| N.H. | Mar 11, 1875
Landlord and Tenant Act — Pleading. This is an action brought under the provisions of sec. 23, *307 ch. 231, Gen Stats., known as the landlord and tenant act, to recover possession of land. It is undoubtedly to be governed by the general doctrines of the law applicable to real actions, among the most fundamental of which is that the plaintiffs can recover only on the strength of their own title, not on the weakness of that of the defendant. The plaintiffs' counsel in their brief claim that the defendant's plea, wherein he sets up title to the demanded premises in himself, is to be given the same effect as a plea of liberum tenementum in an action of trespass quare clausum fregit; that is, that it admits the plaintiffs to be in possession, and raises only the question whether the close described was or was not the defendant's freehold. I think this is quite fallacious. The action is brought for the sole purpose of obtaining possession; and the whole burden of the plaintiffs' complaint is, that the defendant is wrongfully in possession and wrongfully holds them out. It seems to me very clear that no such rule can be thus imported, and applied to pleadings in a real action until the plaintiffs in some way allowed a jus possessionis in themselves, the issue presented by the plea was a immaterial issue, and its determination against the defendant settled nothing one way or the other with respect to the right of the plaintiffs as set up in their writ.
The question then is, Did the bond carry with it the right of possession of the land? I think not. It is true, as the plaintiffs say, that it contains a stipulation that Bartlett shall keep the buildings insured and pay the taxes. But all that is consistent with the idea that he was to enter and occupy merely by license of the obligors; and it is not improbable that this was the legal relation in which the parties stood to each other. Such a license, of course, would not be assignable. But however that may be, I am unable to find anything in the bond whereby it can be said that that instrument was sufficient to invest the obligor with seizin of the land, or any right of possession which he could convey by assignment of the bond or otherwise. This being so, it follows that no evidence of right or title to support their cause was shown by the plaintiff, and the defendant's motion for a verdict in his favor ought to have been allowed.
CUSHING, C. J., and FOSTER, C. J., C. C., concurred.
Exceptions overruled. *308