Hilliker v. Simpson

Whitehouse, J. This is a writ of entry whereby the plaintiff seeks to recover an undivided half of the homestead farm of George Simpson, which, at his death on September '6, 1895, descended to the plaintiff and defendant as his heirs at law, subject to the payment of debts, a'nd to the widow’s dower. The writ bears date August 3, 1897, and was duly entered at the October — 600 — term, 1897, of the Supreme Judicial Court for Penobscot county, to which it was made returnable. At the return term the defendant appeared and filed his plea of the general issue with a brief statement disclaiming any right, title or interest in the plaintiff’s undivided half of the property, and averring that he was in possession of the whole of the premises only as a tenant in common with the plaintiff, as he had a lawful right to be. At the following January term of the court, the defendant also filed a special plea in bar of the further prosecution of the suit. In this plea, puis darrein continuance, the defendant avers that on the third day of November, 1897, after the filing of the general issue and brief statement above named, and on the day of the last continuance of the cause, at the October term of the court, the' administrator on the estate of George Simpson, by virtue of a license therefor, granted by the probate court of Penobscot county, at the 'preceding May term thereof, sold and conveyed to the defendant, subject to the widow’s dower, the entire homestead described in the plaintiff’s writ, by deed duly executed and delivered on that day, in consideration of the sum of $850; and that thereby the plaintiff was'divested of her title to one undivided half of the property described in the writ, and that the defendant thereby acquired title to the whole property and the right to the exclusive possession and occupancy of it. It is a well-settled rule of pleading that a plea puis darrein continuance operates as an abandonment of all former pleas, on which no proceedings are afterwards had. After the filing of such a plea, in contemplation of law all previous pleas are stricken from the record, and everything is confessed except the matter contested by this plea. McKeen v. Parker, 51 Maine, 389 ; Kimball v. Huntington, 10 Wend. 675, (25 Am. Dec. 590); 1 Chitty on Plead. 690; Stephen on Plead. (1867) 66. The plaintiff’s counsel thereupon filed a general demurrer to the defendant’s plea in this case. The presiding judge overruled the demurrer, and the case comes to this court on exceptions to this ruling. — 601 — In support of the exceptions the plaintiff contends that the plea of the defendant, puis darreijn continuance, is bad in form for fifteen different reasons specified in argument. I. It is undoubtedly true that, under the rules of special pleading, established in the earlier stages of the common law, great technical exactness and certainty were required in both the form and substance of such a plea. But after a careful examination of the defendant’s plea in this case, it seems to fulfill all the requirements indicated by the forms approved for a century past, and to obviate all the objections which have been held fatal in any of the cases to which the attention of the court has been called. It sets out with clearness and precision the facts happening after the last continuance, or the filing of the former plea, upon which the defendant relies, and definitely shows the time and place, when and where, the defense arose. It recites, with detailed accuracy the facts respecting the last continuance of the cause and the time of filing the plea, and specifies the time and place of the execution and delivery of the deed from the administrator to the defendant, and the fact that it was recorded and the time and place of the record. It states that the administrator was duly and legally appointed and qualified to act in that capacity, and that the license for the sale of this property was legally granted by the court of probate in the county of Penobscot having jurisdiction of the matter; that the sale and conveyance were legally made by the administrator in pursuance of the terms of said license and in accordance with the requirements of law, and that the defendant was a purchaser in good faith for a valuable consideration; that the plaintiff thereby became divested of all her right, and title to said real estate, and that the defendant thereby acquired title to the whole of it in fee simple. It was not incumbent upon the pleader to recite the proceedings of the probate court with any greater particularity, nor to state the evidence upon which that court based its conclusions of fact respecting the conditions of the estate and the duty of granting a license to sell the realty. It is accordingly the opinion of this court that the plaintiff’s objections to the form of the plea ought not to prevail. — 602 — II. But the plaintiff earnestly contends further, that if not defective in form, the jilea in question must be held bad in substance on the ground that the prosecution of her suit cannot be barred by a title acquired by the defendant after the commencement of the suit, unless obtained through the act or consent of the plaintiff. It must be admitted that the learned counsel for the plaintiff was enabled to present numerous authorities from other jurisdictions which would ordinarily be entitled to great respect, as well as some decisions in the earlier history of this court, which tend strongly tó support this contention. But in the more recent case of Leavitt v. School District, 78 Maine, 574, this court established the rule that if, pending a real action, the title to the land and the right of possession became vested in the defendant by operation of law without the concurrence of the plaintiff, this fact may be pleaded in bar of the further prosecution of the suit. In that case all of the leading authorities now cited by the counsel for the plaintiff were presented to the court in the argument of counsel, including the strikingly similar case of Hooper v. Bridgewater, 102 Mass. 512, in which the opposite view was adopted. But in a course of independent reasoning this court reached the conclusion above stated upon grounds deemed more in harmony with the obvious purpose of judicial proceedings, and more practical and satisfactory than those given for a contrary rule in the precedents cited. We find no occasion to question the soundness of that decision. “Why,” said the court, “should the plaintiff recover the possession of land after his right to the. possession is extinguished, and it is certain that he cannot hold it if it is given to him ? And why should the defendant be deprived of the possession after he has in a lawful manner become the owner of the land, and entitled to the possession of it? -It is believed no good reason can be given. “It is perfectly well settled that such a defense .... must be specially pleaded. And it ... can be pleaded only in bar of’the further prosecution of the suit. The effect then is not to defeat the suit ab initio, but to stay its further proseen — 603 — tion; in wbicb cáse the plaintiff will recover' bis costs up to the time of tbe filing of tbe plea, and the defendant will recover bis costs incurred subsequently. In one sense, such a plea may be said to divide tbe suit into two actions, in the first of which tbe the plaintiff is tbe prevailing party and entitled to costs, and in the second of wbicb tbe defendant is tbe prevailing party and entitled to costs. This result avoids all supposed hardships, and deals out to both parties even-handed justice . . . .” These considerations are peculiarly applicable and the absence of any hardships to the plaintiff especially marked in the case at bar; for here tbe plaintiff received her title to one undivided half of the property under a statute which especially declares the descent of real estate to be subject to tbe payment of debts, and she presumptively knew that a license for tbe sale of tbe homestead in question bad been obtained by tbe administrator more than two months before tbe commencement of her action. There is therefore no temptation to depreciate tbe just value of tbe maxim, stare decisis et non quieta movere. III. Finally, however, it is suggested that the defendant’s plea is inadequate as tbe basis of a complete defense, because it fails to make any response to tbe claim in tbe plaintiff’s writ to recover damages for tbe rents and profits of tbe demanded premises. But tbe right to recover damages for rents and profits is a mere incident to tbe right to tbe land itself. Under our statute it is only when tbe plaintiff “recovers judgment in a writ of entry” that “be may therein recover damages for tbe rents and profits of the premises from the time when bis title accrued.” Rev. Stat. cb. 104. § 11. Brigham v. Hunt, 152 Mass. 257. According to the averments in tbe defendant’s plea tbe plaintiff based her action on a defeasible title, and pending tbe action was by operation of law divested of her title and barred of the further prosecution of her suit. Her right to recover rents and profits in this action was thus defeated by tbe failure of the suit itself. Whether the character of tbe defendant’s occupation was such as to entitle tbe plaintiff to recover her proportion of tbe income — 604 — of the premises by virtue of Rev. Stat. ch. 95, § 20, or otherwise, is a question not now before the court. It is the opinion of the court that, upon the pleadings now before the court in the case at bar, the judgment must be against the further maintenance of the plaintiff’s suit. Exceptions overruled.