| N.H. | Jul 15, 1870
From the facts found in this case, it seems that we came .to a correct conclusion as to the nature and objects of this agreement, as well as the motives and reasons which led to the making of the same, in our former opinion in this case. 48 N. H. 491, 524. And upon the facts here stated we are confirmed in the conclusions to which we arrived in that opinion, that it was an order or agreement having reference to the trial of the cause at the next term before the jury; that at that term the ruling refusing to set it aside was correct: but that after that trial had passed, if there was to be a new trial, either from a disagreement of the jury at that trial, or because the verdict rendered should be set aside on exceptions, or if the case should be reviewed, then that, for proper reasons shown, that order or agreement might be modified or set aside upon some terms ; and that it would be within the discretion of the court at the trial term to set aside the same,- or to allow it to be modified. We cannot doubt that this conclusion was correct; and that being so disposes of the first case reserved, because the court, at the trial term, heard the parties and their proofs, and exercised the discretion which it was their right to do, and ordered a judgment, and we do not understand that any question of discretion is here reserved.
The court, by ordering a judgment annulling the agreement and reserving no exceptions, has put the plaintiff, against whom the ruling was made, to his bill of exceptions, upon which a hearing is to be had and a decision made by our present statute — Gen’l Stats., chap. 189, sec. 10 — “ as upon a writ of error, or other proper process for bringing the same before the whole court for decision.” Neither a writ of error nor an exception lies to a ruling or decision which is within the discretion of the court. Fowler v. Towle, 49 N. H. 507. The court may reserve a question of discretion if they choose, but that is not this case. No questions are here reserved. And there is really no foundation for this bill of exceptions.
But without feeling called upon to do so, we have as a matter of curiosity examined the evidence upon which the court at the trial term made their ruling, and see no reason for revising the decision arrived at in this case. This case is discharged.
2d Case.
By our statute costs shall follow the event of every action or petition unless otherwise directed bylaw or by the court. Gen. Stats., ch. 214, sec. 1. And in real actions the defendant, who disclaims the whole of the demanded premises, shall recover costs, unless the plaintiff maintain his writ as to some part thereof. Id., sec. 6. And where a tenant disclaims either the whole or a part of the demanded premises,, the demandant may still maintain his writ, for the prevailing party in a writ of entry is in this State entitled to costs. Society, &c. v. Hall, 2 N. H. 417.
So by the 15th rule of court such amendments are allowed in all cases. No exception is made in case of real actions, or in case a disclaimer is pleaded in such action. Taylor v. Jones, 42 N. H. 38; Judge of Probate v. Webster, 46 N. H. 518. Suppose in a suit on a promissory note the defendant confesses a certain part of the plaintiff’s claim, and pleads to the residue: in such case the plea of confession is a sufficient foundation for a judgment pro tanto. J3ut no judgment is taken on that portion of the claim until the fact in dispute is tried and a judgment rendered in the whole case; and at any time before such judgment, such plea of confession may be amended, like any other plea. The defendant might be allowed to withdraw this confession entirely if he made a case strong enough, or he might be allowed to confess a larger sum due, or a less sum.
So in a writ of entry, if the defendant disclaim the whole, and the plaintiff stops there, the defendant shall recover costs; and, as is remarked in Prescott v. Hutchinson, 13 Mass. 442, where this same question is discussed, — “ The judgment has relation in every case to the plea, and its effect depends upon the nature of the plea. So that, although judgment should be for the tenant, upon a disclaimer pleaded in bar, yet the demandant’s right to the land would not be lost or barred by the judgment, because the same record, taken altogether, would show that the tenant admitted the demandant’s title to the land, and he (the tenant) would afterwards be estopped from denying it.”
But we do not understand that this final estoppel is raised and made absolutely conclusive until the judgment.
So when it is said in Hamilton v. Elliott, 4 N. H. 190, that the tenant in that case cannot now set up any title under the mortgage against his disclaimer, it must be understood that the disclaimer was filed, and a judgment rendered upon it, ten years before the suit in question was brought; and what is there said of the force and effect of a disclaimer, applies only to a disclaimer in a case where judgment has been rendered.
