The question is whether, if, pending a real action for the recovery of land, the title to the land, and the right of possession, pass from the plaintiff and become vested in the defendant, this fact may be pleaded in bar of the further maintenance of the suit.
Undoubtedly. In Rowell v. Hayden, 40 Maine, 582, the court held that where, after the commencement of his suit the plaintiff conveyed the demanded premises to a third person, this fact might be successfully interposed to the further maintenance of the suit. And if such is the law when the title has become vested in a third person, a fortiori, such must be the law when the title and the right of possession have become vested in the defendant. Why should the plaintiff recover the possession of v land after his right to the possession is extinguished, and it is *579certain that he cannot hold it if it is given to him ? And why should the defendant be deprived of the possession after he has in a lawful mode become the owner of the land, and entitled to the possession of it ? It is believed no good reason can be given.
It is perfectly well settled that such a defence can not be made under the general issue. It must be specially pleaded. And it must not be pleaded in bar of the suit generally. It can be pleaded only in bar of the further prosecution of the suit. The effect then is, not to defeat the suit ah initio, but to stay its-further prosecution; in which case the plaintiff will recover his costs up to the time of the filing of the plea, and the defendant will recover his costs incurred subsequently. In one sense, such a plea may be said to divide the suit into two actions, in the first of which the plaintiff is the prevailing party and entitled to costs, and in the second of which the defendant is the prevailing party and entitled to costs. This result avoids all supposed hardships, and deals out to both parties even handed justice,— a result devoutly to be wished for in all cases.
Such must be the judgment in this case. The demanded premises have been taken by the defendants for a school-house lot. Pending the suit, they have perfected their title to it. This 1ms been done without the concurrence of the plaintiff; but it has been done under authority of the statutes of the state, and in the performance of a public duty imposed upon the defendants by law ; and a title thus acquired is entitled to the same respect and to the same protection as one obtained in any other mode. The evidence satisfies us that the plaintiff has been tendered the appraised value of the lot-, and that his right to the possession of it is extinguished. This fact is brought to the attention of the court by a proper plea : and it is the judgment of the court that the suit be no further prosecuted.
Peters, C. J., VirgiN, Libbey, Eviery and Haskell, JJ., concurred.