Phipps v. Boyd

The opinion of the court was delivered, by Strong, J. The first three assignments of error are founded upon a supposed variance between the avowry and the evidence given in support of it. To the avowry the plaintiffs had pleaded non demisit, and it was therefore incumbent upon the- avowant to prove the demise as laid. If the evidence did not tend to prove such a demise, it was inadmissible, or if it proved none, or a different one from that alleged in the avowry, the plaintiffs were entitled to the instruction they asked, that the rent reserved should be accurately stated. The rent reserved must be, for that is descriptive of the demise, which the rent' in arrear is not. There is an inaccuracy in the language of Judge Coulter, in Waltman v. Allison, 10 Barr 464. It is not necessary that the avowry should state the amount of rent due as it is shown to be by the proof. The avowry in this case is most inartificially drawn. It might have been successfully assailed by a special demurrer. But the plaintiffs pleaded to it, and the only question now is whether the evidence tended to sustain its averments. It does not state the date of the demise nor who was the original lessor, but it avers in substance that the plaintiffs held under a lease reserving to the defendant a specified rent payable monthly. It certainly did tend to support this averment, that a lease had been made to the plaintiffs by a former owner of the lot, reserving the described rent, and that such former owner had conveyed the reversion to the defendant, especially when coupled with some evidence that the lessee had applied to the defendant for a renewal of the lease. The rent followed the reversion, and it might therefore be described as reserved to the reversion. The plaintiffs misunderstand the avowry when they say it alleges a demise from Boyd, the defendant, to the lessees. It was not then erroneous to admit in evidence the lease and the conveyance of the reversion. Nor was it error to refuse to charge that there was a fatal variance between the allegata and the prolata. It may be added that the avowry might have been amended so as to meet the proof more directly without changing its substance. Nor was there error in refusing to charge the jury as was stated in the 2d point. The fact would have amounted to no defence against the avowry. It [345] would not necessarily have proved that the conveyance from Johnston to Boyd was fraudulent as against the former creditors, and if it would, that was a matter with which the lessee had nothing to do. The statute of Elizabeth avoids conveyances made to delay and hinder creditors as against those intended to be postponed or defrauded. No other are within the protection of the statute. Probably the judge should have affirmed the plaintiff’s 3d point, and if it were not plain that no material harm was done to them by his omission to affirm it, we might be compelled to order a new venire. But the verdict was for very little more than four months’ rent and interest. The excess is so small that it would be no benefit to the plaintiffs in error to send the case back for a new trial. Judgment affirmed.