And so we find in Jackson on Real Actions 97,101, and Stearns on Real Actions 222, the same or similar remarks upon the nature and effects of a disclaimer; but we think that these remarks refer to the effect of the disclaimer after judgment, and not before. In Jackson on R. A., p. 100, this statement is made: “ But after a general disclaimer, he (the tenant) is forever bai’red from asserting any title inconsistent
But a verdict does not have any effect to bind or estop any one finally until there is judgment- upon it. The verdict may be set aside before judgment, and then it can effect no one, any more than a disclaimer or plea of confession can effect or bind one after it is withdrawn or modified. Either may be a good foundation for a judgment; but until the judgment they may be set aside or changed or modified, and have no force to operate as an estoppel, to prevent the pleader from changing his position from amending his plea, until the judgment.
In Coke Littleton 862 and 363, sec. 691, it is said — “Also if tenant in taile discontinue the taile, and dieth, and his issue bringeth his writ of formedon against the discontinuee (being tenant of the freehold of the land), and the discontinuee plead that he is not tenant, but utterly disclaymeth from the tenancy in the land; in this case the judgment shall be that the tenant goeth without day; and after such judgment, the issue in the taile that is demandant, may enter into the land notwithstanding the discontinuance, and by such entrie he shall be adjudged in his remitter. And the reason is, for that if any man sue a prcecipe quod reddat, against any tenant of the freehold, in which action the demandant shall not recover damages, and the tenant pleads non-tenure, or otherwise disclaime in the tenancie, the demandant cannot averre his writ, and say that he is tenant as the writ supposetli. And for this cause the demandant, after that judgment is given that the tenant shall go without day, may enter into the tenements demanded, the which shall be as great an advantage to him in law as if he had judgment to recover against the tenant, and by such entrie he is in his remitter by force of the entaile. .But where the demandant shall recover damages against the tenant, there the demandant may averre that he is tenant as the writ supposeth, and that for the advantage of the demandant to recover his damages, or otherwise he shall not recover his damages which are or were given to him by the law.”
And in the note it is said, that “ albeit the express judgment be in such case that the tenant shall go without day, yet in judgment of law the demandant may enter according to the title of his writ; ” also, “ that in such a prcecipe, where the demandant is to recover damages, if the tenant plead non-tenure or disclaim, there the demandant may averre him to be tenant of the land as his writ supposes for the benefit of his damages, which otherwise he should lose; or pray judgment and enter. But where no damages are to be recovered, as in formedon in the discender and the like, there he cannot averre him tenant, but pray his judgment and enter, for thereby he hath the effect of his suit.”
At common law there were no costs, and so, unless there might be a judgment for damages, the judgment was upon the disclaimer, that the tenant go without day, that is, to be discharged of further attendance; but in such case it seems the demandant was always to pray judgment, and judgment was to be rendered before entry into the land.
The only question would be whether the amendment ought to be allowed in order to do justice between the parties; and we see no reason why the defendants should not be allowed to amend this plea, for the reason that they have been allowed to specify additional grants made within the limits of Sargent’s purchase before the grant to Sargent. The fact that they have found new grants, if it be so, which had been made in the limits of their purchase, and which are to be made up on the north, would of course vary their north line.
We are unable to see why the same causes and reasons which would lead the court to annul the agreement between the parties and allow the defendants to claim more “ outs” to be deducted from Sargent’s purchase than were at first known or claimed, should not require that the line fixed by the disclaimer should be altered to correspond, in order that the defendant, if he should prove these “ outs,” might have the benefit of having them added upon the north, according to his grant or deed.
We cannot doubt that it is a matter properly within the discretion of the court at the trial term, to allow this disclaimer to be changed or amended as requested. And we see no reason why the orders anulling the agreement before made, for the purpose of showing these additions upon the north, would not be a sufficient reason for allowing the line fixed by the disclaimer to be changed.
So far as the power and right of the court to allow this amendment are concerned, the exception is sustained, and we see no reason why as a matter of discretion such amendment ought not to be allowed.
Exceptions sustained.