
    
      Lawrence P. Hext v. Wiley P. Jarrell.
    
    In Trespass quare dmswm fregit, the pleas of the general issue, and of liberum tenement/um, may be pleaded together.
    Where the general issue and libermu tanemenbmu are both pleaded, tire trespass, which libervm Ienementum, if pleaded alone, would have admitted, is denied by Hue general issue, and must be proved by the party who affirms it.
    
      Before Mr. Justice O’Neall, at Barnwell, Fall Term, 1847.
    This was an action of trespass, quare clausum fregit, to which the defendant had pleaded the general issue and libe-rum Ienementum. At the trial the defendant moved to withdraw the plea of liberum Ienementum. The Circuit Judge thought the application too late, and refused it.
    The evidence was, that the plaintiff was clearing within the lines to which he claimed; the defendant went to his negroes, and stopped them, and told them he wished to see their master — he was making his clearing too near to his house. This was the trespass proved. The title to the land was in the plaintiff — unless, under a deed from Daniel Bordeaux to Daniel Miller and Jane his wife, the wife of the defendant was entitled to a life estate.
    That deed recites that a covenant had been entered into by Daniel Bordeaux, in favor of Jane McLewrath; that notwithstanding a sale, under execution, of the land of her late husband, Robert McLewrath, the said Jane shall not be divested of, “ but shall continue to enjoy, during her natural life, quiet and peaceable possession of the plantation on which she now resides, on the east side of said stream,” (the Lower Three Runs,) “together with the house, out-houses and appurtenances tnereunto belonging, as also the use of as much land on the east side of said stream, during her natural life, as she may for her own individual purpose have occasion to cultivate.” The deed then goes on to enlarge the covenant thus recited, as follows: “that the use, possession, occupation and enjoyment of the premises aforesaid,” &c. “shall not be limited to the lifetime of the said Jane, as the deed sets forth,' but that such use, possession, occupancy, and enjoyment thereof shall be extended beyond the natural life of the said Jane to the lifetime of the children of the said Jane by her former husband, Robert McLewrath, (deceased) Margaret Thomson, widow, Elizabeth, John, Polly, and Charlotte McLewrath, as also to the children of the said Jane by her present husband, Daniel Miller, namely, Cornelia and Maria Miller, so long as such children or either of them shall survive, and collectively or individually shall choose to remain in the occupancy, enjoyment, and possession of the premises aforesaid, after the decease of the said Jane, with as much land adjoining to the present improved plantation, and buildings, fields, and settlement, as he, she, or they at any time hereafter may wish to clear and cultivate, in addition to the present clearing, for his, her, or their own planting and cultivating, either collectively or individually. But it is not understood, nor is it the intent and meaning of these presents, that the extension granted by this agreement, beyond the natural life of the- said Jane, shall go further than what relates to the plantation, house, and out-houses, and other improvements on the said plantation, on the east side of the stream of the Lower Three Runs, with as much land adjoining to the present settlement as the children of the said Jane by her former husband, Robert McLewrath, (deceased) as also by her present husband, Daniel'Miller, during their and each of their respective lifetimes, may have occasion to occupy for cultivation, with as much timber for plantation purposes as may be necessary. And to enjoy the privilege of grinding at the Grist Mill,” &c.
    The land in dispute, with that west of the Three Runs, was sold by the Sheriff of Barnwell as the property of Daniel Bordeaux, an'd purchased by Angus Patterson, Esq. There was no dispute about his title, further than the burden created by the covenant. The widow of Robert McLewrath is dead. The defendant’s wife, her youngest child by Miller, is the only one of her children now on the land. The settlement at the execution of the covenant is half a mile from the present settlement of the defendant. The defendant, Jarrell, applied to Mr. Patterson to buy the fee, in part, of the land; he told him to lay off as much as he wanted. He accordingly laid off about 300 acres,, including the old and present settlement, and obtained from Mr. Patterson, at a small price, a release of his interest. The residue of the land lying east of the Three Runs, Mr. Patterson conveyed to the plaintiff, informing him of the claim of the defendants, if any they have.
    Mrs. Jarrell received from her mother’s estate a negro woman and two children. For her husband, with that force and its natural increase, the Circuit Judge thought the land now in their possession, and adjoining the old settlement, was abundant both for cultivation and timber for plantation purposes; this he, however, left to the jury, and they were told if they were satisfied that the defendants had land enough for the purposes mentioned in the deed, he thought the defendants had no right to disturb the plaintiff in the enjoyment of the land in his possession. They were also' told that the plea of liberum tenementum was an admission of the trespass. The extent of it as proved, and the amount of damages, was for them. They found for the plaintiff $ 15 damages.
    The defendant appealed, and moved the Court of Appeals for a new trial, on the following grounds:
    1. Because the defendant, having pleaded the general issue and liberum tenementum,• had a right, upon the case being called for trial, to withdraw his plea of liberum tenementum, and go to trial on the other plea, and that his Honor erred in refusing the defendant’s motion to that effect, unless the plaintiff would consent.
    2. Because there was not sufficient evidence of a trespass committed by the defendant.
    3. Because the plaintiff did not prove a legal title in himself to the’ locus in quo.
    
