Jenney v. Potts

Mabston, J. Jenny brought ejectment to recover the possession of certain lands. To defeat the plaintiff the defendant, among other things, offered and the same was received in evidence a deed of the premises from the plaintiff to his wife, which deed was dated and executed after the commencement of the action in this case. The court being of opinion that such conveyance operated as a bar, rendered judgment in favor of the defendant. Under the pleadings, in the conclusion arrived at and judgment rendered, we are of opinion the court erred. The plaintiff claiming, and having shown prima facie a title in fee simple to the premises at the time of the commencement of the action, Comp. L., § 6232 had no application to such a case. Aside however from the main question as to the effect of such a conveyance, a preliminary question is raised and insisted upon by counsel, whether such deed was admissible in evidence under the pleadings. It is insisted that a special notice in the nature of a plea puis darrein should have been given. This objection is well taken. If such conveyance furnished any ground of defense, it was one made and arising after issue joined, and was in no way connected with the case by plea or notice, thus coming clearly within the ruling in Buell v. Irwin, 24 Mich., 149. As this case was not argued and no brief was furnished on behalf of the defendant, we prefer not to pass upon the other question at present. The judgment must be reversed with costs and a new trial ordered. The other Justices concurred.