Opinion
October 24, 1900.
PRESENT: Stiness, C.J., Tillinghast and Blodgett, JJ.
(1) Trespass quare clausum. Pleading and Practice. Evidence. In an action of trespass quare clausum fregit upon the general issue, the only questions at issue are the possession of the plaintiff and the acts of trespass by the defendant.
(2) Trespass quare clausum. Title in Defendant. The question of title in the defendant can only be put in issue in such action by special plea.
TRESPASS quare clausum fregit. The facts of the case sufficiently appear from the opinion. The requests for rulings, as they were not considered by the court, are not stated. Heard on petition of defendant for a new trial, and new trial denied.
Herbert Almy, for plaintiff.
Bassett Mitchell, for defendant.
The defendant petitions for a new trial on the ground of verdict against the evidence and of exceptions to rulings of the court.
The action being trespass quare clausum, the only issues were the possession of the plaintiff and the acts of trespass by the defendant. On these points the verdict is sustained by the evidence.
The exceptions presented by the defendant relate to the question whether the title to the real estate, upon a judicial sale, vested from the sale, by relation, upon the delivery of the deed and payment of purchase-money after the trespass alleged.
The question of title in such an action is only put in issue upon the setting up of title in the defendant. A plea of title in the defendant was filed, but was withdrawn on the day of the trial; whereupon the plaintiff was only bound to prove possession.
The requests for rulings as to a title by relation were therefore immaterial.
Petition for new trial denied, and case remitted.