Wells v. Jackson Iron Manufacturing Co. , 44 N.H. 61 ( 1860 )

Sargent, J.

The plaintiff' claims that the -bounds of Sargent’s Purchase, so called, are not fixed and defined; that there are no monuments at the corners of the same, located and determined, nor any of the lines around it known and marked upon the ground. This fact, however, is denied by the defendants; and the plaintiff moves for leave to furnish evidence to the court to show that the facts are as he claims them to be; and evidence upon this subject was offered. And it is claimed, upon the authority of Orange v. Berry, 24 N. H. 105, that this evidence may be received, and that if the fact is made”out as the plaintiff' claims, the court should sustain the demurrer. It is also claimed that the plea is insufficient, and that no replication can be framed to it so as to raise any issue, or to have a verdict decide any thing in the case. "We do not so understand the case.

When an issue is joined upon a plea, as in this case, it must be settled on the plea as it stands. If the plea is good upon its face, a demurrer will not be sustained; and after joinder in demurrer on a plea it is too late to ask to change the force or effect of the plea by extrinsic evidence. If .the plea is changed or amended it gives the right to amend the replication ; but no facts or proofs are competent here upon the issue raised by this demurrer. The only question here is, Is the plea as it stood when demurred to, sufficient upon its face, or is it necessarily bad and insufficient ? and that can only be determined upon the plea itself. Where a plea appears sufficient on its face, so that a demurrer would not lie, yet there may be such., facts connected with the plea, or with the issue to be tried upon it, as would render it proper, on a motion to reject the plea, to allow evidence to be taken and furnished to the court, and might warrant the court in rejecting the plea when a demurrer could not be sustained.

Orange v. Berry seems at first look to be an anomalous case, where the question raised by the motion to dismiss was settled, not upon the plea as pleaded, but upon the facts proved aliunde; and there it is held that a demurrer was the proper wayT to take advantage, not of the plea, but of the facts admitted outside the plea. But we do not so understand that case. As we understand it, it is not in conflict with the rule we have laid down. In that case there -was a plea like the one in this case, and a motion to reject the plea. The plea there goes upon the assumption that a certain line therein described divides the close described in the-plaintiff’s declaration into two parts, and describes the line by reference, in such a way as that it appeared sufficiently certain. Now the plaintiff did right in that case, as the plea stood, to move to reject it, instead of demurring to it, because there was nothing in the plea itself that was not well enough. But upon his motion to reject the plea for some defect not apparent on its face, but which was to be supplied by proof, certain facts appeared, and were admitted by the defendant; and the facts being thus agreed on by the parties showed clearly that the plea should be rejected. • • •

It was made to appear, or admitted, that the line which was assumed in the defendants’ plea to divide the premises claimed in the plaintiff’s declaration, did not do so, but was the admitted line between the plaintiff and the defendant; and the. only question in fact was, where that line was located. Upon this showing, merely, the motion to reject should have been allowed. But we understand by the opinion in that case (and that is the only construction we can give it and agree to the results there stated), that the admissions which were made were agreed to be considered as added to the plea as first pleaded; in other words, that the plea should be so amended as to include these admitted facts; and the case passed upon as though they had all been stated in the plfea itself. When the plea was thus amended, then the motion to reject became improper, because the plea then showed upon its face a good ground of demurrer.

Orange v. Berry, as we understand it, merely settles that, although, as the plea'at first stood, the motion to reject might have been the proper motion to make, accompanied with leave to furnish evidence of' the facts in the case not appearing in the plea, yet the defendant having admitted certain facts, it was agreed'that the plea should be considered as amended so as to contain such facts, and the case decided accordingly. Whereupon it was properly held that as the plea then stood, as amended, there was a good ground of demurrer disclosed on its face; and, in accordance with the mile in such cases, such defect must be 'taken advantage of by demurrer, and not by motion to reject. The whole opinion in that case is based upon the assumption that the facts admitted by the defendant are incorporated into the plea and into the case, and, being there, it becomes apparent that the plea is insufficient.

In the case before us the declaration seems to be well enough, and the plea also appears sufficient. From the description given there of Sargent’s Purchase, it would seem that the bounds and lines are well fixed, being monuments referred to in other grants and charters, which would be likely ordinarily to be fixed and known as well as any thing. Our presumption, therefore, would be that here were two grants, one under which the plaintiff claims, and another under which the defendants claim ; that* they were both located and marked by fixed and visible boundaries, but that, by some accident or mistake, one of the grants overlapped a space upon the other; and that the question to be settled here was, who should hold this portion of land thus covered by both grants; in other words, which grant was valid. If this was the object of the parties, as would seem most probable from the proceedings, there would be no difficulty in framing a replication so as to raise that issue in such a way as that a verdict should settle the whole ease. There is nothing on tlie face of the plea that necessarily makes it bad, and there are no admissions here made and no amendments to be made to the pleas as they stand, in order to settle the question here raised. The motion to submit evidence must bo denied, as the issue now stands on the demurrer to the plea as pleaded, and that issue can not be changed by proof aliuncle, without the consent of parties. On this issue the motion for leave to submit evidence is denied, and the plea, being good on its face, the demurrer is overruled.

If the plaintiff desires, he can have leave at the trial term to move to reject the plea ; and upon that motion he may have leave to furnish evidence; and if he makes out a proper case the plea may be rejected, and the defendant have leave to plead anew.