5 N.H. 391 | Superior Court of New Hampshire | 1831
delivered the opinion of the court.
It is contended, that evidence, which was inadmissible upon the general issue, was received in this case. What the defendant did in pulling down the house was done, not as an officer, but as the servant of E. Webster, after possession had been obtained under the execution. And it is well settled, that in trespass to real property, the title of the defendant, or the person under whom he justifies, may be given in evidence, under the general issue, to show that the right of possession, which is necessary in trespass, is not in the plaintiff. 1 Chitty’s Pl. 492; 8 D. & E. 403, Argent v. Durrant; 7 Ditto, 354, Dodd v. Kyffin; 2 Manning & Ryland, 226, Johnson v. Howson.
The right of D. T. Murray to maintain the action was completely disproved. E. Webster had recovered a judgment against him for the land, and had obtained possession.
If Mary Murray had any title to the land, as a tenant in common, she may maintain trespass, quare domum freg-it, for pulling down the Jurase? Coke Litt. 200 ; 8 B. 6 C. 257, Cubitt v. Porter ; 7 Cowen, 229.
But whatever cause of action, she may have had, it is a fatal objection to a recovery in this case, that she has joined in the action with another, who had no cause of action. 1 Chitty’s Pl. 54 ; 4 Pick. 234, Grozier v. Atwood; 7 J. B. Moore, 29, Steel v. Western.
Judgment on the nonsuit.