Rowell v. Hayden

Rice, J. The case is presented on report and exceptions, also upon questions arising on the pleadings. The defendants severally pleaded the general issue which was joined. They also severally pleaded, in bar, specially, that the demandant ought not further to have and maintain his action, because since the commencement of this action, and during the pendency thereof, to wit, on the 20th day of December, 1852, the said demandant, by his deed, of that date duly executed, acknowledged and recorded, for a valuable consideration in said deed mentioned, to wit, the sum of nine hundred dollars, conveyed the said demanded premises to one Asa G-. Holt, whereby said demandant was wholly divested of all right, title and interest in and to the demanded premises, &c. .To these pleas the demandant demurred generally, in which the defendants joined. In support of the demurrers the demandant contends that the pleas are defective, inasmuch as they do not allege that the deed from him to Holt was delivered. Whether, if this omission were a defect in the pleas, the demandant could avail himself of such defect on general demurrer, may [585] admit of doubt. He should have replied that nothing passed by the deed. Howard v. Chadbourne, 5 Maine, 15; Walcott v. Knights, 6 Mass. 418. But the pleas are not defective. The fact that a deed is recorded is prima facie evidence that it has been delivered. Chess v. Chess, 1 Penn. 32; Jackson v. Perkins, 2 Wend. 308; Gilbert v. N. A. Ins. Co., 23 Wend. 43. But it is further contended, that if the deed is properly pleaded, the defendants cannot avail themselves of it in defence. The writ is dated Dec. 29, 1851. The deed set out in defendants’ plea bears date Dec. 20th, 1852. The pleas were filed, as appears by agreement of demandant’s counsel, Sept. 26, 1854. The rule is, that when matter of defence has arisen after the commencement of the suit, it cannot be pleaded in bar of the action generally, but must, when it has arisen before plea, or continuance, be pleaded as to the further maintenance of the suit; and when it has arisen after issue joined, puis darrein continuance. Heaton v. Lyman, 5 Peters, 224; LeBret v. Papillou, 4 East, 502; Covell v. Weston, 20 Johns. 414; Bank of U. S. v. Merchants' Bank of Baltimore, 7 Gill. 415; Bailey v. March, 2 N. H. 522; Semmes v. Naylor, 12 Gill. & Johns. 361. These pleas appear to have been filed before issue joined, and therefore fall within the principle of the authorities above cited. If, as the demandant suggests, they are to be treated as pleas, puis darrein continuance, the result cannot be changed, because an objection to such a plea, that it was not pleaded in proper time, cannot be taken advantage of on demurrer; it should be on a motion to set aside the plea. Ludlow v. McCrea, 1 Wend. 228. Whether a plea of puis darrein continuance shall be received, after a continuance has intervened, is in the discretion of the Court. Morgan v. Dyer, 10 Johns. 161. If the plaintiff neglect to plead matter which has arisen [586] since the last continuance, at the next term, he cannot claim a right to plead it at a subsequent term. But the Court, in its discretion, may grant leave to plead it nunc pro tunc, and when it thus exercises its discretion, may impose the payment of costs. Stevens v. Thompson, 15 N. H. 410; 1 Chit. Plead. 659. It is in the discretion of the Court.to receive the plea or not, even after more than one continuance has intervened, and this discretion will be governed by circumstances extrinsic, and which cannot appear on the face of the plea. Wilson v. Hamilton, 4 S. & R. 238; Tufts v. Gibbons, 19 Wend. 639; Rangely v. Webster, 11 N. H. 299. That the defendant had by his deed to Holt divested himself of all right, title and interest, in and to the demanded premises, is admitted by the pleadings, as a demurrer admits all the facts which are well pleaded. And that the defendants may avail themselves by proper pleas of the fact, that the demandant has divested himself of all right, title or interest in and to the demanded premises, after action - brought, is well sustained by authorities. Howard v. Chadbourn, 5 Maine, 15 ; Walcott v. Knight, 6 Mass. 418; Bailey v. March, 2 N. H. 522. Under the pleadings, we think it clear that the action cannot be maintained in the name of the demandant. It therefore becomes unnecessary to consider the questions raised by exceptions during the progress of the trial. According to the agreement, the verdict for the demandant under the general issue is to be set aside, and judgment entered for the defendants under their special pleas in bar against the demandants’ right further to maintain the suit.