Gardiner v. Miles

Archer, C. J., delivered the opinion of this court. The court are satisfied that the first plea which was demurred to, is not to be considered as withdrawn, by the putting in of the subsequent pleas. If put in at the same time with the subsequent pleas, this would be clear. If put in subsequently by way of amendment, such. amendment and filing of pleas cannot be considered either as a waiver of the first plea, or as a withdrawal of the pleas filed previously to the amendment. To the first plea, issue was joined to the country. To the second, there was a demurrer, and joinder in demurrer—then the three successive pleas are each filed as additional pleas, each being filed with the leave of the court, showing thereby that the defendant did not design to withdraw his pleas already [99] filed, but that he still relied upon them. To the 3d and 4th pleas there are demurrers, and joinders in demurrer—and to the fifth plea there is an issue to the country—when the court pronounced their judgment, there were then three issues in law presented by the record for their consideration, and their judgment must be considered as pronounced upon all such issues; and the enquiry will then be, whether the court were right in the judgment pronounced by them in deciding the demurrers in favour of the defendant? It is conceded by the counsel for the defendant, that the third and fourth pleas were bad on general demurrer. But it is insisted that the plea secondly pleaded on general demurrer, is good, and operates as a bar to the plaintiff’s recovery, and of this opinion we are. The action is brought for dower in a tract of land, called 11 Part Bramley,” and the plea after averring that the father of the husband of complainant died seized of said real estate, and that a partition of the same was had, whereby the same was divided into four parts, that lot No. 1 of said real estate was elected to be taken by the husband of the plaintiff, and that a bill was filed by the assignee of the bonds taken for the payment of the proportions of the other heirs, for a sale of the “said real estate,” the plea then avers, that the said “ real estate” was sold free and clear of the claims of all parties to the suit. Now the enquiry is, what real estate is averred to have been sold ? was it only part of the land in which dower was claimed, or was it the whole? The father of the husband it is averred, was seized of the real estate in which dower was claimed, and it is averred that said real estate was sold. This naturally refers to the whole land of which the father of the plaintiff’s husband died seized. When it is said “ the said real estate was sold,” it cannot refer to lot No. 1 of said real estate, for that was only part of the said real estate, nor do the proceedings stated in the plea, lead to the certain conclusion that only part of the land was sold. It might be, that the husband of the plaintiff had acquired the title before the bill was filed to the whole of “ Part Bramley,” and his personal estate being insuffi [100] cient to pay his debts, the whole real estate may have been decreed to have been sold to pay the claim of the complainant, in the bill stated in the plea to have been filed. If the whole land was decreed to have been sold to pay this debt, free from the claims of dower in the plaintiff, and she was a party, she would undoubtedly be barred of her right of dower, unless such decree should be reversed on appeal. But if the plea in this respect be ambiguous, it ought on account of such ambiguity to have been the subject of a special demurrer. 23 Eng. C. L. 438. Whether the Court of Chancery decided correctly or not on the case stated in the plea, is not for us to enquire. If a case is stated which gives jurisdiction to the court, it is all that need be ascertained, and such a case we think is there presented. Nor need we enquire into the existence of a lien in the assignee of the bonds. It is certainly inferentially stated in the plea, that the plaintiff was a party to the bill in Chancery. A person of her name is a party. It is stated that the land was decreed to be sold free from all claim of the parties, and that the defendant purchased the same free from the plaintiff’s claim of dower. Eliza C. Gardiner, the plaintiff, is therefore to be considered a party, and a decree which directs a sale free from all claims she might have in the land, would bar her claim of dower. The court yrere, we think in error, in ruling the demurrer had to the third and fourth pleas, but right in their judgment in relation to the demurrer on the second plea. And as that is conclusive against the plaintiff’s right of recovery, we think the judgment entered for the defendant should be affirmed. JUDGMENT AFFIRMED.