McFarlane v. Ray

Cooley J. At the common law, where the defendant pleads liberum tenementum to a declaration in trespass quare clausum, if the declaration does not contain a particular description of the premises, the plaintiff is always liable to be defeated by the defendant showing title in himself to any parcel of land which would come within the general description given; that is to say, which lies within the township named. The declaration in the present case was of this general character, and the defendants had annexed to their plea of the general issue, a notice of title in Frederick Ray; thus presenting by the record the same issue, so far as this notice is concerned, which would be presented by the plea of liberum tenementum at the common law. The Circuit Court ruled, that under this notice the defense was established by proof of title in Frederick Ray to any parcel of land in the township; and the first error assigned is upon this ruling. At the common law the plaintiff might avoid this result by new assignment; that is, by setting forth in his replication to the plea a description of his own premises by metes and bounds, or other particular description; and the issue taken upon this replication would confine the proof to the parcel of land thus described. — 1 Chit. Pl. 606, and cases cited: Ellice v. Boyer, 8 Wend. 503. Our statute—Comp. L. § 4176, et seq. —abolishes special pleas, and requires the defendant, in order to avail himself of any matter of defense which, according to the former practice, was required to be pleaded specially, or of which a special notice was required to be given, to annex [469] to Ms plea of the general issue a notice to the plaintiff, briefly stating the nature of such defense. To such a notice there can be no replication, and consequently there can be no new assignment, but the plaintiff goes to trial upon the declaration, plea and notice. But the plaintiff contends that under our practice he is entitled to present, by his proofs, any matter in reply to the special notice of defense which might formerly have been replied and proved under replication. This is true as a general rule; but whether it can be done in a case requiring a new assignment, and where the replication in fact takes the place of the declaration, is a question quite distinct from that presented in other cases. It was always at the option of the plaintiff whether he would declare .generally, or set forth a particular description of the premises. If he did the former, and the defendant interposed the general issue only, the latter was always liable to be surprised by proof of a different transaction from that he sup. posed was complained of, since prqof of an entry on any parcel of land in the township, in the plaintiffs’s possession, would be within the declaration. One object of the plea of liberum tenementum in such a case was to compel the plaintiff, by giving a specific description of the land, to confine his cause of complaint, and consequently his proofs, to a specified parcel. We do not think our statute, in abolishing special pleadings, designed to deprive the parties of substantial rights, but rather to simplify the proceedings, and do away with a system which, in the hands of skillful pleaders, was sometimes made to defeat justice. But if its effect is to enable the plaintiff to recover for a cause of action for which he could not have recovered at the common law, upon an issue precisely the same in substance, it is evident that the statute has gone beyond its purpose of simplifying proceedings and abolishing technicalities, and has conferred upon the plaintiff the power to surprise the defendant by proof of a cause of action which he .had not anticipated, and which he has no means of com [470] pelling the plaintiff to point out specifically by the pleadings. We do not think we can give the statute this construction. The parties go to trial upon the record which they have made up, and no evidence is admissible under it which would not have been admissible under a record precisely similar in substance before the statute. The question presented by this special notice is, whether the defendant, Frederick Ray, is the owner of any parcel of land in the township of Erin; and ownership in the plaintiff of any other parcel is foreign to the issue which the notice presents. If the plaintiff proposes to raise that question, he must in accordance with general rules, put his pleadings in proper form for the purpose. There is no mode under our statute in which the plaintiff, who has at first declared generally, can obtain the benefit of a new assignment, except by amending his declaration. This, where the suit is originally brought in the Circuit Court, he may do as a matter of right,— Circuit Court Rule 35 —but where the action is brought before a justice of the peace, and plea of title is interposed and bond given, the justice is required by statute “ thereupon, without further proceeding,” to certify the cause to the Circuit Court, and does not appear to possess any power to allow amendments.— Comp. L. § 3729 to 3734. The statute makes the plea, notice and bond, terminate his jurisdiction of the case; and as the statute also provides that, in the Circuit Court the plaintiff shall be per-, mitted to declare or to give evidence only for the same cause of action whereon he relied before the justice, it would not seem to be in the power of that Court to allow him to so amend his declaration as to describe his premises by metes and bounds, if the result would be to cut the defendant off from a defense which would have been available and complete on the pleadings as they stood before the justice. — Tuthill v. Clark, 11 Wend. 642. While, therefore, the plaintiff still has the option to declare in general form as before, yet as our practice affords him no opportunity for new assignment, he is apprised at the outset [471] that at his peril he must present to the justice such a declaration as will enable him, whatever may be the defense, to go to trial upon his real matter of grievance; though we have no doubt of the power of the Circuit Court to allow any amendments that do not affect substantial rights. But whatever the record is, the parties must try their rights upon it, and not upon some other issue, only brought into the case by the evidence, and variant from that which the record presents. We are also of opinion that the Court was correct in admitting proof of the deed to Frederick Bay, in connection with evidence of possession and claim of title under it, without requiring him first to go back to the source of title and trace it from thence, to his grantor. A party seeking to show title may commence at either end of the chain at his option; and it does not appear from the bill of exceptions that a complete title was not made out. But possession and claim of title under a deed which purports to convey it, is prima facie evidence of title as against one who shows no right in himself.— Jayne v. Price, 5 Taunt. 326; Livingston v. Peru Iron Co., 9 Wend. 520; People v. Van Nostrand, 9 Id. 50; People v. Leonard, 11 Johns. 504; Day v. Alverson, 9 Wend. 223; Ricard v. Williams, 7 Wheat. 59. The judgment of the Circuit Court must be affirmed, with costs. Campbell and Cheistiancy JJ. concurred. Martin Ch. J. did not sit.