President of Williams College v. Mallett , 16 Me. 84 ( 1839 )

The opinion of the Court was by

Weston C. J.

The tenant pleaded the general issue, with a brief statement. Under the general issue, the demandants are holden to prove, that they were seized within the time, upon which they have counted in their writ. They did so. This the tenant might repel, by showing that another was seized at that time. Proof that the demandants had conveyed their title, after the commencement of the suit, was not of this repelling character. It had no tendency to disprove the seizin, upon which the demandants counted.

In Wolcot et al. v. Knight et als., 6 Mass. R. 418, it was held, that the tenant might plead in bar a conveyance by the demandant to a third person, under which he does not claim, but that he can not give it in evidence, under the general issue, unless to rebut the demandant’s evidence of seizin. Special pleading is now abolished; and a brief statement is substituted, where such pleading was formerly necessary. If therefore the tenant would have made the conveyance to a third person, since the commencement of this action, available in his defence, he should have set it forth in his brief statement. Not having done so, it is a point from which he is precluded.

.Besides the general issue, the tenant relies upon a disclaimer, set forth in his brief statement, in which he alleges a conveyance of all his interest, prior to the commencement of the action, to one Joseph M.allett. There was evidence that the tenant lived with his family on a part of the laud, and that portions of it were occupied and controlled by him. This would have disproved the disclaimer, and was sufficient to maintain the action against him, the demandants counting on a mortgage. Penniman v. Hollis, 13 Mass. 11. 429. The tenant did prove a conveyance by him made of lot number eleven in the fifth range, upon which he lived, to David Malleit, in August, 1829, but he proved none to Joseph Mallett, as set forth in his brief statement, except a general release of his interest in the township, of a subsequent date. And Joseph disclaiming all title to this lot, we are of opinion, that the brief statement was not made out in proof, and that the jury were upon this point properly instructed by the presiding Judge.

The demandants’ count conforms to their title, derived from the tenant’s deed. They must have judgment according to their count, which can embrace no lands, which upon a just construction should be deducted. And they must at their peril take possession according to their title. There was no occasion then for the third and fourth requests, and they were properly declined by the Judge.

Judgment on the verdict.