
    Samuel W. Flagg versus John G. Thurston.
    To a petition for partition, alleging that the petitioner is interested with persona unknown, the respondent pleads in bar, as to a part of the land, that one T. died seised thereof in fee, that the same was assigned to his widow as her dower, that the reversion thereof was sold and conveyed by the respondent as his administrator, and that thereupon the purchaser became seised thereof, subject only to the dower. Held, that the plea was bad, inasmuch as it did not show any title m the respondent.
    A like plea, with the additional averment that the purchaser of the reversion had conveyed to the respondent, and that thereupon the respondent became seised, subject only to the dower, was also held bad, inasmuch as it did not traverse the seisin nor the possessory right of the petitioner.
    Petition for partition of certain land, in which the petitioner alleges that he is interested with persons unknown.
    The respondent in his 4th plea in bar alleges, as to two acres and thirty rods, part of the land described in the petition, that on the 12th of February 1816, one Gates Thurston died seised and possessed thereof in his demesne as of fee ; that on the 24th of the same February, administration on his estate was duly granted to the respondent ; that on the 1st of December 1818, the same part was duly assigned to the widow of the deceased as part of her dower ; that on the 2d of March 1819, the respondent, as administrator, pursuant to a sale under a license of court, conveyed the reversion to one Wilder, who thereupon became seised of the same two acres and thirty rods of land, subject only to the widow’s dower ; and that the petition for partition was not preferred within five years next after the delivery of the deed. (See St. 1817, c. 190, § 12.)
    
      Oct. 11th.
    
      Oct. 5th.
    
    The fifth plea in bar was similar, but with the further allegation, that on the 30th of March 1819, Wilder conveyed the reversion of the two acres and thirty rods to the respondent, by force whereof he became seised of the same in fee, subject only to the dower.
    The petitioner demurred specially to each of these pleas.
    The case was argued by Hoar and Dustin, for the petitioner, and by Merrick, Smith and Lee, for the respondent.
   Wilde J.

delivered the opinion of the Court. The petitioner demurs specially to the respondent’s 4th and 5th pleas in bar ; but as we are of opinion that both pleas are defective in substance, it is unnecessary to consider the special causes of demurrer.

The 4th plea shows no title in the respondent, and it is very clear, that on the facts therein stated, he has no right to object to the partition prayed for.

In the fifth plea, however, it is averred, that after the sale and conveyance of the reversion of the two acres and thirty rods to Wilder, he sold and conveyed the same to "the respondent, and that the respondent thereupon became seised thereof, subject only to the widow’s dower. But this plea also is defective, because it contains no denial or traverse of the petitioner’s possessory right. Mon constat that he does not possess the widow’s right of freehold ; nor does it appear what title Gates Thurston had in the premises. He might have been seised by disseisin, and the petitioner may have since entered and become reseised. The plea therefore is not necessarily inconsistent with the petitioner’s claim, and a traverse of his seisin or right was necessary ; and the omission of it in this case is clearly matter of substance and fatal to the plea.

Fourth and fifth pleas adjudged bad.  