Chicago & Allegheny Oil & Mining Co. v. Barnes

The opinion of the court was delivered, by Sharswood, J. To a general avowry in replevin, the plaintiff pleaded non demiserunt, and no rent in arrear. These were the only issues which the jury were impannelled to try. The questions, therefore, whether a tenant’s fixtures can be distrained, and [447] whether replevin can be maintained for them, do not arise upon this record. These form the staple of the first five assignments of error, which are therefore dismissed. The sixth assignment is, that the court erred in charging that the deed of March 80th 1866, between Chittenden and wife, and. Ira Y. Munn, did not vest the title and right to distrain in the defendants, the Chicago and Allegheny Oil and Mining Company. The defendants, to support their avowry,- showed a lease from Duncan & Prather, to Abel M. French, and, in deducing title to themselves from the lessors, gave in evidence the deed in question. It is a conveyance of one undivided fourth of the premises, to Ira Y. Munn, in trust to receive the income, and upon certain conditions, to sell, to apply the proceeds to the payment of certain bonds of the Chicago and Allegheny Oil and Mining Company, and debts for money loaned, and to transfer and convey to the said company, any of the said land which might remain after the foregoing objects should be accomplished. It is evident that the company had no present title, either legal or equitable. If, instead of joining with the other defendants in a general avowry, they had made cognisance as the bailiffs of Ira Y. Munn, it is probable the case might have gone to the jury. But Ewing v. Vanarsdall, 1 S. & R. 370, is an authority in point, not only that where several defendants join in an avowry, a demise by all must-be shown, or, what is the same thing, a title deduced from the original lessor to all, if they claim derivatively by assignment, but that under such an avowry, and the plea of non demiserunt, it is not competent to stand upon an authority from the real landlord, as if the party had made cognisance. Judgment affirmed.