Mason v. Peters

The opinion of the Court ivas pronounced by Hutchinson, C. J. This is an action of ejectment, to whíóh the defendant has pleaded in bar, that the plaintiff’s title is by vir [104] tue of a certain mortgage deed, given to secure the payment of a certain note therein described : and that, after this note had become payable, the plaintiff received a part payment, and agreed, in consideration thereof, to wait another year for the remainder ; and that this year had not expired, when the action was commenced. To this plea the plaintiff has demurred. We consider the promise, set up in this plea, to be not obligatory upon the plaintiff. The law requires, that the consideration of a promise should be something, which is a benefit to the prom-issor, or an injury to the promissee. In this case, the defendant, after his debt was matured, and ought all to have been paid by him, paid a part of it, twenty five dollars, which he now claims as a consideration for the promise to wait another year for the residue. This, in a legal sense, is neither a benefit to the plaintiffs nor an injury to the defendant j who ought to have done all this, and more too, without any promise from the plaintiff. Again, if there were a good and valuable consideration for the promise, it would be no bar to the present action, as here pleaded. It might be the foundation for an action of assumpsit to recover the actual damage for the breach of the contract, and nothing more. A covenant never to sue creates a bar ; but a covenant not to sue for a given time is no bar ; it is only a ground for the recovery of damages. This principle is applied in the books to all actions, real and personal. It applies with stronger force to our action of ejectment. Our statutes require, that the title to lands should appear of record. They also render a recovery in an action of ejectment, conclusive with regard to title, between the parties to the suit, and those claiming under the parties. Under such circumstances, it would be going too far, to admit a parol agreement, postponing the payment of the mortgage money, to postpone also the right of action for the mortgaged premises. If any thing could be made of the facts here presented, it must be done by treating them as amounting to a lease of the premises for a year. If the facts are pleaded at all, they should be pleaded according to their operation in law. This plea is rather declaring upon the evidence. The plaintiff could not maintain ejectment for the premises, during a period in whiuh they had leased the premises, even by parol lease ; for such lease would give a right to the possession ; and the plaintiff could not treat such possession as a trespass. And, further, a parol lease for a year is not required, by statute, to be in writing. Whether the facts, on which the defendant relies, would support the allegation [105] of a lease for a year, we do not, we need not, decide ; but unless they amount to that, they make no defence at all. The plea in bar is insufficient, and judgement is rendered, that the plaintiff recover.