Richards v. Randall , 70 Mass. 53 ( 1855 )

Dewey, J.

Under the rules of special pleading, the demand-ant, having filed no replication to the disclaimer, would have, been held to have assented to the position, taken by the tenant, that he had claimed no title to, and exercised no acts of ownership over, that portion of the land disclaimed ; and that portion of the land would have been no longer in issue.

But by the provisions of St. 1836, c. 273, abolishing special pleading, no other plea can be filed than the general issue. Hence, in the present case, the proper mode of pleading would have been, to have pleaded the general issue as to the whole. and filed the disclaimer, as a specification of defence, as to a part. Wheelwright v. Freeman, 12 Met. 156. Had this been done, no further pleading would have been required of the demandant to put in issue the matter of the disclaimer, and the whole case would have been properly tried under the general issue. Instead of adopting this form of pleading, the plea filed was one plea or answer to the whole claim, denying the disseizin as to a part, and disclaiming as to the residue. No replication was filed to this plea, nor any formal issue joined; but the parties proceeded to trial, apparently treating the tenant’s plea as the general issue, and, as such, requiring no replication, but opening the question of the truth of the plea, as to both portions of the land. And the course of the trial and the evidence offered were such as to raise both questions.

We think the case must now be considered as having been submitted to the jury upon both points, and the demandant entitled to all the benefits that he would have been entitled to under the general issue required by the statute. The actual finding of the jury was for the tenant, as to the portion of the land the title of which was in question ; and for the demandant, as to that portion as to which the issue raised was whether the tenant had claimed title to it. Under the general rule, giving costs to the plaintiff, if he maintains his action, though in part only, the demandant is entitled to costs, as this is not a case where there are two or more counts on only one of which the plaintiff recovers judgment. Rev. Sts. c. 121, §§ 1, 16.

The further question, and perhaps a more difficult one, is that of the right of the demandant to recover damages for rents and profits or use of land as to which the tenant disclaimed title. No such question could arise in a case where the disclaimer was in accordance with the truth ; for when the tenant had not claimed or occupied the land, he could not be liable for use and occupation. But in this case the verdict shows that the action was properly instituted, and that the tenant had set up a claim of title, and had actually used and occupied the premises, and received rents and profits for which he ought to be chargeable. In such a case, when issue is taken on a plea of nontenure or disclaimer, and the demandant maintains the issue on his part, he may virtually be said to recover judgment for the land, within the meaning of Rev. Sts. c. 101, § 14; and there is no more reason why he should not recover rents and profits, than if he had prevailed against a tenant who denied his title before the jury; the leading object of the statute—to prevent multiplicity of actions —applies equally in both cases. The court are therefore of opinion, that on a writ of entry, when the tenant specifies in defence a nontenure or disclaimer, and the jury find for the demandant on that issue, he may recover damages for the rents and profits, wrongfully taken by the tenant, of the land disclaimed.

The demandant is therefore entitled to judgment for his costs, and also for his damages for the occupation of the land disclaimed.