certain manner, and the answer contains a counter-averment that the title was derived in a different manner, this counteraverment is a denial, if it is alleged that the facts are not otherwise than averred in the counter-statement.76 3755. Disclaimers. An answer which disclaims all interest in the land in dispute, except such as the defendant may have under the Homestead Law, is not a disclaimer." Where defendants disclaim as to a part of the premises, and as to another part pleaded that plaintiff was not in possession at the time of the commencement of the action, it is not error to render judgment against them for costs.78 Where the plaintiff succeeds in part and fails in part, costs may be awarded, at least upon the part on which he succeeded:79 and defendants can not take advantage of the statutory provision relating to disclaimers to save themselves from costs, where they have raised the issue on plaintiff's possession.80. One who held possession in subordination and in privity with the title of the rightful owner is not precluded from imparting by his own acts an adverse character to his possession. Nor is it necessary to first surrender the premises. The trustee may disavow and disclaim his trust; the tenant, the title of his landlord after expiration of lease, or even before, by forfeiture of lease, disclaiming the tenure, and attorning to another.81 So the vendee may disclaim the title of his vendor after breach of his contract, and the statute will commence to run at the time of such disclaimer.82 But a clear, positive, and continued disclaimer is necessary.83 76 Sitter v. Jewett, 33 Čal. 92. 77 De Uprey v. De Uprey, 27 Cal. 331; 87 Am. Dec. 81; Noe v. Card, 14 Cal. 576. 78 Brooks v. Calderwood, 34 Cal. 563. 79 Id. 80 Id. 81 Blight's Lessees v. Rochester, 7 Wheat. 535; Willison v. Watkins, 3 Pet. 47; Walden v. Bodley, 14 id. 156; Reed v. Proprietor of Locks and Canals, 8 How. (U. S.) 274. 82 Pellatt v. Ferrars, 2 Bos. & Pul. 542; Fenwick v. Reed, 5 Barn. & Ald. 232; Fishar v. Prosser, Cowp. 217; 2 Stark. Ev. 887; Kane v. Bloodgood, 7 Johns. Ch. 90; 11 Am. Dec. 417; 20 Johns. 565; Salmon v. Rance, 4 Serg. & R. 310; Jordan v. Cooper, id. 570; 2 Sch. & Lef. 83 Zeller's Lessees v. Eckert, 4 How. (U. S.) 289. § 3756. Forfeiture, plea of. In an action of ejectment to recover mining claims, an answer to the complaint which avers that any right that plaintiffs may have ever had to the possession, etc., they forfeited by a noncompliance with the rules, customs, and regulations of the miners of the diggings, embracing the claims in dispute, prior to the defendant's entry, is insufficient in not setting forth the rules, customs, etc.84 The facts should be stated so as to enable the court to determine whether the forfeiture did accrue. The averment of forfeiture is a legal conclusion upon which no issue can be taken.85 § 3757. Former recovery. A plea of former recovery in ejectment, as to a part of the demanded premises, should describe the land which was in contest in the former action, and such plea is bad if it is pleaded as a general defense to the whole action, and there are several plaintiffs, and the former recovery was against one only of the several.86 In an action of ejectment to recover the possession of land, where the defendant simply denied the allegation of the complaint, it was held that he could not introduce in evidence a copy of the record of a former recovery.87 § 3758. Fact of possession. Where a complaint for the possession of land avers defendants to be in possession, and the answer does not deny, but affirmatively shows it, then, even if the allegation of possession be not material, and, therefore, not requiring a denial, the fact of possession becomes a matter of admission or agreement between the parties, as an independent fact not in issue by the pleadings, but affecting the whole case. 88 § 3759. General issue. If the defendant in ejectment pleads the general issue only, the plaintiff is entitled to recover in case the defendant is found in possession of any part of the demanded premises.89 The general issue plea is, not guilty, and under it, coverture or any other available defense may be taken.9 In an action of ejectment, under the general issue, the question at 84 Dutch Flat Co. v. Mooney, 12 Cal. 534. 85 Id. 86 Anderson v. Fisk, 36 Cal. 625. 87 Piercy v. Sabin, 10 Cal. 22; 70 Am. Dec. 692. 88 Powell v. Oullaham, 14 Cal. 114. 89 Greer v. Mezes, 24 How. (U. S.) 268. 90 Black v. Tricker, 52 Penn. St. 436. issue is, not whether the ancestor had title, and the right of possession, but whether the plaintiffs, at the commencement of the action, had such title and right. Under the general issue, or a general denial of the allegations of the complaint, the defendant may controvert by evidence any and every fact which the plaintiff is bound to establish to make out his cause of action.91 He can not, under such an answer, prove a discharge of a cause of action once existing in the plaintiff against him, because that is an affirmative defense, or new matter, which must be pleaded. But he may show that the plaintiff never had any such cause of action against him as is alleged in the complaint.92 Matter that goes to affect the title may be proved under the general denial.93 So abandonment of land may be proved. A general denial, in an action of ejectment, brings in issue the respective titles of plaintiff and defendant.95 94 § 3760. Grant of easement. Grant of easement or servitude must be specially pleaded.96 The lessee of an inner close has, by necessity, a right of way over an outer close which belongs