Brigham v. Welch

Mellen C. J.

delivered the opinion of the Court at the ensuing June term in Kennebec.

In this action the defendant pleads non-tenure; and the question is whether, on the foregoing statement, the action is maintainable. The defendant does not deny the alleged seisin of the demandant, but in his plea relies upon a fact which, if true, constitutes a good defence, though the premises may be the property of the demandant. In relation to the merits of the plea, the facts are these, viz. that at the time of the commencement of the action, on the third day oí February, 1829, the defendant was in possession of the premisses j that on the day preceding, the plaintiff demanded of him possession of the same; to which he replied that if the demand-ant thought he had a better right to the land than the tenant had, he must get it when the law would give it to him. Here is a direct claim of right on the part of the defendant; a plain refusal to surrender the possession, and a distinct defiance of the demandant’s title, until he could establish it at law. These facts show that the defendant was tenant of the freehold, and of course the defence must fail. The argument of the defendant’s counsel, as applied to a part of the ease, is a correct and able one, and well sustained by authorities ; and if the.defence had been placed on some other plea, which would have rendered his argument distinctly applicable to the point in issue, we should have felt its force, and probably have yielded to it. But as the case stands we are all of opinion that the defendant must be defaulted.