CH. 178. Art. 16. 4 Com D. -Register, abatement must be cases. 1. Ouster by intrusion, is where the tenant of the freehold dies, and before he in remainder or reversion enters, some stranger enters or intrudes in fact into a vacant estate; for if any owner be seized, there can be no intrusion, but the illegal entry is either a trespass or a disseizin, except in 407-Co. cases of chattels real, where the illegal entry is a trespass Lit 277.-3 or a dispossession. The only difference between this intru- Bl Com. 169. sion and abatement, is this, the abatement is always to the 233, 234.-1 prejudice of the heir or devisee; intrusion, to him in remain- Cruise, 14, der or reversion. Intrusion is always immediately consequent upon the termination of the particular estate; an avoided by abatement is always consequent upon a descent or devise of entry or conan estate in fee simple. In the Register, 233, 234, are several tinual claim, forms of writs on intrusions in the per, per and cui, and in the post; and no writ of entry in the post, or beyond these degrees of per, and per and cui, lay at common law. Abate- 2 Cruise, 539. ment and intrusion is on the very same principle; each takes place after the death of the former free holder, and before the subsequent one enters, by a tortious entry of a stranger between them. lands. § 3. 2. Intrusion is also where there cannot, by law, be a Intrusion on disseizin. As where the Commonwealth owns the lands, and the State's one wrongfully enters upon them, and gets possession, claiming them adversely; as the Commonwealth cannot be disseized, this entry cannot be treated as a disseizin, but is treated as an intrusion on the State's land; and hence, the attorneygeneral for the Commonwealth, in the scire facias on information of intrusion, after stating the Commonwealth's title and seizin of the land,-" in its own demesne, and have as yet continued seized thereof, taking the esplees of the same, to the yearly value of $; and ought now to be in the undisturbed possession thereof; nevertheless, J. L. of &c. has since illegally and unjustly intruded himself upon the premises, and disturbed the said Commonwealth in the possession of the same, and yet continues to disturb the said Commonwealth in the possession thereof." In this case J. L., and his co-pro- American prietors entered, claiming the absolute fee simple of the land, Precedents, and totally denying the Commonwealth had any title at all Little's case, to them; yet this entry and claim was not considered as a Cumberland disseizin, but only as an illegal, unjust intrusion on the lands, county. or an illegal disturbance of the Commonwealth in the possession thereof. The plea, in this case made by Parsons and Dane, for the deft. or tenant, was the general issue of not guilty, and deemed the true plea. 307, 308, § 4. And in considering writs of entry and intrusion, it is 5 Mass. R. to be observed, that "a writ of entry will lie only against 352, Higbee the tenant of the freehold, and if he do not disclaim, or v. Rice. CH. 178. Commonwealth v. Pejepscot Proprietors, 7 Mass. R. 399. Not guilty is the general issue in cases of intrusions. plead non-tenure, he admits himself to be tenant of the freehold, by the plea of nul disseizin." § 5. So in this information of intrusion the defts. pleaded the general issue of not guilty, as well as a special plea in bar, that is, an award in the same cause. See Ch. 109, a. 11. As not guilty is the general issue in this class of intrusions, perhaps it is the proper and best general issue in the other class, where a stranger intrudes on the land, on a possession vacant, between the true freeholders as above; but as the word intrusion is technical in both cases, or the charge against the deft., that he did intrude, or that he did illegally intrude himself, is technical, of an ascertained meaning in law, it may be a good issue that meets the charge, for the deft. to say, he did not illegally intrude himself upon said lands in manner and form as the Commonwealth alleges. This meets the gist of the whole charge, as the plea of nul disseizin meets the charge of disseizin. But as the general issue of not guilty, is a good plea in both cases, and gener ally in use, it may be best to plead it. So in our actions of formedon, the general issue has been usually not guilty; as was also in our writs of right till about 1803, at least, in many counties; but since the mise has been joined, as stated in Adam v. Frothingham, in Story's Pleadings, p. 337, 338. As matters of excuse in land actions, as well as others, may be given in evidence on the general issue, as the prac tice is almost