Kent v. Kent

A judgment upon a formedon in the descender, that the tenant recover his costs, is a good bar to a writ of entry sur disseisin for the same lands brought by the same demandant against the son and heir of the tenant in the first action.

This was a writ of entry sur disseisin in the per, brought in the county of Essex, where it was argued before Sedgwick, Sewall, and Parker, Justices, at the last November term, by Dane and Jackson for the demandant, and by Livermore and Prescott for the tenant, and continued for judgment to be given here as of that term. The writ demands one moiety of a farm called Kent’s Island, “ into which the said Paul hath no entry but by Joseph Kent, who demised the same to him, and thereof unjustly disseised the said Stephen.” The count is special, alleging that Richard Kent, being seised in fee of the demanded premises, on the sixth day of May, A. D. 1740, made his last will, which has been duly f * 889 ] proved, approved, and allowed ; and after directing therein that three fourths of the farm should be leased by his executors until the last day of March, A. D. 1747, and the profits thereof applied to the maintenance of his minor children, —and after bequeathing to his daughters, Mary, Elizabeth, and Sarah, £133 6s. 8d. each, and also directing that his executors should lease the same three fourths of the farm after the last day of March, 1747, until the legacies aforesaid should be paid from the profits, — he devised the whole of the same farm, &c., called Kent’s Island, (the demanded premises being a moiety,) to his son Richard, father of the demandant, in the following manner, viz.: that he should possess the one fourth from the death of the testator until the said legacies should be paid, and immediately after the other three fourths, in fee tail, — and on the tenth day of the same May died so seised; that after the payment of the legacies charged upon the land, and within twenty years of the death of the devisor, Richard, the son, entered, and died seised of the premises on the 12th day of May, A. D. 1760 ; that from him the right of the premises, by form of the gift aforesaid, descended to the demandant, the said Richard’s eldest surviving son, and heir; that the demandant, on the first day of May, A. D. 1775, and within thirty years before the commencement of this suit, entered into the demanded premises and became seised thereof in fee tail ; and that Joseph Kent (father of the tenant) disseised him thereof, and demised the same to the tenant. To this declaration the tenant pleads, 1, non d.isseisivit; 2, that the demandant is not the eldest son of the said Richard. On these two pleas issues were joined. The 3d plea states that the demandant, on the 28th day of March, A. D. 1770, at the Inferior Court of Common Pleas, impleaded Joseph Kent, the tenant’s father, in a plea of ejectment for the same land. The plea sets forth the former declaration, which states the same will and devise as the present, the death of the testator at the same time, and the payment of the legacies to the daughters, and concludes in these words : “ And Richard Kent, son of the testator, and father of the said Stephen, by force of the will aforesaid and devise therein, and form of * the [ * 340 ] gift aforesaid, after the year of our Lord 1747, and within twenty years last past, in the reign of our royal predecessor George the Second, at said Newbury, entered on the whole of the farm, messuages, and appurtenances, aforesaid, taking the profits, &c., and so became seised thereof in fee tail, and on the twelfth day of May, A. D. 1760, at said Newbury, died so seised thereof; and from him ” (Richard, the devisor’s son,) “ the right of the whole farm, messuage, and appurtenances, aforesaid, by form of the gift aforesaid, hath descended to him, the said Stephen, the said Richard’s then eldest surviving son, and heir of his body, who is more than twenty-one years of age ; and the said Stephen, by force of the will aforesaid, and by form of the gift aforesaid, as eldest son and heir male of the said Richard, ought to be in the quiet possession of the whole of the farm, messuage, and appurtenances, as aforesaid; but the said Joseph hath illegally entered and intruded into a moiety of the same, and ejected the said Stephen, and unjustly withholds the possession thereof from him, the said Stephen, to the damage,” &c. The plea then alleges that, upon not guilt) pleaded, there was a judgment of the Inferior Court in favor of the defendant for costs : it then states an appeal, by the plaintiff, from the judgment of that court to the Superior' Court of Judicature. The tenor of the judgment of the Superior Court is then inserted in the plea, which, after stating the appearance of the parties in that court, proceeds thus : “ The case, after a full hearing, was committed to a jury, sworn according to law to try the same, w'ho returned their verdict therein upon oath, that is to say, they find for the appellee costs. It is therefore considered by the court that the said Joseph Kent do recover against the said Stephen Kent costs taxed at,” _ support of his present action, and is the only fact prima facie necessary to be proved on the general issue. But even if it were true that the whole count in this action is material, and must be proved on the’trial, there is one material fact alleged here, that was not alleged in the former, — that is, the entry of Richard, the son, within twenty years after his title accrued And if there is any one material fact alleged here, that was not alleged in the former suit, it cannot be said that the same evidence will support both actions, and the demandant has a right to a trial of that new fact. As to the fourth cause of demurrer, part of the objection is now removed by the amendment, the tenant now calling himself “ son ’ and heir; but the other part, viz., not showing of what estate Joseph was seised, it is apprehended would be fatal on general [ *346 ] demurrer, but much more when it is assigned as a* cause of demurrer. The rule is that, when a party pleads that he was seised, he ought to allege of what estate seised. (11) Corrvyns cites Saunders vs. Hussey, (12) where this fault was held fatal on general demurrer, though that was in an avowry, which is in nature of a declaration, where less, certainty is required than in a bar. (13) No precedent can be found, when the seisin is material, where it is not alleged of what estate. And here it is certainly material, because it is necessary in order to show the privity between Joseph and Paul; and if there is no privity, the former judgment is no bar. If it is admitted that there was such a former judgment, and that it was perfectly legal and conclusive, yet if the present tenant was not party or privy to it, it cannot avail in his defence. This point then, being material, is of course traversable, and ought to have been so pleaded that an apt and certain issue could be taken upon it. If he had pleaded that Joseph was seised in fee simple, and that the land descended to him as son and heir, the demandant might have replied that he was not so seised, or perhaps that Joseph left other children, and so Paul was not strictly “ his heir.” If he said in fee tail, and that he was heir in tail, the demandant might have traversed either of those facts. But if he had traversed this seisin of an estate of inheritance,” he could not have foreseen whether the tenant would undertake to prove an estate in fee, in tail, or pur outer vie, and could not have known how to prepare or apply his evidence, and the jury would not have had a “ single certain point ” to decide. But, further, it is not alleged that Joseph died seised of this estate • and if not, the land could not descend to his son. The fifth cause of demurrer is founded on the principle universally acknowledged, that no party can plead a judgment in his favor, unless it could have been used against him. For aught that appears in this plea, the tenant may now claim and hold this land under another title than that derived as heir of Joseph, in ■yhich case the demandant could not have availed * him- [ * 347 ] self of this judgment against the tenant. And this being essential to the sufficiency of his plea, ought to have been shown expressly and with certainty. The sixth cause of demurrer is substantially included in the second, and will be governed by the principles and authorities there cited. As to the seventh cause, every bar ought to be sufficient, precise, and certain. Now, if every fact alleged in this plea be admitted, it would not follow that the demandant ought to be barred; for he might have acquired another title since the former judgment, and a title perhaps older and better than either party then had. It is no answer to say that he might reply this; for the point, being essential to the sufficiency of the bar, ought to have been expressly averred in the plea.