Nason v. Allen

5 Me. 479 | Me. | 1829

d n C. J.

delivered the opinion of the Court

This seems to be a very plain ease. As the replication merely denies the averment in the plea, that the demandant, held and claimed the premises in fee; that is, that she had any other title than a right to have her dower assigned, she ought to have concluded to the country, as the more correct mode of pleading. But this objection, if a good one, is not good on a general demurrer. 1. Chitty 540. But it is said that the replication is a departure, and does not support the declaration. It is true it does not re-state the facts contained in it; for the plea does not deny them ; but still it is no departure. “ Á departure in pleading is said to be when a party quits or departs from the case or defence which he has first made, and has recourse to another.” 1. Chitty Pl. 618. It is a denial of the asserted title in her, under which the tenant professes to claim the lands in question as his own estate in fee. Suppose the plea in this case had stated by way of bar to the action, that the demandant by her deed had released to the tenant her right of dower in the premises; surely she might properly have replied non est factum, without being guilty of a departure in pleading. In such case the replication, by removing the bar, supports the declaration.

But supposing the replication to be bad, is the plea good? Certainly not. Tt neither traverses nor confesses and avoids any one of the essential lacts alleged in the declaration $ but merely states certain facts as to her conduct and claims, after the death of her husband, in respect to the premises, which gave her no legal right or title to them, if into ; and ooiy rendered her liable to the heirs of her husband as a wrongdoer. But the counsel for the tenant contends that by the levy of his execution on the whole of the premises, and the whole estate therein, as before merA&ned, the demand-ant’s right of dower was divested and transferred to the tenant. No authority has been produced to support such a decirme, and we arc well satisfied none can be found. Some of the decisions, cited by the demandant’s counsel, show that such a right cannot be taken on execution directly ; and if so, there is less ground for supposing it can betaken indirectly, in the mode resorted toby the tenant. No mere right can be attached or taken on execution, except in those cases provided for by statute; as, for instance, the right to redeem mortgaged premises; but though a debtor has a right to redeem property on which execution has been extended, still that right is not the subject of attachment or levy on execution, any more than the right of redeeming personal property pledged or mortgaged. The tenant’s experiment has proved, wholly unsuccessful. We are clearly of opinion that the defence is without foundation; and according to the form of the issue, adjudge the replication good and sufficient.