universal so to do, it will not be here necessary to consider how these matters may be specially pleaded; however, if a party chooses to plead them specially, there is one general settled rule, that is, to plead them according to the truth of the facts, and the true operation of the law upon them. What these are, will almost universally depend on the particular circumstances of each case. How general and particular estates must be alleged; see Jones v. Whitby, Ch. 125, a. 1. This is a general rule that applies as well to pleas as to declarations. ART. 17. But matters of justification must be pleaded. § 1. Matters of justification as to nusances to, and trespasses on, lands &c., have been already considered, Ch. 69, Ch. 71, Ch. 74, Ch. 172, and Ch. 173; but very few are the matters in justification that must be pleaded in land actions; because in a writ of right there is a particular issue framed, the mise joined on which, as on not guilty, in the action, both parties may, and ought, to give title in evidence, and it is understood of every kind. And as before observed, there is in this highest real action no disseizin charged, as the parties do not proceed to try any disseizin, but the mere right of property, however, the disseizins may have been. In all other actions as to lands &c. a disseizin, or an intrusion, or a dispossession, is charged by the plt. as having been done or committed upon his lands &c. by the deft.; and if he has in fact done or committed such disseizin, intrusion, or dispossession unlawfully, he can have no justification of this act; and if by reason of title and right of entry, both of which may be given in evidence on the general issue, by the deft., he has, in fact, not committed or done any disseizin, intrusion, or dispossession on the plt's. lands, the deft. must be acquitted on the general issue, proving his title and right of entry, on this issue. § 2. However, the deft's. act of entering upon the lands demanded, claiming them as his, the act complained of by the plt., has been in several cases justified by the deft. in a special plea of justification, as lawfully done by him; or in some such pleas as follow. CH. 178. Art. 17. 1797, 1798, § 3. As in this inquest of office, or information of intrusion, Commonbrought by the State against Prescott & al. to recover lands wealth v. granted by it, on conditions, and for breach thereof. The Prescott & al. defts. pleaded double, (this allowed, on objection and argu- Cumberland ment) 1. Condition performed: 2. An after act of the legis- county. lature waiving the breach of condition. Issue on the first, and demurrer to the second, on oyer of the resolve and bringing the whole on the record. It seemed to be the opinion of Parsons and Dane, counsel for the defts., that the performance of the conditions was an essential part of their title, and on which they justified holding the lands against the commonwealth; nor that dispensing with, or waiving the conditions, could be given in evidence on the general issue of not guilty; and so was the opinion of the counsel on the government's part. § 4. So in Kent v. Kent, before stated, a former judgment was specially pleaded in bar, in formedon, and deemed necessary so to be pleaded, as a former judgment in bar usually is. § 5. So in the case above of the Pejepscut Proprietors, a judgment on an award was specially pleaded in bar of the inquest of office, or information of intrusion, brought to recover lands: so in the action of Iven v. Hooper & al. stated in a former chapter, brought to recover mortgaged lands, many special pleas in bar were pleaded in addition to nul disseizin, mostly to shew conditions performed: so in the action to recover lands of Palmer & ux. v. Downer, above stated, the deft. pleaded in bar the alienage, specially, of the plt's. father. CH. 178. 6 Mass. R. 418, Wolcot & al v. Knight. v. Putnam. § 6. In this case, to a writ of entry sur disseizin, the tenant pleaded the plt's. deed, or his ancestor's, conveying the premises to a third person, after the disseizin complained of, in bar. Plt. replied, nothing passed by the deed, and issue thereon found for him. § 7. So in Everenden & al. v. Beaumont, stated Ch. 167, a. 9, to entry sur disseizin, on the plts'. father's seizin, and abatement on his death, by a stranger, defts. pleaded a release from the plts. to them &c. § 8. If in formedon, non devisavit be pleaded, it is a special issue. 