Proprietors of the Kennebec Purchase v. Davis

1 Me. 309 | Me. | 1821

Mellen C. J.

at the succeeding term in Cumberland, delivered the opinion of the Court as follows.

The defence in this action is certainly a novel one; and because the counsel for the tenant seemed to repose so much confidence in the merits of the plea in bar, we have taken a little time to consider it; and are now satisfied that it is bad, and that the demandants must have judgment,

The plea is unusual in its form; containing a disclaimer of part of the premises demanded ; and other facts as a bar to the action, as to the residue of the premises.—These facts, composing distinct answers to distinct parts of the declaration should have been pleaded separately, so that a distinct replication could have been given to each: But as the demurrer is general, perhaps no advantage of this irregularity in pleading can now be taken by the demandants.

The object of a scire facias is to enforce a judgment; and it is a general rule that a defendant cannot plead any thing to a scire facias which he might have pleaded to the original action. 6 Bac. Abr. 123. E. 4 Mass. 218. 12 Mass. 268. By inspecting the record, it appears that the facts disclosed in the former part of the plea touching the defendant’s possession and improvement of a part of the premises, were actually disclosed on the former trial; or at least a possession and improvement prior to that time; by means of which the tenant availed himself of the advantages of the act of limitation and settlement by having his improvements estimated as that act provides. The value of the land in a state of nature also was ascertained, and the premises so estimated were by the demandants abandoned to the tenant. But it is contended by his counsel that he has acquired new rights since the former trial: that these rights are founded on new fads, and that it is competent for him to plead these new facts in bar of execution. This conducts us to the inquiry whether, after the demandants had abandoned the premises to the tenant at their estimated value, he could be considered as holding them by virtue of a possession and improvement. We think he could not. He then held them under the operation of the above-mentioned act and the abandonment of the demand-ants founded on that act. An abandonment has the effect of a transfer of the estate to the tenant, on condition of his paying the estimated value within a limited time. By paying this value within such time he becomes absolute owner of the estate. If he do not pay the value within the time prescribed, he is considered as yielding up to the demandants all claim to the estate and as consenting that they should enter and hold the same with all improvements thereon made : and he may have by law his writ of possession accordingly. While a person is thus in the occupation of lands, we do not perceive how he can be con. sidered as holding them by a possession and improvement within the meaning of the statute, any more than the man who is in possession under a contract made with the proprietor; and it is settled in the cases of Knox v. Hook, 12 Mass. 329. and Shaw v. Broadstreet, 13 Mass. 241. that such a possession docs not entitle the occupant to any of its provisions.

This construction will appear plainer still if we consider the demandants’ rights as to the time and mode of suing out their writs of possession.—-By law they might have continued their judgment in full force, by suing out and annually renewing execution, without making any service or attempting to amove the tenant; and if such had been their course of proceeding, and, instead of a scire facias they had sued out a hah. facias, what could prevent the complete execution of it? Could the tenant resist its execution ? Certainly not. How then can the facts he has pleaded bar execution ? A scire facias to revive a judgment is intended to put the creditor in possession of the same rights, which he would have had and retained by keeping his judgment alive.

The tenant has neglected to avail himself effectually of his rights under the former judgment by paying the estimated value of the land and thus securing his title; and it is now too late for him to present his claim. In fact, he has no claim.

But it is further contended that if the plea be insufficient, so is the declaration: or, in other words, that no scire facias by law-lies in a case like the present; it being brought to revive a judgment in a real action. Independent of our statute provisions relating to the writ of scire, facias, it lay in a real action; and in the case of Withers v. Harris, 2 Ld. Raym. 806. was held to be necessary.—So to revive a judgment in ejectment. 2 Salk. 600. 7 Mod. 64.—So that if the statute of this State be construed to give, and require a scire facias to revive judgments, in personal actions only, the objection does not seem well founded: —We have no statute limiting the term within which such scire facias shall issue; nor have any rules been established by our Courts, as in England, regulating this subject, and prescribing the mode of application to the Court for permission to sue out the writ. We think there is no irregularity in this particular; and, on the whole perceive no ground on which the defence can be maintained.

Judgment that the plea in bar is bad and insufficient,