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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Rancliffe (Lord), and Others v. Parkyns (Lady), Widow of Sir Thomas Parkyns, and Others [1818] UKHL 6_Dow_149 (04 March 1818)
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SCOTTISH_HoL_JURY_COURT
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(1818) 6 Dow 149
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session, 1818.
58 Geo. III.
ENGLAND.
APPEAL FROM THE COURT OF CHANCERY.
No. 7
v.
ELECTION. — MISTAKE. — PURCHASER FOR VAL. CON. WITHOUT NOTICE. — LENGTH OF TIME. — ADMISSIONS IN ANSWERS, &C.
Father seized in fee of a manor and lands, &c. in R.; by settlement on his second marriage, limits estates tail to the sons of the marriage in his lands, &c. in R. without mentioning the manor, the ultimate remainder in the lands to himself and his heirs. The father having still the manor of R. and the reversion in fee of the lands, &c. and having two sons of the marriage, afterwards makes a will by which he devises all his manor and lauds, &c. in B. and R. to his sons for life, with remainders to their sons in tail. Expressions in the will from which, if there had been nothing to oppose that construction, it might be reasonably conjectured or concluded that the testator intended to devise immediate estates for life to his sons, not only in the manor which was his own, but in the lands, &c. in R. in which they had estates tail under the settlement, and thereby to raise a case of election. But in the will he expressly ratifies and confirms the settlement, and every thing therein contained. Held by the Court of Chancery that this was not a case of election, and the judgment affirmed in Dom. Proc.
Lord Eldon , (C.) observing that it is difficult in any case to apply the doctrine of election where the testator has a present interest in the estate devised, although it may not be entirely his own; and here he had manor, and the reversion in fee of the lands; and expressly confirmed the settlement in all its parts; and you cannot, as against that express declaration of intention to the contrary, take it by conjecture, call it demonstration plain, necessary implication, or what you will, but still only conjecture, that he does not mean to confirm.A. by will dated 1735, devises all his real estates in these general words, to his daughter I. for life, remainder to
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her first and other sons in fee. Marriage of I. and B. (B. having no notice of the will) and petition in 1746 to parliament for an act to enable them to make a settlement, they being minors, in which petition I. is represented as entitled in fee to certain estates which had belonged to her father A.; and act passed and settlement made on that ground. B. by settlement made in 1776, gives considerable interests to C. his eldest son by his wife I. which C. could not otherwise have in his father's life-time. Will of A. of the existence of which the parties had been before ignorant, discovered in 1799; bill in 1800 by C. claiming the estates under the will of A. his grandfather, as eldest son of I. dismissed in Chancery without costs; and the decree affirmed under the circumstances; it being uncertain whether the estates in question passed under the general words in the will of A. and whether the representation to parliament might not have been correct; B. honestly believing that he was a purchaser for yal. con.; so long a time having elapsed, &c.
Bill filed 1799; amended bill in 1800.
Case of the Leake and Thorpe estates.
Mortgage.
The case made by the bill as amended in 1800, which will be found more particularly stated in the Lord Chancellor's judgment, was generally and in substance as follows: By articles made in 1707 on the marriage of Sampson Parkyns, eldest son of Sir Thomas Parkyns, and Alice Middlemore, Sir Thomas and Sampson covenanted to settle certain premises in Great or East Leake, and Thorpe in Glebis or in the Clotts, in the County of Nottingham, to the use of Sampson for life, then to the use of Alice for life, remainder to the use of the first and other sons of the marriage in tail male, remainder to the right heirs of Sir Thomas. The marriage took place: Sampson died leaving a son Thomas; and afterwards, in 1716, a settlement was made in pursuance of the articles, conveying to Thomas an estate
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Case of the Ruddington estate.
Leaving there the statement of title to the Leake and Thorpe estates, the bill proceeded to state the title to the Ruddington estate, in the county of Nottingham. Sir Thomas Parkyns, already mentioned, his first wife, by whom he had his son Sampson, the father of Thomas, both above-mentioned, being dead, by a settlement in 1727, made on his marriage with Jane Barratt, conveyed the Ruddington estate, not mentioning the manor, to the use of himself for life, and created a term of ninety-nine years to secure the payment of an annuity of 200 l. to his intended wife in certain parts of the premises; and a term of 500 years in the rest of the premises, remainder to the first and other sons of the marriage in tail male, remainders over, reversion in fee to himself. The settlement recited that the premises were contiguous to the mansion-house and lands in Bunny, which stood limited to the issue male of Sir Thomas by his first wife, which issue was the above mentioned Thomas, the son of Sampson; and directed that Thomas, or the person entitled to the Bunny estate after the death of Sir Thomas, should have the option to purchase the Ruddington estate for 13,000 l. to be laid out in the purchase of other estates to be settled to the same uses. The marriage took effect, and Sir Thomas Parkyns, the father of Lord Rancliffe, was the eldest son of the marriage. In 1735, old Sir Thomas, soon after the death of his grandson Thomas, the son of Sampson, which happened on
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Leake and Thorpe estates.
