Hardman v Ellames
| Jurisdiction | England & Wales |
| Judgment Date | 03 February 1834 |
| Date | 03 February 1834 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 1124
HIGH COURT OF CHANCERY
S. C. 5 Sim. 640; Coop. t. Brough., 351; 3 L. J. Ch. (N. S.), 74; 4 L. J. Ch. (N. S.), 181. See Bidder v. Bridyes, 1885, 29 Ch. D., 40.
[732] habdman v. ellames. Feb. 1, 3, 1834. [S. C. 5 Sim. 640; Coop. t. Brough., 351 ; 3 L. J. Ch. (N. S.), 74; 4 L. J. Ch. (N. S.), 181. See Bidder v. Bridijes, 1885, 29 Ch. D., 40.] A plea, that the title of the Plaintiff accrued in 1759, and that the possession of the-estates had been, ever since, adverse to the Plaintiff and to the persons through whom he claimed, was overruled, because it did not state the particular facts on which the Defendant meant to rely, as constituting the adverse possession ; and,, therefore, the Plaintiff could not know what case he had to meet. A plea of adverse possession to a bill charging that the Defendant has in his custody documents shewing the Plaintiffs title, must be accompanied by an answer denying that charge. If a Defendant in his answer states the effect of documents admitted to be in his possession, but for his greater certainty craves leave to refer to the documents themselves when produced, the Plaintiff is entitled to move for their production, although the answer positively swears that they form part of the Defendant's title,. and in no way assist or make out the title of the Plaintiff. The Plaintiff by his bill claimed a moiety of certain estates in the possession of the Defendant Ellames, as heir at law of the testator John Hardman, under an ultimate remainder in the will of the testator, expectant upon the deaths of the testator's nephews John Hardman and James Hardman successively, without issue, to his own right heirs ; and Ellames, by the leave of the Court, put in two pleas to. the bill. The case is reported in 5 Sim., 640, where the material allegations of the bill are-set forth. The Vice-Chancellor overruled both pleas, and the Defendant Ellames appealed from His Honour's decision. Sir E. Sugden and Mr. Booth, in support of the pleas. The first plea is, that the title stated by the Plaintiff accrued in 1759, and that there has been possession adverse to the Plaintiff ever since. One objection takeiu by the other side was, that adverse possession was not a sufficiently definite and technical expression ; but that expression is recognised as a term of art by Lord Mansfield and by Mr. Justice Aston in Doe v. Prosser (Cowp., 217). "What is adverse possession or ouster," says Mr. J. [733] Aston in that case, " if the uninterrupted receipt of the rents and profits without account for near forty years is not ?" So, in Peaceable v. Head (1 East, 568) Lord Kenyon observed "he had no hesitation in saying where the line of adverse possession begins and where it ends ; " and in the late Act of 3 & 4 W. 4, c. 27, s. 15, the expression "adverse possession" is used as a recognised term of art. Since the second case of Clwhiumtlelei/ v. Clinton (1 Turn. & 3 MY. 4K.7S4. HARDMAN V. ELLAMES 1125 Russ., 107) it has been the settled rule of the Court that no relief in equity will be afforded to a party, where twenty years have been suffered to elapse from the time .at which the right accrued, without any step having been taken to enforce it. In this case the Plaintiff claims the assistance of the Court to enable him to recover a legal right which accrued upwards of sixty years ago, and without even alleging any disability, or shewing any reason why he has not sooner attempted to establish his right. The Vice-Chancellor, however, was of opinion that the plea was bad, because it did not state the circumstances of adverse possession, so that the Plaintiff might know the exact nature of the defence. Had that course been taken the Defendant would have overruled his plea (Thring v. Edgar, 2 Sim. & Stu., 274) ; and this was, in fact, admitted by the Vice-Chancel lor himself in his judgment. A plea must be a short point, and the Defendant is, no doubt, bound to raise that point distinctly, so that if the plea be replied to, and come to a hearing, there may be no doubt about the matter in issue. Can there be any doubt here about the matter in issue 1 We say there has been a possession adverse to the Plaintiff since the year 1759, and if he goes to issue upon that plea, and can shew that he, or those through whom he -claims, have been in possession or in [734] the receipt of the rents and profits since that time, he will be entitled at once to a decree. A negative plea, therefore, is as dangerous to the Defendant as it is advantageous to the Plaintiff, if the latter is in .a situation to prove the fact denied by the plea. As to the other ground of the Vice-Chancellor's decision, namely, that the plea ought to have been accompanied by an answer to the common charge, that the Defendant had documents in his possession which would prove the truth of the matters alleged in the bill, that is inconsistent with the same Judge's decision in