    4. Because his Honor erred in charging the jury that the quantity of land to which the defendant was entitled, was limited and restrained by the circumstances and condition of his wife at the time of her mother’s death, and was not to be extended or increased by her marriage, or the gradual improvement of the condition of herself and husband afterwards.
    5. Because his Honor erred in charging the jury that the defendant, having pleaded liberum tenementum, the plaintiff was entitled to recover, unless the defendant had a perfect title to the locus in quo, whether the defendant had committed any trespass there or not.
    6.- Because it is submitted that the defendant, in right of his wife, has a life estate, under the deed of Daniel Bordeaux, to the whole of the land described in that deed.
    7. Because the verdict is contrary to law and evidence.
    Bauskett, for the motion.
    Bellinger, contra.
    
   Wardlaw, J.

delivered the opinion of the Court.

The decision of the motion made in this case, requires us to consider only the 5th ground of appeal. The defendant had pleaded the general issue and liberum tenementum. The Circuit Judge held that the latter plea admitted the fact of trespass, so that if under it the defendant failed to show a title, the plaintiff was of course entitled to recover something, and the jury, assuming the fact of trespass, could enquire only concerning the damages.

If liberum tenementum had been the only plea, the trespass would have been admitted (2 McC. 226): and the defendant would have had the right to begin and reply (1 N. and McC. 356). We permit the defence of title to be made tinder the general issue in trespass quare clausum fregit, (Rice’s Rep. 64; 1 Strob. 313,) and perhaps this right is the only advantage which a defendant can gain by pleading liberum tenementum; this he loses when he adds the general issire (3 Chit. Gen. Prac. 874). But as the addition of the general issue thus takes an advantage from the defendant, so it is effective to impose a burden upon the plaintiff. That which liberum tenementum, if pleaded singly, would have admitted, is denied by the general issue, and must be established by the party who affirms.

The question whether the two pleas were too inconsistent to stand together, was proper for consideration when the leave to plead double was granted: but grant of such leave may not restrain the subsequent exercise of discretion by the Court as to the rights which the defendant shall have under his pleas, and considering the question now, this Court is of opinion that under the Stat. 4 Anne, c. 16, these pleas may be allowed.to stand together.

In granting the leave contemplated by that statute, it was formerly the practice of the Common Pleas to disallow some pleas which were inconsistent to be pleaded together: the practice of the King’s Bench being more loose (see 1 Sell. Pr. 299). But in modem practice, as many grounds of defence as may be thought necessary may be pleaded together, although they may appear to be contradictory or inconsistent. (1 Steph. Plead. 275; 1 Chit. PL 542; 3 Chit. Gen. Prac. 735.) The exceptions recognized are' — 1. That matters requiring different trials cannot be pleaded together, under which exception difficulty (not felt in our practice) has been sometimes felt in allowing mil tiel record to be pleaded with other pleas ; 2. That tender cannot be pleaded with the general issue, the former containing an express admission on the record of the liability, which the latter denies; 3. Some special instances concerning the plea of alien enemy, actions where the king is a party, actions on penal statutes, and writs of error. Under the new practice introduced into the Courts of Westminster since the accession of William the fourth, inconsistency of pleas is not at all regarded, (3 Dowl. 564) but the object of those Courts in interfering with pleas is usually to prevent the same defence being pleaded in different forms, (3 Dowl. 133): although now, as formerly, the discretion of the Court will,» under special circumstances, be exercised to prevent unjust embarrassment by different pleas, (13 East, 255; 3 Bing. 635; 4 Bing. 525).

In our practice non assumpsit and the statute of limitations, non est factum and infancy, not guilty and justification in slander, general issue and license in trespass, are amongst many other familiar instances which might be mentioned, of inconsistent pleas allowed to stand together. No reason is perceived why justification by freehold title should, in this respect, be distinguished from other justification in trespass quare clausum fregit.

