
    Theophilus G. Hatch vs. Charles E. Brier and wife.
    Waldo.
    Opinion December 27, 1880.
    
      Pleading. Abatement. Nontenure. Deed. Dwelling house..
    
    The plea of non tenure is in abatement and not in bar, and cannot avail unless seasonably filed.
    A deed of the westerly part -of a dwelling house and one half of the cellar conveys the land under the part of the dwelling house conveyed.
    ON EXCEPTIONS.
    Tbe opinion states tbe case.
    
      William H. Fogler, for tbe plaintiff,
    cited: B. S., c. 104, § 6 ; Ayer v. Phillips, 69 Maine, 50 ; also Qunningham v. Webb, 69 Maine, 92 and cases cited on pp. 95 and 96 ; 2 Wash. B. P. 664; 1 Wash B. P. 57.
    
      J. W. Knowlton, for tbe defendants,
    on tbe question of pleading, cited: B. S., c. 82, § 18; Shelden v. Call, 55 Maine, 159 ; Sturtevant v. Randall, 53 Maine, 149.
    On the question of title of tbe plaintiff, counsel contended that be only owned a part of tbe bouse as personal property and held no interest in tbe land, and consequently plaintiff’s remedy was in trover and not by writ of entry. Osgood v. Howard, 6 Maine, 452 ; Russell v. Richards, 10 Maine, 429 ; S. C. 11 Maine, 371; Hilborne v. Brown, 12 Maine, 162; B. S., c. 104, § § 1, 3; Orono v. Wedgewood, 44 Maine, 49 ; Jackson, Beal Actions, c. 4, § 1; Chaplin v. Barker, 53 Maine, 275 ; Tibbetts v. Fstes, 52 Maine, 566 ; 1 Bouvier Law Diet. 578, 337 ; 1 Wash. B. P. 53 ; Lincoln v. Wilder, 29 Maine, 180; Howard v. Wadsworth, 3 Maine, 474; Shep. Touch. 80; Hammond v. Woodman, 41 Maine, 177; State v. Wilson, 42 Maine, 9; 2 Wash. B. P. 686, 688, 693 ; 2 Green. Cruise, 348 ; Thompson v. Androscoggin Bridge, 5 Maine, 62 ; Gay v. Walker, 36 Maine, 54; Winthrop V. Fairbanks, 41 Maine, 307; Smith v. Ladd, 41 Maine, 314; Cunningham v. Webb, 69 Maine, 96.
   Appleton, C. J.

This is a real action brought against husband and wife, who file several pleas and exceptions to tbe rulings of tbe justice presiding.

1. The defendant, Charles E. Brier, at the second terra pleaded the general issue with a brief statement of non tenure. The general issue admits the tenant in possession. The plea of non tenure is only an abatement and not in bar. E. S., c. 163, § 19. Colburn v. Grover, 44 Maine, 47 ; Wyman v. Brown, 50 Maine, 139. It was filed too late and without leave of the court. Ayer v. Phillips, 69 Maine, 50.

2. The defendant, Sarah A. Brier, likewise pleaded the general issue with brief statements which are not reported.

It is in proof that Joseph Bryant, on September 11, 1838, conveyed certain premises to Daniel McCurdy with the following-reservation : "Deserving, however, the saw mill with the privilege and the yard to said Jot. Also, the westerly part of the dwelling house, namely, the front room and the chamber over it, and the west sleeping room; also a clothes room at the head of the front stairs; also the privilege of using the front stairs, and the cellar stairs and one half of the cellar; and privilege to the well.” The plaintiff has title by deed of what was thus reserved. The tenant has the title of Daniel McCurdy.

The presiding justice ruled that the deed from David Knowlton to the plaintiff, following the language of the reservation, gave him an estate in fee.

The defendant contended that the part of the house reserved was personal property.

In Jamaica Bond Aqueduct Corporation v. Chandler, 9 Allen, 159, it was held that a grant of a "house,” "a wharf,” "a mill” or a " well” would pass the fee in the land, which is occupied and improved at the time of the grant for the use or purpose so designated in the deed, because, remarks Bigelow, C. J., "such structures necessarily comprehend and aptly describe the entire beneficial occupation and enjoyment of the land itself, continuously, exclusively and permanently, and so clearly indicate an intent to grant the whole interest in the soil.” It was held in Allen v. Scott, 21 Pick. 25, that when land was conveyed with all the buildings standing thereon except the brick factory, that the grantor’s title to the land on which the factory stood and the water privilege appurtenant thereto, did not pass by the deed. To the same effect is the case of Esty v. Currier, 98 Mass. 500, and of Cunningham v. Webb, 69 Maine, 98. In the last cited case, Libbey, J., uses this language : "A grant of a bouse standing on a lot of land, fenced and used as a bouse and garden, conveys not only tbe bouse, but the lot of land on which it stands, unless it appears from the deed, or the facts and circumstaneés existing at the time, applicable to the estate that that was not tbe intention of the parties.” In the deed under consideration, tbe language used, " the westerly part of a dwelling house,” and "one half of the cellar,” must be construed to convey the land under the part of the dwelling house conveyed. See Moulton v. Trafton, 64 Maine, 218.

The defendant relies on the case of Howard v. Wadsworth, 8 Grreenl. 471, where the exception or reservation was of the grist mill now standing on said falls, with right of maintaining the same.” The decision x’ests on the peculiar language used. "Tbe grantors,” remarks MelleN, C. J., "repeat the word "now,” twice, in describing what is excepted.” Hence it was held that the reservation secured to the grantor only a right to the use of tbe mill then standing. So in Sanborn v. Hoyt, 24 Maine, 118, the reservation was "of all the buildings on the premises.” "The reservation,” remarks Shepley, J., "in tbis deed, is not a house, barn or shed; but "of the buildings on said premises.” Had it been of a bouse, barn or shed, it would have been otherwise— the land underneath would have passed.

Tbe rulings of tbe justice presiding were correct.

Exceptions overruled.

Walton, Danbortpi, Virgin, Peters and Libbey, JJ., concurred.  