Alchorne v Gomme

1BING. 04. ALCEORNK V. GOMME 225 [54] alohorne v. gommb. May 17, 1824. [S. C. 9 Moore, 130 ; 2 L. J. C. P. (0. S.) 118. Considered, Pope v. Biggs, 1829, 9 Barn. & C. 258,] Plea;to an avowry of distress for rent arrear, "that before the lessor (who claimed title under a pretended agreement between him and one T. E.) had any thing in tho premises, and before the demise by the lessor to the lessee, T. R. mortgaged them in fee to J. C.; that the mortgage being forfeited, notice of the forfeiture being given to the lessee, and the lessee having being required to attorn, and having attorned to the mortgagee, he distrained for the rent, when the lessee paid him, to save the goods from being sold :" Held ill. Replevin for taking Plaintiff's goods. Cognizance by Defendant as bailiff of Douglas Thompson and Henry Thompson for 431. 15s., being a year and a quarter's rent of a house which it was alleged the Plaintiff held and enjoyed as tenant thereof to Douglas Thompson and Henry Thompson, by virtue of a demise reserving the rent in question. First plea, non-tenuit. Second, riens in arrear. Third plea, that one Thomas Euruball, (before the making of the supposed demise in the cognizance mentioned, and before D. Thompson and H. Thompson had any estate or interest in the said dwelling-house in which, &c., with the appurtenances, or in the messuage or dwelling-house thereinafter mentioned to have been released and conveyed by him, and in lieu whereof the said messuage or dwelling-house in which, &c. had been built, or in the ground or soil whereon the said messuages or dwelling-houses were respectively built,) was seised in fee of the said messuage or dwelling-house and other the premises thereinafter mentioned ; and that the said Thomas Rumball being so seized as aforesaid,-before the making of the aupposed demise in the cognizance mentioned, and before D. Thompson and H. Thompson had any estate or interest in the said messuage or dwelling-house in which, &c. or in the messuage or dwelling-house thereinafter mentioned to have been released and conveyed and in lieu whereof the said messuage or dwelling-house in which, &c. was built, or in the ground whereon the said messuages or dwelling-houses were respectively built,-conveyed in 1812 by [55] lease and release to Collins in fee, (subject to redemption on payment on or before the 25th of July, 1813, of 5001., which the conveyance was intended to secure,) a house at Kensington, which being pullad down in 1816 while Collins was still seised of it in fee, the messuage in which, &c. was built in lieu of it. The Plaintiff then averred that Collins, from the time the messuage, in which, &c. was built, had been, and then was seized in fee of the messuage in which, &c., the sum of 5001. in the indenture of release mentioned not having been paid to him, Collins: And further, that Collins being so seized of the said messuage in which, &o. with the appurtenances, and the said sum of 5001. being unpaid, the said D. Thompson and H. Thompson claiming title to the said messuage in which, &c. (under color of a certain pretended agreement between them and Rumball for the sale of the said messuage in which, &c. with the appurtenances, made after the making of the aforesaid indenture of release, and after the 25th day of July, 1813, therein Allowed for the payment of the said sum of 5001., and after the mortgage thereby made, had become absolute,-whereas no legal estate or interest passed to D. Thompson and H. Thompson in the messuage in...