Tucker contra Searle, 31 Car. 2. fo. 423.

THat John Bassano, the Plaintiff Fran∣ces Father, by deed, 20 July 1640.* in consideration of a Marriage between him and Elizabeth, the Plaintiff Frances Mother, and a Marriage Portion, Covenan∣ted to stand seized of Lands to the use of the said John and Elizabeth, for their lives, and after to the first Son of the said John and Elizabeth, and so to the second third and other Sons, and the Heirs of their Bodies, remainder to the right Heirs of the said John Bassano the Elder for ever, on Condition and Limitation, that if the said John Bassano, should have Issue Female, and not Issue Male by Eli∣zabeth, Page  174then his Right Heirs to pay the first and second Daughters of the said John by the said Elizabeth 300 l. a piece, to be chargeable on the said Lands, and if more than two Daghters, then the said Lands for the full value of them to be sold, should equally be divided a∣mongst such Daughters; that the said Bas∣sano had no Issue Male by Elizabeth, but had Issue Female (viz.) Elizabeth their Eldest Daughter, the Plaintiff Frances their Second, and another Elizabeth their youngest, that Elizabeth the Eldest died in the life of her Father and Mother, and that at the death of John the Father, there being only the Plaintiff Frances living, but the said Elizabeth the Mother being ensi∣ent with Elizabeth the youngest Daughter of the said John Bassano, by Will (John Bas∣sano taking notice of the aforesaid deed) provides, that in case Elizabeth his Wife were with Child of a Son, then his Ex∣ecutors to pay to the Plaintiff Frances 300 l. but if a Daughter, then he had o∣therwise provided for the Plaintiff Frances, and such Daughter by deed, and shortly after dyed, leaving John Bassano, his Son and Heir by a former Venter, and shortly after the said Elizabeth the youngest Daughter was Born, and died in a Month after, and in 1666. Elizabeth the Mother dyed, leaving the Plaintiff Frances, where∣upon Page  175John Bassano the younger, took the Plaintiff Frances in Guardianship, and ha∣ving the said Will and Deed in his Custo∣dy, pretended to her, she had but 300 l. Portion left her by her Father. That in 1669. the Plaintiff Tucker and the Plain∣tiff Frances inter-married, and John Bassa∣no still concealed the said Will and Deed; that the Plaintiff Tucker, and John Bassano the younger agreed, that the 300 l. left to the Plaintiff Frances by her Father, should be laid out on Security or Purchase, for the benefit of the Plaintiff Frances for life, in case she survived the Plaintiff Tucker, and accordingly the Plaintiff Tucker Sealed a Deed 10th of December 1669. whereby the Plaintiff released the said 300 l. to the said Bassano the younger, upon Trust, and the said Bassano Covenants with the Plain∣tiff, that he his Executors or Administra∣tors, should either continue the said 300 l. in his or their Hands at Interest, or lay out and dispose of the same upon Securi∣ty or Purchase, and permit the Plaintiff Tucker during his life, and the Plaintiff Frances during her life, to receive the In∣terest and Benefit thereof, and to the Plain∣tiff Tucker and his Heirs, Executors, &c. That in 1671. Bassano the younger died, and made the Defendant Searle his Execu∣tor, and the said Searle refused to pay the said 300 l. pretending the want of Assets. Page  176And the Plaintiff Tucker insists, to have the said 300 l and interest to be charge∣able out of the Walthamstow Lands, in re∣gard the said Lands were originally char∣ged therewith; but the Defendant the Ex∣ecutor says, the said Lands are sold by him to one Woots, and the Plaintiff Tucker in∣sists, that such Sale was without notice of the Plaintiffs Title, and charge of the said 300 l. on the said Lands, and that Woots had Collateral Security to secure him against the Plaintiff, wherefore in regard the said Lands were Originally charged with 300 l. and the Plaintiffs were drawn in, to accept of the said Covenant, which is but a personal Security by the contri∣vance of Bassano the younger, who kept the Plaintiff ignorant of the said Deed and Will, for that the Plaintiffs Release is only upon Trust for payment of the said 300 l. the Plaintiffs do insist, that in equity the said Lands ought still to be chargeable with the said 300 l. and interest, and ought not to rely on the said Covenant.

The Defendant Searle insists, that Bas∣sano Junior by his Will devised the Wal∣thamstow Lands to be Sold for payment of his Debts and Legacies, which was Sold to Woots as aforesaid, for 1260 l. and gave him Collateral Security, by Bond of 1500 l. to secure him against the Plaintiffs demands, and that the whole Personal E∣state Page  177of the said Bassano Junior, by Sale of Lands and otherwise, fell short to pay the Plaintiffs demands, the said Searle the Ex∣ecutor, having paid Debts of a higher na∣ture, and say that the Plaintiff cannot have their whole demands, but must come in proportion with other Creditors.

And the Defendant insists, That the Wal∣thamstow Lands, ought not to be charged with the said 300 l. for that on a Bill in this Court, exhibited by the Plaintiff against Bassano Senior, whereby the Portions of the two Elizabeths Sisters of the Plaintiff Frances, were demanded to be chargeable on Walthamstow Lands, and alledged, that Bassano Junior, had secured the 300 l. be∣ing the Plaintiff Frances Portion, by the said deed of Covenant, and prayed to have the said two Elizabeth's Portions, or the value of the Lands, deducting the 300 l. secured to the Plaintiff Frances; and in Octo∣ber 25. Car. 2. it was decreed, that the Plaintiff should have the 300 l. which be∣longed to the youngest Elizabeth, and the said Lands to be chargeable therewith. But the Court then declared, they could not decree the 300 l. claimed by the said Plain∣tiff Frances in her own right, but that she must rely on the said Deed of Covenant,* for that they did not complain thereof by their Bill: And the Defendant insists, that the said decree being Signed and Inrolled, Page  178the said 300 l. ought not to be charged on the said Lands, but that they ought to rely on the said deed of Covenant, they having thereby released the said Lands.

That the Defendant Searles cross Bill, is for relief against a Bond of 600 l. on which he is Sued at Law, and for Equity did insist,* That he was Sued here by the Plaintiff Tucker and his Wife, for the 300 l. aforesaid, and that there was a decree against him in this Court, at the Suit of one Whitton, one of the Defendants to that Bill for 700 l. so that if the Plaintiff Tucker, and other Creditors should recover their demands, there will not be Assets, and therefore prayed, that the Plaintiff Tucker and Callwall, might take their pro∣portionable shares of what Assets was left, but the Plaintiff Tucker insisted, that the said 300 l. was originally charged on Wal∣thamstow Lands by the said Marriage Set∣tlement, and was not discharged by the said Covenant or Release.

The said other Creditors, Callwall, &c. insists, That they have a Verdict against Searle the Executor, for the Money due on the said Bond, upon Evidence of As∣sets in Hands, and had taken him in Ex∣ecution, and he had paid the said Money thereon, and the said Creditors had relea∣sed the said debts, and therefore ought not to be farther troubled for the same.

This Court declared,* the said Waltham∣stow Lands were originally charged with the Plaintiffs 300 l. and that the said deed of Release and Covenant being made only in Trust for payment of the said Money, and when the Plaintiffs were not told of the said Deed and Will, did not discharge the same, but the said Lands ought to make it good without damages, although there were not Assets in the Executors Hands, in regard the said Lands were sold under notice of the Plaintiffs demands; and further declared, he could not relieve the said Searle, as against the said Callwall, for that he by Coertion of Law had paid the Money recovered against him, and the said Callwall had released the same to him, and dismist Searles Bill.