Potter v. Baker

19 N.H. 166 | Superior Court of New Hampshire | 1848

Wilcox J.

The ease Whittemore v. Shaw, 8 N. H. Rep. 393, settles the question that this special plea cannot be sustained. The demandant alleges generally that he is seized, without setting out the particulars of his title. The tenant cannot set up a particular title for him, allege that the demandant claims under that title, and then plead matter of estoppel under it. If, when the demandant’s title is shown, the tenant has matter of estoppel against it, he may give it in evidence, having had no opportunity to plead it.fc Adams v. Barnes, 17 Mass. 365; 1 Stark. Ev. 303.

But a fact found by a verdict and judgment, to constitute estoppel, must be res judicata: that which was necessarily and immediately found according to the pleadings, not that on which the verdict was merely based — a fact in issue, as distinct from a fact in controversy. Towns v. Nims, 5 N. H. Rep. 259; King v. Chase, 15 N. H. Rep. 9.

In actions for torts generally, nothing is conclusively settled but the point or points put directly in issue. Thus, in trespass, upon not guilty pleaded, the title is not concluded ; though if the title is put in issue by a plea of soil and freehold, the verdict will be conclusive in another action of trespass for an injury done to the same land.

It is usual in our writs to name the action brought; to say that the defendant is attached to answer, as in a plea of trespass, of debt, of the case, or of covenant broken. The demandant has so done in this case — “ on a plea of entry on disseizin,” where he demands possession of a tract of land. In the early history of this court, actions on the case were brought for the recovery of real property. Afterwards the declaration was, in a plea of ejectment, although it was in fact a writ of entry, and not of ejectment, properly so called; and this mode of declaring was adopted in some books of precedents of authority, and continued to a late day. We now say, “ in a plea of land,” which is a very general term, and in fact there is no such action. There is a writ of right? and a writ of entry, and of dower,, and other actions to recover land. There is such an action as a writ of entry sur disseizin, and that is the action brought. The demandant, therefore, has been even more particular and exact than the usual practice requires; for instead of saying that he has brought an action for the recovery of land, which is all that is meant by a plea of land, he has particularized his action as a writ of entry sur disseizin. On the whole, therefore, the declaration is good; at least, as the pleadings stand; if there is any defect, it is in mere form, and can only be reached by special demurrer.

Judgment on demwrer for the demandant.