The bill then reverting to the case of the Leake and Thorpe estates, stated that a treaty took place
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The bill then stated various proceedings in Chancery relative to moneys arising out of these
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Prayer.
And the bill prayed that it might be declared that Lord Rancliffe the Plaintiff was entitled in fee to the Leake and Thorpe estates upon the death of his mother; that the settlement of 1776 might be set aside, except as to certain mortgages therein mentioned; and that it might be declared that the Ruddington estate was meant to be devised by the will of old Sir T. Parkyns, and that the Defendant Sir T. Parkyns might be decreed to settle that estate to the uses of the will, or to make satisfaction to the other devisees, and for various accounts.
Answer.
Sir T. Parkyns admitted in his answer that, as it appeared at the time of putting in the answer, Lord Rancliffe was entitled in fee, on his mother's death, to the Leake and Thorpe estates; but that the Defendant discovered the circumstance only in 1799. and he denied the suppression of the will,
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The bill was dismissed in Chancery in 1809 without costs. And from that decree the Plaintiff appealed to the House of Lords.
Argued Feb. 16, 18, 20, 1818.
The two points argued were; 1st, whether the devise of the Ruddington estate raised a case of election; 2d, whether Lord Rancliffe was entitled to the Leake and Thorpe estates, in fee on the death of his mother.
Mr. Hart and Pepys (for Appellants.) If old Sir T. P. had not had the reversion in the Ruddington estate, it would be clear that he intended to pass the whole estate, and that a case of election would have arisen. It is doubtful whether he conceived himself entitled to the manor. In the settlement, 1727, the word manor is not found, but
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Welby v. Welby, 2 Ves Beame 191.
Riddle v. Riddle.
4 Cruise Dig. 519.
Was it possible that one conceiving himself entitled only to a dry, unproductive manor, could have passed it in the words of this will? He would have said, my manor of Ruddington, and nothing else. Then it was hardly possible that the testator, if he intended to pass merely his reversion in the estate, could have introduced the provisions as to waste, the cutting of timber, the 200 l. for the maintenance and education of his sons; as to the jointure and ninety-nine years' term; and as to younger children. These must have reference to the whole estate and a present interest, otherwise the children would be all dead before the provisions could take effect. The case of Welby is a clear authority for us. ( Lord Eldon, C. We must look at the pleadings in Welby v. Welby. According to the print the reversion is expressly mentioned there.) The reversion is not mentioned here; so that our case is the stronger. They will rely on the clause in the will in which he confirms the settlement. But that is referrible merely to the provison for his son George, and means only—“I do not mean to touch the provision which you have under the settlement.” And suppose he did mean to confirm the whole settlement, he even there evinced his anxiety that the Ruddington estate should go with the rest of the family estates: and then Lord Rancliffe, if this be not a case of election, is entitled to the benefit of the provision in the settlement, and to purchase at the price there mentioned. Then the provision as to the boon coals
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Sir S. Romilly and Mr. Wetheral (for Respondents). The original ground was fraud in Sir T. P., but that is now abandoned. As to the Ruddington estate, the question is merely this, whether, when the testator devised, in 1735, in strict settlement, he meant to give an estate which he had no power to dispose of. The rule of equity is, that if a testator shows a clear intent to devise an estate which is not in his power, but which is in the power of the devisee, equity compels him to relinquish all benefit under the will, or leave its provisions undisturbed. But it must be clear that the testator intended to dispose of the
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Then as to the Leake and Thorpe estates. The title of Lord R. rests upon an alleged fraud without an object; that the parties conspired to represent that Jane had the fee instead of a life estate; the estate yielding only 338 l. a year, subject to a mortgage for 3,000 l. and 4,000 l. for portions, making 7,000 l. which was more than the value of the estate. A fraud to get an estate subject to all these incumbrances was unintelligible, and a mistake was no less so. Now the fact was, the father was seized in fee of the estates in reversion, expectant on the death of Elizabeth Parkyns, and devised to Jane for life. They knew of the will and its contents, as it was proved by Elizabeth Parkyns. But it must now be taken that it was no effectual will to pass real estate. The attesting clause does not state that it was signed by the witnesses in presence of the testator; and though it is not necessary that this should be stated, yet it is necessary that it should be so attested: and if the fact was that it was not, then it was not a valid will: and where is the evidence that it was so signed? The will could not prove itself even after the thirty years; the signing not being stated. If the possession had gone according to the will, then it might be presumed that it was a valid will. But here there was no such ground of presumption. There was an adverse possession for forty years, and the question was not raised till the lapse of twenty-four years after the plaintiff came of age. The statement to the legislature is to be accounted for on no other hypothesis than that it was not considered a valid will as to real estate. It does not appear from the
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9 Ves. 24, 32.