The defence specially pleaded by the plea of liberum tene-mentum may, as we said before, be shown under the general issue in pur practice — and although older cases raised doubts on the subject, the case of Doold v. Kiffin, 7 Term, 350, shows that the same might have been done in England before the late rules of pleading were adopted there. Yet as liberum tenementum, whilst it asserts the freehold to be in the defendant, does not exclude the possibility of the plain-' tiff’s being possessed of the premises for a term of years, and thus leaves the plaintiff a sufficient implied color, it is in form good as a plea by way of confession and avoidance; and as the matter which it alleges, although admissible on the general issue, is, if true, matter to show that an implied color of action by the plaintiff is bad in law, it is not liable to the objection of amounting only to the general issue (1 Chit. PI. 499 ; Steph. PI. 316). It contains no denial of what the plaintiff would be bound, to prove in the first instance on the general issue, for it admits that in point of fact the plaintiff may have been in possession of the locus in quo, which prima facie would entitle him to maintain trespass against all the world but the rightful owner, and then it alleges matter whereby the act complained of is shown to be no trespass. It is like infancy or payment in assumpsit, which may be pleaded specially although they may be given in evidence under the. general issue; and as either of these may stand, with the general issue, so may it. Like every plea by way of confession and avoidance, it is necessarily inconsistent with a general traverse; and standing alone, it is an admission of all traversable matters alleged on the other side, which are not traversed by it, as every good pleading is — but no more than most other pleas, does it make (as tender does) a conclusive admission, which another plea pleaded with it may not retract.

No doubt, in a peculiar case, such as those mentioned above, where the discretion of the Courts in England has been exercised, our Courts would interfere to prevent unjust embarrassment by double pleading: but this was no such case, and we think, that the defendant ought not to have been held to the admission of a fact which one of his pleas confessed but the other denied.

The motion for a new trial is granted.

Richardson, J. Evans, J. and Withers, J. concurred.

Frost, J.

I concur in the result; but am of opinion the plaintiff should be nonsuited. If the deed from Bordeaux to Miller and wife be construed as a mere covenant, it is a chose in action, and conveys no interest in the land. If it be construed to vest in the children of Jane Miller any interest or estate, (which it is admitted it does) they must take an es fate for life in the plantation, or no estate at all in the land. An estate for life to the seven children of Jane Miller, in so much of the land as they may severally have occasion to cultivate — to be enlarged or diminished in quantity, by the verdict of a jury, as the necessity or ability to cultivate more or less land may vary with time, and the varying circumstances of the tenants, is void for uncertainty. If waste be committed by any of them, by clearing more land than the deed permits, the remedy of the plaintiff, who is the rever-sioner, is not trespass, but an action on the case, or by injunction to restrain the waste.

O’Neall, J.

dissenting. In this case, I regret that it should be thought necessary to send it back, when, as I understand, a very large majority of the Court are entirely satisfied with every thing, except the instruction that “the plea of liberum tenementum was an admission of the trespass.” The jury, by their verdict, have shown that they regarded the proof of an actual trespass, and did not rest on the technical admission. This would have been enough to sustain ,the verdict. But the instruction was in the very words of our own cases, (1 N. and McC. 355, 2 McC. 226). This is conceded.' It is, however, said, that as the defendant had also pleaded the general issue, it was necessary to prove the trespass. The pleading presents this strange state of inconsistency — the general issue says for the defendant, “I deny the trespass;” libe-rum tenementum says, “I admit the act charged as a trespass, but as the land was mine, it was no trespass.”. The decision in this case maintains this glaring opposition on the record. I would reconcile them, in this way — the plea of liberum tenementum, as the last plea, admits the trespass, and the general issue qualifies the admission, so as to require proof of the extent. The two pleas, however, are inconsistent, according to the well settled practice of the Common Pleas (1 Sell. Pra. 299). They ought not to be allowed to be pleaded together: but when allowed, the defendant ought not to have a double advantage. The true notion is stated in 1 Hill, 251; the Judge there speaking of the general issue and justification in slander, which latter plea had been specially allowed to the defendant, upon the condition that not guilty should remain on the record, said “however inconsistent the two pleas were, yet the defendant had been permitted to justify upon the condition that he should be subject to the disadvantage of having both pleas upon the record, and he could not, after consenting to the condition, and taking thé benefit which he desired under it, be allowed to get rid of it.” So here, I would say, as the defendant has put both pleas upon the record, he ought to be held, by liberum tenementum, to have admitted the trespass: but still, as by the general issue, he required proof of the extent, he could not be allowed the benefit of the reply, which he otherwise would have had, if he had only pleaded, liberum tenementum.

New trial granted.  