Dewey v. Brown

[239] The opinion of the Court was drawn up by Parker C. J It was decided in the case of Otis v. Warren, 14 Mass. R. 239, after a review of the authorities, that non-tenure may be pleaded in bar as well as in abatement. The reasons given in support of that decision apply as well to a special as to a general non-tenure, and no authority has been shown to justify the distinction taken in the argument between the two species of non-tenure. In either case the plea goes to defeat the action, and no new writ can be given in the plea, because the facts of the plea show that no action can be maintained against the tenant to the writ, he not being tenant of the freehold and therefore not liable on a writ of entry.1 We do not think the cause of demurrer secondly assigned is sufficient to avoid the plea, viz. that it is not alleged in the plea of what estate Holcomb, under whom Brown is possessed as tenant at will, was seised. The allegation that he was seised necessarily imports at least a freehold estate, and that is sufficient to show that Holcomb is the proper person to be sued in a writ of entry. The tenant may not know of what estate his landlord is seised. Plea adjudged good. Footnotes [1] See Keith v. Swan, 11 Mass. R. (Rand's ed.) 217, n. a; Stearns on Real Actions, (2d ed.) 193