1 Ves. 514.
2 Ves. & Beame. 191.
As to the alleged admission, we have not admitted, as a fact, that the will was duly executed; but merely that it so appears on the instrument which you produce; and the answer refers to such proof as the plaintiff may make of it. The will was executed in 1735, when Sir T. P. was only eight years of age; and he speaks only from what appears on the instrument. We could not plead our purchase, for val. con. without notice, because the ground of relief was fraud, and the only answer was, no fraud. If there was any thing wrong, it was a mere mistake; and the case comes to this. He becomes purchaser of an estate for val. con., and has the possession from 1747 till 1800, without any attempt to shake the title. It is said, that it was not an estate in possession, but reversion, and that a plea of purchaser for val. con. without notice ought to state that the party, from whom the purchase was made, was in possession. But there is no distinction in principle. The Court says that, where there is a purchaser for val. con. without notice, it will not relieve; and the case of Walwyn v. Lee was much stronger than this; where the Court, on a bill by the children, refused assistance against a mortgagee in possession. Sir T. P. had no notice. He got an assignment of the mortgage, but had no connexion with the mortgage deeds till 1760. True, there was a representation to the legislature, in 1746, that there was a mortgage; and it has been decided that he who has notice of a deed shall be
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Mr. Hart (reply). As to the point of election, the question is, what is the intent? I do not know that courts of justice are anxious to find property to which the words may apply without raising a case of election, provided the intent is clear to dispose of that which is not the testator's own property, nor in his power. The testator thought he had power to exclude the issue of his first wife, by a codicil cutting them off with a shilling, and he annexes conditions to the possession of certain medals given to the son by another donor: and might he not also think that he had power to dispose
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Friday, Feb. 20.
Judgment.
Feb. 23, 1818.
I think I can also truly represent that, at the commencement of the hearing of this cause, I had
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There are two questions in the cause altogether distinct, and depending on very different principles, both of them, however, questions of so much difficulty, that I shall, with your Lordships' permission, state my own opinion on the question as to the Ruddington estate now, reserving the other point till Wednesday.
Case of the Ruddington estate.
To attend a little to the pedigree of the family: it appears that Sir T. Parkyns, on his marriage with his first wife Elizabeth, made a settlement about the year 1685, as nearly as can be collected, by which the issue male of that marriage were made tenants in tail of the estates comprised in it. His wife, it seems, proved unfaithful, and eloped from him, and he takes notice of that circumstance in a codicil to his will.
In 1727, he married Jane Barratt, and had issue a son, Thomas, &c.
By his first wife it appeared that he had issue a son, Sampson, and also other issue not material to state, as they all died without issue, and there was no claim under them. Sampson married Alice Middlemore, and had issue Thomas, his son, who married Elizabeth Woodroffe, who is often mentioned in these deeds. Thomas made a will, which has no bearing on this question, and died. Then in 1800 the state of the title was, that Sir Thomas Parkyns was tenant in tail of the Ruddington
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It becomes necessary, as to these Ruddington estates, to state that, on the 2d and 3d March, 1697, Thomas Winford conveyed to Sir Thomas Parkyns and his heirs “all that the manor and lordship of Ruddington, in the county of Nottingham, with the rights, members, and appurtenances thereof: and all the several messuages, cottages, lands, &c. in Ruddington aforesaid, then, or late in the several tenures or occupations,” of the several persons named:
“and all other the manors, messuages, mills, lands, &c. of the said Thomas Winford, or wherein he or any person or persons in trust for him had any manner of estate in reversion, remainder, or expectancy in Ruddington aforesaid.”
This conveys not only all the lands, &c. in the possession of Winford, but ipsissimis verbis, the manor or lordship of Ruddington, with the rights, members, &c. and all other the manors, messuages, mills, lands, &c. which he had in reversion, remainder, or expectancy in Ruddington; and one need use no argument to show that it is to be presumed primâ facie, that Sir Thomas meant in his will of 1735 to pass only what was his own, if he had property answering the description in the instrument; and, if you cast your eye over this deed, you will find the same distinction made as in the will of 1735, with respect to lands and manors.
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1727. Settlement of old Sir Thomas Parkyns on his second marriage, by which estates tail are given to the sons of the marriage.
