Keith v. Swan
Massachusetts Supreme Judicial Court
This was a writ of entry sur disseisin, brought by the demand-ant as assignee of a mortgagee, in which he complains of a disseisin by Swan, the tenant, who pleads in bar that he is not tenant of the freehold of the demanded premises, nor was at the time of the commencement of the plaintiff’s action aforesaid against him ; but that T. A. at that time was, and still is, tenant of the freehold in said premises; and that the said F. S. was only tenant at will under the said T.…
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This was a writ of entry sur disseisin, brought by the demand-ant as assignee of a mortgagee, in which he complains of a disseisin by Swan, the tenant, who pleads in bar that he is not tenant of the freehold of the demanded premises, nor was at the time of the commencement of the plaintiff’s action aforesaid against him ; but that T. A. at that time was, and still is, tenant of the freehold in said premises; and that the said F. S. was only tenant at will under the said T. A. To which plea in bar the demandant de murs generally, and the tenant joins in demurrer.
1Per curiam
To a writ of entry upon a mortgage in fee, the tenant in the action has pleaded in bar that he is not, and was not at the commencement of the suit, tenant of the freehold. The demandant objects that this ought to have been pleaded in abatement, and, on that ground, has demurred to the plea. We are agreed in the opinion that the demurrer must prevail. Non-tenure cannot be pleaded but in abatemeht. (4), (a)
Further, an action for possession by a mortgagee is not governed altogether upon the general principles applicable to real actions. It is wholly bottomed on our statutes. The right to the…
2Cases cited1 opinion
- Otis v. WarrenMassachusetts Supreme Judicial Court · 1817
3Cited by9 opinions
- Dooley v. PotterMassachusetts Supreme Judicial Court · 1885
- Churchill v. LoringMassachusetts Supreme Judicial Court · 1838
- Fales v. GibbsU.S. Circuit Court for the District of Massachusetts · 1830
- Fiedler v. CarpenterU.S. Circuit Court for the District of Massachusetts · 1846
- Fosdick v. GoodingSupreme Judicial Court of Maine · 1820
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