Roberts v. Dame

There is no ground in this case for entering judgment for the plaintiff notwithstanding the verdict. *229Where a plea confesses the action, and does not sufficiently avoid it, judgment is given on the confession, without regard to a verdict for the defendant. 2 Tidd's Pr. 828; 2 Ld. Raym. 924, Staples vs. Heydon; 1 Salk. 173: 1 Strange 394, Rex vs. Phillips; Willes 364, Broadbent vs. Wilks; 1 Wils. 65, S. C. in Error; Cro. Eliz. 214, Lucy vs. Reynolds; Carth. 370, Jones vs. Bodinner.

The plea in this case, certainly, does not confess the action without avoiding it. It covers the entry, and seems to answer the whole declaration. And the verdict finds all the matter put in issue. If there is any informality in the plea, the plaintiff should have demurred specially. Defects of form are cured by a verdict, or by an answer of the adverse party to the merits.

But the instructions to the jury, that if the defendants had proved Caleb Dame to be a tenant in common of the premises, that was sufficient to maintain the issue, were erroneous. This fact, even if it might have furnished a defence, was not admissible under these pleadings.

Trespass in general does not lie for one tenant in common against another. 1 Chitty’s Pl. 207. But it may be supported in certain cases. As where one tenant in common of a chattel destroys it, or sells the entire property. So if one tenant in common of land ousts his co-tenant, trespass lies for the mesne profits. See cases cited 9 N. H. Rep. 511, Odiorne vs. Lyford.

If the plaintiff and Caleb Dame were tenants in common of the land, and the defendants did no more than Caleb Dame might lawfully do, he might have maintained his defence under the general issue. 1 Salk. 4, Haywood vs. Davies; 1 Chitty's Pl. 491, 494. And James Dame could have justified as his servant.

If they exceeded the right of a tenant in common, by destroying the fences and other property, perhaps they might, upon the same pleadings, have justified the entry, and thereby have defended themselves for what was done under it. *230Whether one tenant in common can support trespass quare clausum for an injury to real property owned in common, after a lawful entry, may admit of question. 16 Mass. 4, Keay vs. Goodwin; 8 Pick. R. 175.

But we are not required to pass upon any question of that character, on the pleadings before us. The defendants pleaded that the close was the close, soil and freehold of Caleb Dame. The title thus set up in Caleb Dame is not that of a tenancy in common with the plaintiff. The plea imports a title to the close adverse to that set up by the plaintiff. It must be understood as an allegation of sole title as against the plaintiff. The replication reaffirms the allegation of the declaration that it is the close of the plaintiff, with a formal denial of the title set up by Caleb Dame, and the issue is whether he is the owner. To maintain this it is not sufficient to show that he is a tenant in common with the plaintiff. 7 Cowen's R. 230, Erwin vs. Olmstead; 4 Johns. R. 159. If judgment should be rendered on this verdict, it would be evidence to show a title in C. Dame, adverse to the plaintiff, at the time of the entry, in another action between these parties.

For these reasons there must be a

Nexo trial.