Being then possessed of this estate, he makes the settlement of 1727 on his marriage with Jane Barratt. The parties to that deed were himself of the first part, Jane Barratt of the second part, John Bley and Samuel Sterropp, of the town of Nottingham, gentlemen, of the third part, George Barratt, father of Jane, and John Walters of the fourth part, Henry Sherbrooke and Richard Porter of the fifth part, and Samuel Smith and Abel Smith of the sixth part. And, by that settlement, in which no mention whatever is made of the manor of Ruddington, Sir Thomas Parkyns, for the considerations and purposes therein stated, conveys all the messuages, farms, or tenements, &c. situate at Ruddington; and the reversion, &c. to hold to Bley and Sterropp and their heirs to the use of himself, Sir Thomas Parkyns, for life: and as to part of the said messuages, farms, lands, &c. to the use and intent that Jane Barratt, after the decease of Sir Thomas, should take thereout a clear annuity of 200 l. for her jointure and in bar of dower; and then to the use of George Barratt and Joseph Walters, &c. for ninety-nine years, for better securing the regular payment of the annuity: (here I mark the circumstance that Jane Barratt became entitled to an annuity of 200 l. which over-rode all the limitations made by the will:) then as to the lands, &c. charged, to the use of Sherbrooke and Porter, &c. for 500 years, sans waste, upon the trusts after mentioned; remainder to the use of the first and other sons of the marriage successively in tail male, remainder to the use of Samuel and Abel Smith, &c. for 600 years, sans waste, upon the
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Will of old Sir T. Parkyns. Aug. 18, 1735.
And the trusts of said term of 500 years are declared to be for raising portions for the younger children of said marriage, viz. 1,000 l. for one younger child, 1,600 l. for two younger children, and 2,000 l. for three or more younger children, the said portions to be paid at such times and in such manner as in the now abstracting indenture is mentioned: provided that if any younger child entitled to a portion should die or become an eldest son before his or her portions should become payable, his or her portions to go to the survivors: provided, that if all such younger children should die before any of their portions should become payable, then such portions not to be raised, but sink into the estate; and if there should be no younger children of said marriage, or being such, all of their portions should be paid by the person entitled to the reversion of the premises expectant on the determination of said term of 500 years, then the said term to cease: and the trusts of said term of 600 years were declared to be for raising such portions for daughters of said marriage (in case of there being no issue male) as are above appointed to be raised for the younger children of said marriage, payable as in the now abstracting indenture is mentioned, with the like provisoes, as to the shares of such daughters as should die before their portions became payable, as are above mentioned respecting the shares of the younger children of said marriage; the said term of 600 years to cease in case of there
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Unto John Sherwin, of the town and county of Nottingham, Esq. Richard Porter of Arnold, in the county of Nottingham, Esq. Abel Smith, of the town and county of the town of Nottingham aforesaid, Esq. George Barratt of the city of York, woollen-draper, and Samuel Sterropp of the town and county of the town of Nottingham aforesaid, Gent. their executors, administrators, and assigns, for the term of ninety-nine years, to commence from his (testator's) death, upon the trusts, and to and for the ends, intents, and purposes thereinafter mentioned, &c. And from and after the determination thereof.
To his eldest son, Thomas Parkyns, by his then wife. Dame Jane Parkyns for life; remainder to the said John Sherwin, Richard Porter, Abel Smith, George Barratt, and Samuel Sterropp, their heirs and assigns, for the life of the said Thomas Parkyns, upon trust, to preserve contingent remainders; remainder to the first son of the body of his said son Thomas Parkyns, lawfully begotten in tail male; remainder to the 2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, and all and every other son and sons of the body of his said son Thomas Parkyns, lawfully begotten, severally and successively, in tail male; remainder to George Parkyns, testator's second son, for life;
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Pre. in Ch. 265.
Election.
1 Ves. Jun. 514.
Now the utmost construction that can be given to this, primâ facie, is that he means to dispose of such estates at Ruddington as were his own; and these were only the manor and the reversion. But although it appears, primâ facie, that he meant to pass only what was his own, yet if the context shows that he means to propose a case of election, and chooses to consider that which was not his own as his own, for the purposes which he had in view
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Then he declares the trusts of a term to be that the trustees should lay out the rents and profits of
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Then he empowers his son to give a jointure to a wife; and it is not immaterial, when we come to consider the case of the Great Leake and Thorpe estates, that the jointure was to be 100 l. for every 1,000 l. fortune brought by the wife. This I say is material, because you will see that the value of the fortune of Jane Parkyns is, upon this principle, such as to entitle her to such jointure or nearly so as was provided for her by the settlement made after the act of parliament, of which your Lordships heard so much in the course of the argument.
Then there is a power to Thomas Parkyns, &c. to demise for twenty-one years at the rents mentioned, together with certain boons and services to which the tenants were to be bound: and it has been said that, connecting this with the boon coals afterwards mentioned, Sir Thomas devised an immediate estate in the lands and premises at Ruddington. My opinion, however, is that, when a
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Then he directs his trustees to advance a sum not exceeding 200 l. to each of his sons for their maintenance while at school, the university, or inns of court; and it has been contended that, considering the fortunes to which the sons would be entitled, he could not have thought it necessary to give the 200 l. for the maintenance and education of his sons, unless he had intended to raise a case of election. But we should make wild work if we were to draw such an inference from the mere circumstance that the father gives so much for the maintenance and education of his sons, meaning merely that they should not have the power of spending more during their minority.
