Hazen v. Wright , 85 Me. 314 ( 1893 )

Haskell, J.

Writ of entry to recover land. At the second terai the defendant pleaded non tenure with disclaimer as to one undivided half thereof and nul disseizin as to the other half.

Before the statute prohibiting the plea of general non tenure and disclaimer in bar, and requiring that defense to be made in abatement, which must be interposed within the two first days of the return term, such pleas presented traversable facts, that, if proved, might defeat the action. But, since that statute, such defense cannot be interposed at all after the lapse of the time for pleas in abatement. So that any plea of that character, not seasonably filed, sets up no legal defense whatever, and may be held bad on demurrer, Hathorn v. Corson, 77 Maine, 582, disregarded, Ayer v. Phillips, 69 Maine, 50, Hatch v. Brier, 71 Maine, 542, treated as null, Putnam Free School v. Fisher, 38 Maine, 324, or stricken out, and judgment entered for want of plea.

In this case, that result follows as to the undivided half disclaimed. For that half, the plaintiff may have judgment with costs, as an undivided part of the premises demanded may now be recovered. E. S., c. 104, § 10. But, as to the other half, the defendant pleads nul disseizin. Upon proof of title, the plaintiff might recover that half also. The plaintiff’s title to one half only is denied. The defendant’s plea is a limited general issue, neatly pleaded, to put in issue only the facts in controversy. It is simple, plain, truthful, and convenient. It does not attempt to answer the whole declaration, as in Augusta v. Moulton, 75 Maine, 556. The plaintiff’might have joined the issue tendered, and tried his right to the undivided half of the land claimed by defendant. This he did not choose to do, but confessed, by demurrer, the truth of defendant’s plea, and asks judgment for the whole land, at the same time admitting that he owns but half of it.

It is analagous to a case where two distinct parcels of land are demanded, and the defendant pleads nul disseizin as to one parcel and remains silent as to the other. Can there be any doubt that such plea would be good so far as it went? Or, where two notes are sued, and defendant pleads non assumpsit as to one, and declares nothing as to the other, would not judgment go on one note, as matter of course, on default, and the validity of the other be put to the jury?

The justice below might have stricken out so much of defendant’s plea as was disclaimer. That part of it is no plea, no defense, whether in or out, whether true or false. It is mere explanatory surplusage. Refusal to strike it out was so far a matter of discretion as not to be exceptionable, for it did the defendant no harm.

The demurrer is general. If the plea sufficiently states any defense to a specific count or cause of action, not pretending to cover the whole declaration, it is good. If it has any vitality, surplusage does no harm. "A demurrer complains of too little, not too much.” Bean v. Ayers, 67 Maine, 488. The plaintiff was bound to traverse only material facts. He need not notice immaterial ones. The issue of nul disseizin as to half the demanded land was tendered him, and he refused it. The plea is a good defense to that half. None is interposed as to the other half. Exceptions overruled.

Peters, C. J., Walton, Libbey and Foster, JJ., concurred.