The second part of Reports of cases taken and adjudged in the court of Chancery, from the 20th year of King Charles II. to the first year of Their present Majesties, King William and Queen Mary Being special cases, and most of them decreed with the assistance of the judges, and all of them referring to the register books, wherein are setled several points of equity, law and practice. To which is added, the late great case between the Dutchess of Albemarle and the Earle of Bathe.

White cont. Ewens & al', 22 Car. 2. fo. (237.)

THis is upon an Appeal from a Decree, the Case being, That Dame Ann Brett, Relict of Sir Alex. Brett, having a Joynture in the Manors and Lands of Whitstanton, and Alexander her Son having on the Marriage with Elizabeth the Daughter of Sir William Kirkham, agreed to settle 250 l. per Annum Joynture on the said Elizabeth; but being disabled to do it, by reason of Dame Anns Joynture, he being seised only of 120 l. per Annum in Whit∣land, and the Reversion of Yarkcombe, the said Alexander agreed with the said Dame Ann, That his Heirs, Executors, or Admi∣nistrators, should pay yearly after his death, to Sir Humfry Lind and George Brett 250 l. per Annum during the said Dame Anns life, if the said Elizabeth should so long live; and thereupon the said Dame Ann Joyned with the said A∣lexander in a Grant of a Rent-charge of 250 l. per Annum out of Whitstanton for

the Joyture of Elizabeth and Alexander, 12 Jac. 1. demised Whitland and Tarkcombe to Lind and Brett the said Trustees for an hundred years, to commence immediately after such time as the Heirs, Executors or Administrators of Alexander should fail to pay the said 250 l. per Annum to the said Trustees during the life of the said Elizabeth.

That 15 Jac. 1. the said Alexander died, and there being a failure of payment of the 250 l. by the Children, Executors, &c. of the said Alexander, to the said Eliza∣beth, or to the Trustees, for the use of the said Dame Ann, the said Dame Ann paid the same out of Whitstanton, and thereby the said Lease of 100 years of Whitlands and Yarkcombe did commence; and there∣upon she entred, and received the Profits of Whitlands, and the said Dame Ann paid the 250 l. during the life of the said Eliza∣beth.

That the said Alexander leaving three Children, viz. Robert, Mary and Ann wholly unprovided for, and by Agreement the said Dame Ann was to pay 80 l. per Annum for the said Childrens Maintenance, from the death of the said Elizabeth their Mo∣ther; and that the said Dame Ann and her Trustees should assign the said Lease of 100 years to the said Children, when at Age.

That 17 Jac. 1. the said Lease was assigned to the Children, to commence from 1636. that the said Dame Ann paid the said 80 l. per Annum maintenance, which with 1750 l. she had paid to the said Elizabeth, amounting to more than the Value of the said Lease of Whitlands, whereof she received the Profits, till about 1636. the said Mary one of the Children being dead, and that the Defen∣dant Ewens having married Ann the other Daughter, they and the said Robert Brett the Son held the said premisses as Joynt∣tenants by virtue of the said Lease; but the said Robert Brett receiving more of the Profits than his share, the Defendant Ewens and his Wife sued out a Writ of Partition in 1654. a Moiety was delivered to the Defendant Ewens, and Judgment given, that the same should be held in severalty; and the Defendant Ewens, 12 Car. 2. for 132 l. Fine, and 20 l. per Annum, demised part thereof to the Defen∣dant Nurse, who assigned to the Defen∣dant Rutland.

That the Plaintiff White insisting, That Robert Brett acknowledged a Judgment to Richard White in 1644. extended the Defendants Moiety, and brought an Eject∣ment, and got a Verdict by surprize since which the Defendant brought an Action, and obtained a Verdict, whereupon the

Plaintiff exhibited this Bill, and hath stayed the Defendants by an Injunction.

To have an account of the Profits received, and a Lease 12 Jac. 1. being 20 years since, is contrary to the Limita∣tions and Rules both at Law and E∣quity.

The Plaintiff insists, He is now in the place of the said Robert, but in a better condition, his said Judgment under which he claims being long since Extended in the life time of the said Richard White and Robert Brett, and before any Action brought, and if the said Lease be satis∣fied, the same ought to be set aside: And to take off the length of Time insists, That by a Decree made in the Court of Wards in 1640. the Defendants were to account with the said Robert Brett, and the Plaintiffs Father Richard White really lent the said Mony for which the Judg∣ment was got: and in 1646. on Extent, had a Moiety of Whitlands delivered, and that notwithstanding the Lease to the three Children, the Lady Ann had pos∣session of Whitlands till 1637.

The Defendants insist, That the Lady Ann paid 1750 l. and 80 l. per Annum, during the Minority of the Children, which is more than the Value, so look'd on her self an absolute Owner, and dis∣posed of the said Lease, whereof the said

Robert had a Moiety, and that this differs from ordinary Mortgages, the Lease being to commence after failure of Pay∣ment by the Heirs, Executors or Admini∣strators of the said Alexander, and there was no Proviso therein, and that the said Lady Ann in all probability hath paid many Hundreds of Pounds, and Elizabeth might have lived many years longer; and tho' the Lady Ann had paid treble the value, yet she must have been contented with her Security, and the said Robert Brett did not think the same worth Re∣deeming; and tho' the Reversion in Fee was Extended in 1646; yet the said Ro∣bert Brett and the Defendant Ewens con∣tinued possession till Judgment on the Writ of Partition, and from thence till 1662. which was 20 years after the Plain∣tiffs Judgment, and the Lady Ann was to continue possession till the Children at∣tained 21 years of Age, which was in 1636. when the said demise to them made did commence.

This Court being assisted with the Judges, were of Opinion and declared themselves fully satisfied, That the Plain∣tiff ought not to have any Relief against the Defendants, but that the Bill ought to be dismissed, for that his Lordship doth take a difference betwixt the Lease which is to commence after failure of Payment,

and a Mortgage with a Condition subse∣quent, and the rather in this case, for that the breach was in the failure of payment of 250 l. per Annum, which the said Lady was thereby obliged to pay for a young Life, and so might have been paid for many years, and if it had been paid in the Casualty for 20 years, the Heirs would never have redeemed it, and therefore no Reason why the Plaintiff should take advantage thereof; and also the Agree∣mant before mentioned, between the said Dame Ann and Kirkham weighed much in this Court, to which Agreement Robert the Heir, by his Enjoying of the premisses so assigned, together with the Defendant Ewens and his Wife, after he came of Age, consented, and there was no disturbance during the Tenancy in Common as to the Right, but to as perception of Profits only, and the Heir permitting the Defendant Ewens and his Wife to have Judgment on the Writ of Partition was a Consent of the whole, and in this Consent it is not the Heir, but a Stranger who seeks to redeem, and no man that puts himself after so long a time into a condition to redeem, shall have any Relief here; and it is the stronger against the Plaintiff, that no Consideration is proved for the said

Judgment, which was entred into so long since as the Year 1640, and after 60 years, this Court will not relieve the Plaintiff, but dismiss the Bill.

Notes

• Appeal from a Decree.
• Partition.
• Lease to commence after failure of payment.
• Difference betwixt a Lease which is to com∣mence after failure of Payment, and a Mort∣gage with a Condition subsequent.
• Redemption after a long time.
• Plaintiff not relieved up∣on a Judg∣ment entred into 60 years ago, and no Consideration proved.