Then the testator imposes conditions with respect to certain guns, iron trunks, and also certain medals which the son Thomas had as the gift of his grandfather. That raises a clear case of election as to the medals, which the son had as the gift of another person: and the single question is this, whether, as he has raised a case of election as to these medals,
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Then comes the directions with respect to the boon coals, and it has been argued that because this applies to both the Bunny and Ruddington estates, you are to shut out of the will the words “every thing therein contained;” but it is impossible to give that provision an effect which would destroy other parts of the will.
I notice also that he here mentions a gentleman of the name of Weekes who, it appears, had married his sister, and this is material with respect to the Leake and Thorpe estates, as that gentleman must have known something as to the titles.
Then he gives rings of a certain value to the judges, &c. And here I notice a circumstance which has some, though not much bearing upon the other question, but which is not to be overlooked, that among those to whom he gives rings Francis Lewis is mentioned, who was the trustee in the will of Thomas Parkyns, and therefore must have been on terms of intimacy with the family, and have had some knowledge of its affairs. In that same month, August, 1735, the day following the day of the date of his will, he takes into consideration the possibility of his first wife Elizabeth having brought into the world any children after she left him, and he says in a codicil “Whereas Dame Elizabeth Parkyns my late wife did, for the three last years before she left Bunny, elope from my bed and lie separate in another, and afterwards eloped and
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In the third codicil, he gives a further Sum of 500 l. to his daughter Ann, He does not say there that this was to be in addition to her provision under the settlement; but having given her before 1,000 l. which he says was in addition, so this too must be in addition. But in the last codicil, that of 1740, he does say that the sum there given to Ann was in addition. And it is
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This is the whole of the will; and the question here is, have you that demonstration plain or necessary implication, looking at the whole of this will as I have stated it, that he meant to dispose of the estates tail of his sons under the settlement, and to convert them into estates for life only, with remainders to their first and other sons in tail? Have you that manifest declaration plain? With respect to that, I say that it is difficult in any case to apply the doctrine of election where the testator has some present interest in the estate disposed of, though it may not be entirely his own. In this case he had a present interest: he has a manor in which, for any thing that appears, he had the entire fee; he has the reversion in fee of the whole estate, and he has expressly confirmed the settlement of 1727 in all its parts; so that it was impossible in this case to contend that he forgot the settlement, which, with every thing therein contained, he expressly ratifies.
1 Ves. Jun. 515.
1 Ves. 523.
There are many cases under this head; but they all amount to what I have already stated. One case which I argued, in 1792, was referred to, that of Blake v. Bunbury. The case was this: Sir Patrick Blake, in a settlement made on his marriage in 1762, for the considerations therein mentioned,
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“And I do hereby ratify and confirm the settlement whereby my younger children, J. H. Blake, and Annabella my daughter, by my former wife, are entitled to 20,000 l. in equal proportions;” and it was argued there, as it might be here with respect to George and Ann, that if he meant to confirm it in that particular, and not in other respects, a case of election arose. But that is not the whole; for he further says; “So far as the same relates to my said children.”
So then he, having no present interest in the St. Christopher's estate, gives these interests, and takes notice of the settlement, and confirms it, so far as relates to the younger children; from which it was argued that he did not mean to confirm it, in all respects, as he has here done, when he says, that he confirms it and every thing therein contained. The Court says:
“It is the settled doctrine of a court of equity, and agreed on all sides, that no man shall be allowed to disappoint a will under which he takes a benefit. To put the strongest instance at once, if a man takes upon himself to devise to B. lands to which he has no colour of title, and which are in the possession, or are the inheritance of A. to whom some part of the testator's estate, real or personal, is also devised; A. must either
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renounce, to the extent of his own estate, the estate devised, or must convey his own estate to B. It is but a modification of the same case, where a man has subjected his estates to special limitations or incumbrances, and by his will makes a new disposition of the same estate, free and discharged from the incumbrances, or under different limitations: the incumbrancers deriving other interests under the will, if they will take by it, must not disappoint it; but must permit the estate to go in the new channel, and as free from incumbrances as the testator intended. Therefore, as to the argument from the supposition, that this had been a mortgage instead of a rent charge, if it was so, and the estate had been disposed of by the testator, free from the mortgage, the case would be the same, only in different words, for a mortgage comes under the head of incumbrance. This putting a devisee to his election, however reasonable and just it may be, was certainly a very strong operation of a court of equity; and I agree, the intent of the testator to dispose of that which is not his, ought to appear upon the will, with such explanation, however, of the primâ facie appearance as the law admits; and that it ought to appear by declaration plain or necessary conclusion from the circumstances: and no man ought, under pretence of this rule, to be spelt or conjectured out of his property. But as on the one hand we are not to do it by conjecture; so on the other, we are not to refuse our assent to that moral certainty and demonstration which, in such cases as the Page: 189↓
present, the general object of both instruments, the nature of the subject, the scope and purview of the will, the observations upon the particular clauses, and the force of the expressions construed, according to their natural import, may produce.”
