Parlin v. Haynes , 5 Me. 178 ( 1827 )

"Melt.EN C. J.

delivered the opinion of the Court.

This is a writ of entry, tried on the general issue. By the report it appears, that about three months prior to the commencement of the action, the demandant conveyed part of the demanded premises, for which he obtained a verdict, ¿to one Edward R. Favor; and that, since the commencement of the action, Favor conveyed the same to WitJiam, and Witharn conveyed the same to the tenant. The deed to Favor was admitted in evidence without objection; and the other two deeds, on objection by the counsel for the demandant, were excluded. The question reserved is, whether Witham’s deed to the tenant was properly rejected; and, if so, whether the defence of the action is good without that deed. It is evident, that as both the deeds rejected were objected to, and excluded on the same ground, the inadmissibility of either is as fatal to the defence of this action, as of both. For the sake of clearness we .will consider the merits of the defence as founded merely on the deed from the de-mandant to Favor. If this conveyance had been pleaded in bar, inasmuch as nothing appears that would have prevented the operation of the deed, it would have defeated the action, although the tenant did not claim under it, according to the principles laid down in Wolcott v. Knight, 6, Mass. 418. Or if the conveyance, instead of being to Favor, had been directly to the tenant, and had been pleaded in bar, as was done in the case of Everenden v. Beaumont, 7. Mass. 76, it would have been a substantial defence, even if such conveyance had been made after the commencement of the action. Or if the present action had been a writ of right, instead of a writ of entry, the demandant’s conveyance, if operative, though made before the action to a stranger, might be given in evidence on the general issue, according to Knox v. Kellock, 14. Mass. 200; or if made after the' action commenced, it might, if made to the tenant, constitute a good defence on the general issue, according to the principles recognized and established in Poor & al. v. Robinson, 10. Mass. 131. The case now under consideration is different from all these; but it is clear that on the general issue, the deed from the demandant was inadmissible; and its admission without any objection does not alter the case ; because it has no tendency to disprove the allegation of the demandant’s seisin within twenty years ‘before the date of the writ; and proof of such a seisin is sufficient for the demandant, unless the tenant can show a title superior to the de-mandant’s. Independent, therefore, of the two deeds which were offered and rejected, the defence is without foundation.

The remaining question is, vyhether those deeds were properly • excluded. In Andrews et ux. v. Hooper, 13. Mass. 472, the court lay down the law distinctly, that the tenant cannot be permit-. ted to setup a title under a-deed made since the commencement of the action; and observe that a title, thus acquired, had been uniformly rejected in the com ts of Massachusetts. They further rely on the case of Le Bret v. Papillon, 4. East, 502, in which Lord Ellenborough says, that since the case of Evans v. Prosser, 3. D. & E. 186, was decided, it had been “considered as a settled rule of pleading, that no matter of defence arising after action brought, can properly be pleaded in bar of the action generally.” We admit that a conveyance of the demanded premises by the demandant directly to the tenant, is a fair exception from this general rule, and would constitute a good plea in bar; and it is very clear that a defendant may show that a plaintiff has, by his own act, defeated his own action; as where the demandant in a real action enters into and takes possession of the demanded premises; or a feme sole plaintiff in a personal action intermarries; in both of these.cases, the entry and marriage, pending the action, will, when properly pleaded, defeat it. In the case of Andrews & al v. Hooper, before cited, the court observe that, to sustain an after purchased title would operate unequally and unjustly, by enabling a tenant to fortify a defective title, and avoid the payment of costs, for which he might otherwise be liable ; and which in the course of an expensive suit might even exceed the value of the land in litigation.”

It has been urged that, as the title procured by the tenant since the action was commenced, is derived from the demandant 'himself, through Favor and Witham, this case is not within the range of the principles before stated; but no authority is produced in support of the supposed distinction; and as the demandant has done no act in relation to the demanded premises, since the commencement of the action, showing his iuteution to defeat it; we are not able to perceive any sound reason why a deed from Favor, executed in the commencement of the suit, should be entitled to admission in evidence, any more than a deed made, under such circumstances, by any other person, admitting him to be even the true proprietor of the land; and surely such a deed could not be received to constitute a de-fence. The law is clearly otherwise.

It is true that the tenant may in another action avail himself of the title he has procured since the institution of the present, and by means of it recover back the premises from the demandant ■ bm that is no reason why he should not succeed .in obtaining judgment in this case, and thus secure to himself those costs which he has been obliged to incur in his action against a man, who, when sued, had no title whatever to the land demanded. We are all of opinion that there must be Judgment on the verdict.