M'Gregm v. The Eaxt India Company (2 Sim., 452), where His Honour held that a plea of the Statute of Limitations need not deny the common documentary charge unaccompanied by any distinct allegation that the documents, if produced, would ;shew that the Plaintiff's case was within the statute. Here there is no allegation that the production of the documents would shew that the Plaintiff was not barred by lapse of time ; and the matters stated in the bill, to which alone it is charged that the documents relate, shew that the Plaintiff is barred. The rule as to double pleading is different in Courts of Equity from that which is followed in cases at law where double pleading is permitted by the statute (4 & 5 Ann., c. 16); for here, if either plea should be of itself insufficient, we may rest our defence upon both pleas taken together (Gibson v. WhiMiead, 4 Mad., 241). If there is sufficient upon the face of the bill to shew that the Plaintiff, or those under whom he claims, have never been in possession or in the receipt of the rents and profits, then the second plea will be a good defence, even if the first should be insufficient; and if neither the first [735] nor the second plea should be of itself sufficient, then the two pleas may be taken together, and will constitute a good defence. Mr. Knight and Mr. Jacob, contra. In Gibson v. Whitehmd leave to plead double was given under very special circumstances, and the application was not opposed. That was the first ease in which double pleading was allowed in this Court, and there is no foundation whatever for the proposition that two pleas can be united for the purpose of constituting a good defence, each of them being separately bad. In fact, the very application for leave to use two pleas shews that they cannot be so united. If either of the pleas can be sustained, the Plaintiff's case is out of Court; and if they -are both bad, it necessarily follows that they must both be overruled. It is an inflexible rule that several matters cannot be joined in one plea; and if two pleas be joined, they become, for the purpose of applying this rule, one plea. The objection to the plea of adverse possession, on the ground that it is not supported by an answer to the documentary charge, is fatal. The rule is, that a Defendant cannot plead to the whole bill, and withhold documents in his possession, which, if produced, would fortify the allegations in the bill. In Thring v. Edgar (2 Sim. & Stu., 274) the plea of "no debt" was a complete bar to the whole discovery as well as to the relief, and there was no special allegation in the bill seeking the discovery of any circumstances by which the existence of the debt was to be established. The Defendant, therefore, overruled his plea by answering as to the debt. In M'Gregor v. The East India Company (2 Sim., 452) the Plaintiff's charge was, that the defendant had in his pos8es-[736]-srion papers relating to the matters aforesaid, and by which, if produced, 1126 HARDMAN V. ELLAMES 2 MY. a E. 737.. the truth of the matters aforesaid, or of some of them, would appear. Now, the matters aforesaid to which the documents were charged to relate might well be matters to which the plea had no reference, and the production of which was wholly immaterial; and this was, in point of fact, the case; for the Defendant pleaded the Statute of Limitations, and there was no part of the bill which alleged that the promise was made within six years. In the present case there is a distinct allegation in the bill that the Defendant Ellames accounted, after the death of the testator's widow-in 1815, with her representatives for a moiety of the rents; and, taking that to lie the fact, there is an end to the plea of adverse possession since 1759. This, therefore, was an allegation of a material collateral fact, which, according to the authorities, the Defendant was bound to negative by answer. In Emerson v. Harland (3 Him., 490), where to a bill filed by persons claiming title as co-heirs of A ex parte nwterna, and charging that the Defendants had frequently admitted, by correspondence, the Plaintiff's title, the Defendants pleaded that another person was the heir of A t.y, park jmternd, that plea was overruled because the Defendants did not support it by an answer denying the correspondence. The second plea in the present case has been twice overruled, and the vice of the first plea is that it does not enable the Plaintiff to know the nature of the case which he has to meet. Sir E. Sugden, in reply. Gibson v. Whitehead supports the proposition that two pleas, though each of them may be separately in-[737]-sufficient, may be united for the purpose of constituting a good defence ; for in that case the Court permitted the Defendant to plead separately two facts, neither of which alone would have been of the slightest use as a defence to the hill. Thring v. Edyar has always been followed : and M'Greyor v. The East India Company was not decided, as has been supposed, upon the narrow...
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