The Court was of opinion that that was a case of election. These are the principles, and such the determination.
Vid. Welby v. Welby, 2 Ves. Beam. 191.
Here it was not necessary to mention the reversion. I think, it would pass under the general words, whether particularly mentioned or not, for we must suppose that the testator meant to pass all belonging to himself that may be included in the words. But I ask whether, looking at the whole of this will taken together, it can be justly said, that the testator meant to pass an immediate interest, having the reversion only? This is a case, in which the testator expressly declares that he means to confirm the settlement and every thing contained in it; and not one in which he says that he confirms it in one particular, leaving it open to the inference, that he means to destroy it in all other respects. That is not all. It is the case of a testator making a provision for his younger children, in addition to that which they had under the settlement, and, at the same time, confirming the settlement not as to them only, but as to every thing therein contained; and not only that, but of a testator who had a manor which would satisfy the words of the devise.
I do not deny, no man can reasonably deny, that, if the testator had been asked, when he made his will, and it had been read over to him, whether he meant to devise the reversion only, or the possession
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If then there is an ambiguity, we must, notwithstanding, confirm the settlement in all respects as the testator himself has done, and my humble opinion on that point is exactly the same as it was in 1809.
Feb. 25, 1818. Case of the Leake and Thorpe estate.
Additional circumstance as to the case of Ruddington estate.
But first permit me to mention a circumstance, with respect to the Ruddington estate, which I forgot the other day, a circumstance not essential to the decision of that question, but of sufficient importance not to be overlooked. The question there was, whether the will of Sir T. P. in 1735, proposed a case of election as to the Ruddington estate, that is, whether after having settled the Ruddington estate upon his first and other sons in tail male, he meant to devise that estate under the will; and his son Thomas, being himself tenant in tail, independent of the will, whether, if he chose to take under the will, he was bound to allow his interest in that estate to be reduced, so as to make him tenant for life with remainder to his first and other
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Title to the Leake and Thorpe estates. 1707.
Articles on the marriage of Sampson Parkyns.
Settlement in 1716.
Now the title to the Leake and Thorpe estates seems to depend on the following instruments. The first of these is, the articles of agreement made on the marriage of Sampson Parkyns, the son of Sir Thomas Parkyns, by his first wife, and Alice Middlemore, reciting that Alice Middlemore was a minor, and seized of two parts, and entitled in reversion, on the death of her mother, to the other third part of certain premises mentioned; and that the mother was willing, in consideration of the marriage, to release her interest in the premises. By that instrument, it was witnessed that the mother covenanted to release accordingly, and that Alice should, on her coming of age, sell the premises; and that the moneys arising from the sale should be paid to Sir Thomas Parkyns, the father of Sampson: and Sir Thomas and Sampson Parkyns covenanted to settle lands in the counties of Nottingham, Lincoln, Derby, &c. of 100 l. yearly value for every 1,000 l. that might be received by Sir Thomas from such sale, to the use of Sampson Parkyns for life; remainder to the said Alice for life; remainder to the first and other sons of the marriage in tail male, with several remainders over; the ultimate remainder to Sir Thomas Parkyns in fee. The marriage took effect, and Sampson died, leaving Alice and one son, Thomas Parkyns, the maternal grandfather of the Appellant's father.
These articles were partly carried into execution
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The next instrument to be considered is that of 1730, made upon a recovery about to be suffered by Thomas, the son of Sampson, who was tenant in tail of the premises under the settlement, which did not include the manor and the mansion-house. Thomas conveys to Thomas Woodroffe, with whom he was nearly connected by marriage, all that the manor or lordship of Great Leake, or East Leake, with the rights, &c. thereof; and the capital messuage, or mansion-house, in Great Leake, and the farms, lands, &c. in the occupation of the several persons mentioned, in Leake and Thorpe, in the county of Nottingham; meaning, therefore, to convey not merely the lands, but the manor and mansion-house in Leake. And the question is, whether it must not be taken that he had an estate tail in the manor and mansion-house, acquired in some manner which does not appear. But it is not at all uncommon to include, in fines and recoveries, property,
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1731. Settlement by Thomas Parkyns and Elizabeth, his wife.
