Hampden Keith versus Francis Swan.
Non-tenure cannot be pleaded but in abatement
Any person in possession of land mortgaged is liable to the action of the mortgagee, [whether he be tenant of the freehold or not]
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.
Rice, in support of the demurrer,
argued that the plea was mat-
ter in abatement only, and not in bar; and so, he said, were the forms in all the books.
* Bond, for the tenant,
contended that the action lies [ * 217 J only against tenant of the freehold. In a plea in abatement, the defendant is bound to give the plaintiff a better writ; but the tenant in this case cannot be held to that. He knows that no action lies against him; and he is obliged by no rule to give to the demandant another tenant to his action. The reference to T. A. in the plea is mere surplusage.
Per 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. ,
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 freehold is not decided in such action. Any person in possession of the mortgaged premises is liable to the action of the mortgagee. The plea is adjudged bad, and the conditional judgment prescribed by the statute must be entered.