3 N.H. 274 | Superior Court of New Hampshire | 1825
When this case was formerly before us, it appeared, that the demandant had a paper title ; but it did not appear, that he, or those under whom he claimed, had ever been in the actual possession of the land. We u ere of opinion, that, under those circumstances, the seisin of the demandant might be disproved by shewing a title in a stranger. 2 N. H. Rep. 522.
The case now presented for our decision is essentially different from the former case. It now appears, that the demandant has had the actual possession of the land. At least, he has a conveyance from one, who was in the actual possession under color cf title ; and this seems to us to be equivalent to an actual possession in the demandant himself. The question then is, whether it was competent to the tenant to shew a title in a stranger to disprove such actual seisin of" the demandant ? We are of opinion, that it was not Because, in such a case, an actual seisin by wrong is a sufficient seisin to enable the demandant to maintain a writ of entry against one, who enters without a better right, and disturbs the demandant so seised ; and shewing a title in a stranger has no tendency to disprove an actual seisin in the demand-ant Because, although the title may be in a stranger, the demandant may have been actually seised. We are, therefore, of opinion, that, as the tenant entered without judgment of law, and turned the demandant out of the actual possession of the land, evidence of a title in a stranger was wholly
But since the commencement of this action, the tenant has acquired a legal title to a moiety of the land, from One having a better title than the demandant ; and the question is, whether the tenant can avail himself of this title as a de-fence in this case ?
It is laid down in the old books, that if the land be recovered by a stranger pending the writ, the writ abates : and that an action against a disseisor abates, if the disseisee enter pending the writ. Com. Dig. “ Abatement” H. 54, 56.—14 Mass. Rep. 409, Walcut vs. Spencer.
It is now more than three centuries since real actions were generally in use in England ; of course few modern decisions in that country throw any light upon the subject. And wc have adopted the law of real actions with so many material modifications, particularly in relation to costs, that the ancient cases afford us no light in settling the question we are now considering. We must, therefore, resort to the law in analogous cases for a guide.
Where the tenant has unjustly and without title entered and turned the demandant out of the possession of the land, it is unjust to permit the tenant to purchase in the title, and by that mean protect himself from the expense of an action, rightfully commenced against him, and throw the costs upon the demandant.
On the other hand, if the tenant has actually acquired a better title to the land than the title of the demandant, there seems to be no sound reason why he should not be permitted to hold the land.
And we are of opinion, that in such a case, by permitting the tenant to plead a title thus acquired, in bar of the further maintenance of the action, justice may be done to both parties. The demandant will be entitled to costs up to the time of the plea pleaded, (Ante 96, Kimball vs. Wilson et a.) and the tenant will hold the land, to which he has a better title than the demandant.
