25 N.H. 333 | Superior Court of New Hampshire | 1852
The question raised in the case is as to the sufficiency of these pleadings.
The first plea seems taken from the form introduced by Richardson, C. J., in his opinion in Hunt v. Hazelton, 5 N.
The first is in the form of the general issue, and seems designed to be such an issue. By the general issue, we understand a general denial of the gist or gravamen of thé plaintiff’s case, thus putting in issue all the facts alleged in his declaration or petition. This plea is such a denial of the facts alleged in the writ of partition at common law. But there is a clearly marked distinction between this proceeding and those prescribed by our statute. The writ of partition is in this form: “ The king, &c. If A. make you secure, &c., summon B. &e., to show cause wherefore, seeing that the said A. and B. hold together and undivided, (semel et pro indiviso,) three acres, &c., she, the said B., opposes making partition thereof between them, according to the law,” &e. Booth, R. A. 244.
The general issue is, “ non insimul tenuerunt,” ibid. And sometimes “ the said B. non tenuit insimul.” Cro. El. 759. These are direct denials of the allegations of the writ.
But this plea is not such a denial of the substantini allegations of the petition under our statute. This plea, indeed, does not deny, nor profess to deny, all the facts stated in the partition. It does not directly and in terms deny any facts alleged in it. Argumentatively, it may be considered as denying the tenancy in common between the petitioners and the respondents, but that is not enough to make a good general issue.
The facts alleged in the petition are, that the petitioners are seized, in common with the defendants, of the premises in question, and desire that their parts may be assigned to them in severalty.
The first of these allegations is that on which the right of
Independently of the statute provision in section 16 of the same chapter, which allows a petitioner to have a partition • made of any part of the land described in his petition, in which he shows that he has a right in common, and to have his part set off to him, though on a trial it proves to be much less than the share he claims in his petition, the general issue in the case of a single petitioner would be, “ that said petitioner was not seized of said one fourth part in common of said described premises, as he has alleged in his petition, and thereof he puts himself,” &c. This would be a simple, direct and plain answer to the material facts alleged in the petition, namely, that he owns a certain share in common of a tract of land, and wishes to hold it in severalty. As the statute contemplates that several claimants may join in a petition, either of whom may succeed, though
The first plea, if regarded as a general issue, has several glaring defects. It is argumentative and not direct, as before remarked. It is a negative pregnant, because it does not answer the whole case, but is so phrased that, though proved to be true, the plaintiff has, or may have, still a perfect right to recover. The issue tendered by the plea is immaterial, and no judgment can be rendered upon it. Thus it is said the defendant did not hold the premises together and undivided with the petitioners, as they allege, but it is not said “ nor either of them.” “ As they allege ” qualifies the previous denial, and confines it to the precise allegations of the petition, while those allegations may be very incorrect, without affecting the right to claim a partition.
If the petitionee has no interest in the property in question, and claims none, he may yet be subjected to the costs of the proceedings, if he suffers the case to go on against him without objection. There must, consequently, be a proper plea to avail himself of that fact. As the plaintiff is required to make “ all persons interested ” parties to his peti
The plea of nontenure, with a disclaimer, used in other real actions, seems to be an appropriate plea in such a case, when modified agreeably to our statute, which does not require that proceedings of this kind should be brought against a tenant of the freehold only. Its form might be, “ And the said A. B. comes, &c., and prays judgment, if the plaintiff, his petition aforesaid against him ought to have and maintain, because, he says, he is not tenant nor occupant of the premises described in said petition, nor of any part thereof, nor was on the day of the entry of said petition, nor at any time since, nor ever had or claimed to have any interest in said premises, but wholly disclaims to have any thing in the same, and this he is ready to verify. Wherefore,” &c.
The first plea is entirely defective, if the defendant’s object was to avail himself of this objection, since it does not deny every kind of interest in the premises, but merely the particular interest stated in the petition, while the suit is properly brought against him, if he has any interest.
The objection to the second plea is substantially the same as that to the first. The traverse, which is the essential part of the plea, and upon which alone any issue can be taken, (Story’s Plead. 417, and 9 Cow. 530,) is not as broad as the allegations of the petition in their legal effect, though it may be so in words. The traverse ought to be, “ without this, that the said M. and M., or either of them, were or are seized as tenants in common of any share or proportion of
Note. Much of the difficulty found in settling the issues of fact to be tried in petitions for partition, will be obviated by confessing so much of the plaintiff’s action as is right, and by pleading separately as to the parts of the premises in relation to which the claims of the parties are different. Thus, if the petitioner claims his rightful proportion, but embraces more land in his petition than he ought, the confession might be thus: “ And the said defendant comes and defends, &c., when, &c., and says that as to a certain piece or tract of land, parcel of said premises described in said petition, situate, &c., bounded, &c., (setting out a correct description,) he confesses the plaintiff’s action, and assents that partition thereof be made, as prayed for in said petition; and as to the residue of said described premises, — (the general issue as given in the case.)
If the petitioner claims more than his rightful proportion, and also in more land than he has a right in, the confession might be: “ And the defendant comes, &c., and says, that as to one fourth part of the following described tract of land, parcel of the said premises described in said petition, situate, &e., bounded, &c., he confesses the plaintiff’s said action, and assents that partition thereof be made, as prayed for in said petition. And as to the residue of the tract aforesaid, he says that the said petitioner, on the day of the entry of said petition,¡was not seized of any other or greater share or proportion of said tract, or of any part or parcel thereof, than is above confessed, in common and undivided, as he has alleged in his petition, and thereof puts himself on the country; and as to the residue of said premises described in said petition,” — (the general issue as in the case.)
If the petitionee has no interest in any of the lands described in the petition, he pleads nontenure and disclaimer to the whole, and is discharged with costs. If he has no interest in part of the described premises, he pleads nontenure and disclaimer to that part, and confesses or pleads to the residue.
As the petitionee recovers his costs, if the petitioner does not establish the full share he claims in all the land described in his petition, he has but a slight motive to narrow and define the points to be tried; it is, therefore, the interest of the plaintiff to state his claim accurately, as he expects to prove it, and to amend his declaration from time to time before trial, to conform to his proof.