to his lessor, but he can not by user acquire an easement to deposit packages on a close which belongs to his lessor.97 § 3761. Homestead. The husband or the wife may set up the facts of homestead, as a defense to ejectment, based upon a sheriff's deed upon the premises, made in pursuance of an execution sale on a judgment at law against the husband, there having been no abandonment of the homestead.98 A defendant in possession may show that he has entered the land under the Homestead Law of the United States, and is not estopped, by a sale and delivery of possession to him by the plaintiff, from showing that he now holds them under said laws.99 He does not thereby deny the title of the vendor, but he confesses and avoids it. He may show that the vendor's title has expired, for by the estoppel he is precluded from denying only 91 Andrews v. Bond, 16 Barb. 633. 92 Raynor v. Timerson, 46 Barb. 518 93 McCormic v. Leggett, 8 Jones L. 425; Moore v. Tice, 22 Cal. 516. 94 Wilson v. Cleaveland, 30 Cal. 192; Bell v. Brown, 22 id. 671. 95 Marshall v. Shafter, 32 Cal. 176. 96 American Co. v. Bradford, 27 Cal. 868. 97 Gayford v. Moffatt, L. R., 4 Ch. 133. 98 Williams v. Young, 17 Cal. 403. 99 Holden v. Andrews, 38 Cal. 119. what he has previously admitted, and by executing the contract, and entering under it, he admitted the existence, but not the continuance, of title in the vendor.100 And as the right to possession depends upon title, when the vendor's title expires his right to possession expires. 3762. Misjoinder. Where two are joined as plaintiffs in an action for the recovery of land, a denial in the answer that the plaintiffs were in possession of the land does not present the issue of a misjoinder of either of the plaintiffs.101 103 § 3763. New matter. Subsequently-acquired title in defendant must be specially set up.102 Title acquired by defendants pendente lite, and other matters of defense arising subsequent to the commencement of the suit, must be set up by a supplemental answer in the nature of a plea puis darrein continuance.1 So, also, a transfer of title by plaintiff must be by supplemental answer, or it can not be given in evidence.104 The interest of a mortgagor in possession was sold on execution, and ejectment was brought against him by the purchaser. It was held that the mortgagor could defend his possession by taking a lease from the mortgagees, and setting it up by a plea puis darrein continuance.105 § 3764. Nontenure. In most actions nontenure is, in Massachusetts, a good plea either in bar or abatement, though in some states and in England it is good only in abatement.106 A mortgagor in possession can not, in a suit against him by his mortgagee to recover possession of the mortgaged premises, plead special nontenure.107 § 3765. Several defenses. In an action to recover a mining claim, the complaint, duly verified, alleged title and possession in plaintiffs on a certain day. The answer, also verified, denied that plaintiffs ever had either title or possession, and after 100 Jackson v. Rowland, 6 Wend. 670; 22 Am. Dec. 557; Dispard v. Wallbridge, 15 N. Y. 374; Holden v. Andrews, 38 Cal. 119. 101 Gillam v. Sigman, 29 Cal. 637. 102 Moss v. Shear, 30 Cal. 468. 103 Id.; Hardy v. Johnson, 1 Wall. 371. 104 Moss v. Shear, 30 Cal. 468. 105 Simmons v. Brown, 7 R. I. 427; 84 Am. Dec. 569. 106 Fiedler v. Carpenter, 2 Woodb. & M. 211. 107 Marsh v. Smith, 18 N. H. 366. wards averred that if plaintiffs ever had a title to the claim, they had abandoned and forfeited it before defendants' entry. At the trial, on motion of plaintiffs, the court ordered defendants to elect on which of the above defenses they would rely; and defendants, having, after excepting to the order, elected to rely upon their denial, were precluded from introducing proof of the abandonment and forfeiture; it was held that the action of the court was error; that defendants had the right to set up both defenses in their answer, and support both by proof.108 The defendant may deny the title of the plaintiff, and also plead the Statute of Limitations.109 If in ejectment there are several defenses set up in the answer, some of which are insufficiently pleaded, and the defendants have a general verdict, and the record does not disclose on which one of the defenses the verdict was rendered, the judgment will be reversed.110 § 3766. By one of several tenants charged as joint tenants. Form No. 906. [TITLE.] The defendant answers to the complaint: That the defendants, A. B. and C. D., at the times mentioned in the complaint, and ever since, have held and occupied segregated portions of the premises separately, and not jointly, towit: the defendant A. B. the part [stating what], and the defendant C. D. the part [stating what].111 § 3767. Improvements -set-off. Where damages are claimed for withholding the property recovered, upon which permanent improvements have been made by a defendant, the value of such improvements may be pleaded as a set-off to the damages for withholding the property.112 But where no proof is introduced to show damages, it is no error to refuse to allow the defendant to prove the value of the improvements made by him on the property.113 A defendant in ejectment, who has 108 Bell v. Brown, 22 Cal. 671. 109 Wilson v. Cleaveland, 30 Cal. 192. 110 Anderson v. Fisk, 36 Cal. 625. 111 For a form of defense, see Fosgate v. Herkimer Manufacturing & Hydraulic Co., 12 N. Y. 580; S. C., 12 Barb. 352. 112 Cal. Code Civ. Pro., § 741; Yount v. Howell, 14 Cal. 465; Ford v. Holton, 5 id. 319; Welch v. Sullivan, 8 id. 165. 113 Ford v. Holton, 5 Cal. 319. |