Then, on the 15th Nov. 1731, articles for a settlement were agreed upon, which, together with the settlement afterwards made in pursuance of them, deserve particular attention, between Thomas Parkyns, and Elizabeth his wife, of the first part; Sarah Woodroffe, mother of Elizabeth, of the second part; and Saville Cust and Thomas Woodroffe of the third part; reciting the indentures of mortgage to Farr; and that, for the more effectual securing the repayment of the mortgage money, Elizabeth Parkyns, at the request, entreaty, and persuasion of Thomas Parkyns, had, together with the said Thomas, acknowledged and levied the fine already mentioned: therefore, the articles witnessed that in consideration of Elizabeth Parkyns having levied the fine and barred her dower, and of 500 l. paid to Thomas Parkyns by Sarah Woodroffe, Thomas Parkyns covenanted to convey to Saville Cust and Thomas Woodroffe, the manors, lands, &c. in Greak Leake, and Thorpe in the Clotts, to the use of Thomas Parkyns for life, remainder to the use of Elizabeth, his wife, for life. And then, as to the Thorpe estate, to the same persons for a term of 500 years, on trust to raise thereout 4,000 l. for the daughter or daughters of the marriage; and,
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And as for and concerning all those lands, tenements, and hereditaments lying in Thorpe in the Clotts, or in the fields, liberties, and precincts, and territories thereof, from the death of said Thomas Parkyns and Elizabeth his wife, or the survivor;
To the use of said Savile Cust and Thomas Woodroffe, their executors, administrators, and assigns, for 1,000 years, sans waste, upon the trusts, &c. therein-after declared; and after the expiration or other sooner determinaton of said term,
To the use of said Thomas Parkyns, his heirs and assigns for ever.
The said term of 1,000 years was thereby declared to be limited to said Savile Cust and Thomas Woodroffe as aforesaid, upon trust, in case there should be one or more daughter or daughters of the body of said Thomas Parkyns, on the body of said Elizabeth Parkyns begotten, living at the decease of said Thomas Parkyns and
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Here your Lordships will observe, that the daughter's portion was charged only on the Thorpe estate; and then, the mortgages to Farr affecting both the estates, she had a right to say to the mortgagee, you shall not apply any part of my fund to the payment of your mortgage, but shall be restrained to the other estate until you show that it is not
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And this raises the question whether, when a man makes a provision in his will, it is to be taken as an advance in his life-time. And it is singular, that it has been so held, though the provision cannot take effect till after his death. Then a recovery is suffered in May, 1734, by Thomas Parkyns, of the mansion-house and lands in Great Leake, then late in the occupation of his mother Alice Parkyns, to the use of Thomas Parkyns and his heirs.
This is declared to be a recovery of his own property only; and I notice that, as it may admit of a different consideration from the other estates. In November, 1734, a further mortgage for 400 l. was made to Farr.
May 9, 1735. Will of T. Parkyns, who died June 1, 1735.
The title so standing up to 1734, a will was made by Thomas Parkyns in 1735, the same year in which the will of Sir T. Parkyns was made: and the short period that intervened between the death of Thomas and the will of Sir T. P. is to be noticed with reference to the probability or improbability of any acts done by him, Sir T. P. and Elizabeth, the widow of Thomas, in the interval. He directs that his estates at Buckminster should be sold by his executrix, for payment of his debts; she having this character which connected her with the
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There is a circumstance with respect to the attestation which deserves to be attended to; for your Lordships know that it is necessary that the three witnesses should sign in presence of the testator. They state here, that the testator signed it in their presence, but not that they signed in presence of the testator. But if it is proved that they did actually sign in the presence of the testator, the not recording that circumstance will not vitiate the will. But when the will is produced in a court of justice, it is necessary that the proof should be made; and if it were necessary for the decision of the question, it would be sent to a court of law, where a will, thirty years old, if the possession has gone under it, and sometimes without the possession, but always with the possession if the signing is sufficiently recorded, proves itself. But if the signing is not sufficiently recorded, it would be a question whether the age proves its validity; and then possession under the will, and claiming and dealing with the property as if it had passed under the will, would be cogent evidence to prove the duly signing, though it should not be recorded.
In 1735 a transaction took place, which it is difficult to account for, as to the mortgages to Farr, if the title to the estates rested upon the will, Elizabeth having only a life estate, her daughter a life estate, with remainder to F. Lewis in trust for others; the power of Elizabeth extending only to
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It was thought adviseable to bring Jane, the daughter of Thomas, the son of Sampson, the son of Sir Thomas Parkyns, by his first wife, and Sir Thomas Parkyns, the son of Sir Thomas Parkyns, by his second wife, together by marriage, and, they being minors, it was conceived, that an act of parliament was necessary to enable them to make a settlement. It appears that in the year 1746 application
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Petition.
