enabling the tenant to fortify a defertile tide, at J avoid “ the payment of oo-i«, for whi, i. }j r.u in cl! .-ri- b, ⅛ “ able.” But this view of the sur je a txtu.o not m be quite correct. The evidence was offered not to fortify a defect J ti\ v title, but to disprove the demandant’s seisin ; “ to shew,3 as ih° comisel expressed it, “ that the demandants had no “ right,” and surely if they had no right, if their suit had no lust foundation, there would be no injustice in subjecting them to costs. Another reason assigned for the decision seems to be, that the dictum of Lord Mansfield, in Sullivan v. Montague (1) that “ actio non goes in every case to the u time of pleading, not to the commencement of the action, “ has been overruled from which it seems, from the report, it was inferred that a defendant cannot avail himself of matter arising after the commencement of the suit as a defence. But nothing can be more destitute of foundation, than this inference. It is well settled that matter arising alter the commencement of the action cannot be pleaded in bar of the action generally : but it is as well settled, that it may be pleaded in bar of the further prosecution of the action. Sullivan vs. Montague, Douglas 102.—1 Chitty's Pl. 532, 633.— 10 John. 182, Bell vs. Chapman.—14 Mass. Rep. 409, Walcut, vs. Spencer.—4 East 502, LeBret vs. Papillon.—2 Mass. Rep. 171, Gilmore vs. Carr.—2 Chitty's Pl. 676.—Lawes Pl. in as-sumpsit 639.

(1) Doug. 102. (2) 3D. & E. 18&

The case of a set-off arising after the commencement of an action stands on its own peculiar ground. It can in no shape be used as a defence. Evans vs. Prosser.(2) And if it were a settled rule of law that a defendant could in no case avail himself of matter arising after the commencement of a suit as a defence, still it would be difficult to conceive how a tenant in a real action could be precluded by that rule from disproving the demandant’s seisin, by shewing a title in a third person.

In the present case, the demandant offered no evidence of his seisin, but a certain deed of Giles Richards, made in 1803 and other deeds conveying to himself what passed by that, deed; and we are of opinion that the tenant by shewing a conveyance by Richards ot all his interest in the land in the year 1797, to persons under whom the tenant claims, has disproved the demandant’s title, and is entitled to

Judgment on the verdict.