5 Mass. R. 438, Dudley v. Sumner; Commonwealth v. Bakerstown Proprietors, cited 11 Mass. R. 202 &c., and in another chapter. § 9. Special pleas to turn the plt's. action, as on an absolute title, into a mortgage. It has ever been a practice in many places, for the mortgagor to give an absolute deed of the lands &c. mortgaged in fact, to the mortgagee, and at the same time to take from him a bond, or covenant, to reconvey the lands &c., on the mortgagor's paying the debt, which together make a mortgage, as stated Ch. 111, 112. Often the mortgagee in fact, not knowing how the mortgagor means to use his bond or covenant, sues on his absolute deed absolutely to recover the lands, and will, of course, do it, unless the mortgagor can by special pleading turn that deed, absolute on the face of it, into a mortgage. To this purpose the Bowers & al. mortgagor pleads specially, as Story's Pleadings, 345, 346. Such pleading is on Massachusetts act of November 4, 1785. But I think the pleadings to the same end may be in a form somewhat different; that is, the deft. in the first instance may plead in bar of the plt's. action, because having in fact but a mortgage title, he declares as on, and for, an absolute title; and when, too, this mortgage title is created by his own bond or covenant, the deft. therefore has a good right to plead, and say, I gave a mortgage of my land, and not an absolute deed and title, as appears by our two deeds, both executed at the same time. This manner of pleading is preferred, because calculated first to settle the main question if a mortgage or not; a question to be settled on the record before the deft. can be heard in equity. The plt. sues on an absolute title, as when he sues on the penalty only of a bond having a condition, but this he does not notice. In this case the pleadings first are formed in order to find if the penalty is forfeited, if not, there is no hearing in equity; but there is if forfeited, and after found to be forfeited, the deft. prays to be heard in equity; or he may, as part of his plea, pray to be so heard. § 10. In several cases it is a question, if the plt. shall have a conditional judgment as in mortgage &c., or judgment for CH. 178. absolute possession. If even the mortgagee sue merely to Art. 18. get possession, he may declare on his seizin and give his deed in evidence, and have judgment for absolute possession; but if he sue to foreclose, he must declare in mortgage, and have the conditional judgment. But if mortgagee in fact, and he declares on an absolute title and for an absolute judgment, the mortgagor or one claiming under him, may by his plea on record, defeat the action, or oblige the mortgagee to take the conditional judgment in mortgage; because the mortgag or &c. by such plea shews the plt. has but a conditional title after condition is broken. But there are cases in which the mortgagee, or one in fact having a conditional title, may declare and recover as on an absolute one; as 1st, where the mortgagee sues to get possession before condition broken, and so at common law, then the three years for foreclosure do not begin to run till after condition broken, and the mortgagee makes known he is in possession for condition broken, and to foreclose. 2. Where the mortgagee or one with conditional title, sues to get possession from one holding the land, no party to the conditional title, neither mortgagor, or one claiming under him; hence, cannot plead this conditional title. 3. Where the mortgagee sues absolutely to get an absolute possession, and as to part of the land demanded, one deft. is no party to the conditional title, and another is; for there cannot be two judgments, one conditional and the other not; in this last case, the deft., party to the conditional title, must tender payment and file his bill in equity, in order to redeem, stating the true title. 15 Mass. R. 486, Partridge & ux. v. Gordon; Lewis v. Babb & al.; Bowers v. Putnam & al. § 11. A third person cannot defend as landlord, in eject- 4 Maule & ment &c., where it appears the tenant in possession, came in Sel. 347. as tenant to the plt's. lessor, and paid to him rent, though under an agreement expired, and where the tenant in possession does not appear to defend, and disclaimed after he paid the rent; for as the tenant could not dispute the title of the lessor, neither can any other as his landlord; and even though such such other person has entered into the landlord's rule. The acts of the parties must prove who is landlord. The tenant should give up his possession to the plt's. lessor, then the deft. if he has title may have his ejectment. The principle of this case applies to any kind of land action, in which the deft. appears to defend as landlord. ART. 13. Cui in vita-dum non compos mentis-dum fuit infra ætatem. §1. There is a small class of actions that may be barely |