“Petition to the Lords Spiritual and Temporal, of Sir Thomas Parkyns, Baronet, an infant, eldest son, and heir of Sir Thomas Parkyns, late of Bunny, in the county of Nottingham, Baronet, deceased, and of the said John Sherwin, Richard Porter, and Samuel Sterropp, his trustees and guardians; and also of Jane Parkyns, spinster, an infant sole daughter and heir of Thomas Parkyns, Esquire, deceased, who was son and heir of Sampson Parkyns, Esquire, deceased, who was in his life-time eldest son and heir apparent of the said Sir Thomas Parkyns, deceased, by dame Elizabeth, his first wife, deceased; and also of Elizabeth Parkyns, widow, mother of the said Jane Parkyns the infant.” The petition, after stating the will of the said Sir Thomas Parkyns hereinbefore in part recited, stated—
“That the said George Barratt died in the lifetime of the said Sir Thomas Parkyns, deceased, and that the said Abel Smith did after his death decline and had never acted in the said trust:
“That the said petitioner, Jane Parkyns, was seized and entitled to her and her heirs, of, in, and to a share or shares in the New River, brought from Chadwell and Amwell to London, valued and estimated at 1,000 l. and of one undivided moiety of an estate at Sutton Bonnington, in the county of Nottingham, of the yearly rent of 60 l. but charged with an annuity of 20 l. for one life; and that she was also seized, to her and her heirs in reversion expectant on the death of the said
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That the said John Sherwin, Richard Porter, and S. Sterropp, at the instance and on the behalf of the said Sir Thomas Parkyns, the infant, and the said Elizabeth Parkyns, at the instance and on the behalf of the said Jane Parkyns, her daughter, had respectively entered into a treaty for the marriage between the said Sir Thomas Parkyns and Jane Parkyns, the infants, and for settling a competent jointure on the said Jane Parkyns, and making provision for the daughters and younger sons of the said intended marriage out of the estates of the said Sir Thomas Parkyns, the son, in pursuance of the power given him by his father's will; and also for settling and disposing of the lands and real estate of the said Jane Parkyns, for the benefit of her and the said Sir Thomas Parkyns her intended husband, and their issue:
But that as the said Sir Thomas Parkyns the son, and Jane Parkyns, had neither of them attained the age of twenty-one years, such mutual settlement could not be made without the aid and authority of parliament. The petitioners therefore prayed, that a bill might be brought in to enable them, the said Sir Thomas Parkyns and Jane Parkyns, the infants, with the consent of the other petitioners, their guardians and trustees, to make such settlement at their inter-marriage as aforesaid.
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Act of Parliament.
This petition was referred to the Lord Chief Baron Parker and Mr. Justice Abney, and, on their report, an act was passed, reciting, “that the said Jane Parkyns was seized and entitled to her and the heirs of her body, remainder to her and her heirs of, in, and to a share or shares in the New River brought from Chadwell and Amwell to London, valued and estimated to be worth 1,000 l.; and also seized or entitled to her and her heirs of, in, and to an undivided moiety of the manor of Sutton Bonnington, and of divers lands, tenements, and hereditaments situate, lying, and being in Sutton Bonnington aforesaid, which are therein mentioned, to be together of the annual rent of 120 l. or thereabouts, and subject to annuity of 40 l. payable to Stanhope Parkyns, Gentleman, for his life; and that she was also seized to her and her heirs in reversion, expectant on the death of Elizabeth Parkyns, widow, her mother, subject to a mortgage or security made to Sir Henry Harper, Baronet, for the sum of 3,000 l. and interest of and in the manor of Great Leake otherwise East Leake, and divers lands, tenements, and hereditaments, situate, lying, and being in Great Leake otherwise East Leake, and Thorpe-in-the-Clotts, in the county of Nottingham, of the yearly value of 338 l. or thereabouts:” and it was thereby enacted, that it should be lawful for Sir Thomas Parkyns, with consent of his guardians, to settle 400 l. a-year jointure on Jane, out of the
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Saving clause.
On the one hand, it was contended that it was enough to say that the defendant was entitled under this act. On the other hand, it was contended that the act only gave her, Jane Parkyns, such power as she would have had if adult; and that it was not intended to give her a greater power than she had before, but merely to remove the disability of infancy. And there was this saving clause:—
“Saving to the king, his heirs and successors, and to all and every person and persons, both politic and corporate, his, her, and their heirs, successors, executors, administrators, and assigns, (other than the said Sir Thomas Parkyns, his heirs and assigns, and the trustees, of said term of ninety-nine years, limited of said premises as aforesaid, their respective executors, administrators, and assigns, and all other persons claiming under the devises
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and limitations of the said will, and other than the said Jane Parkyns, and the heirs of her body, and her right heirs, and all and every other person and persons seized in trust, for her and her heirs), all such estate, right, title, interest, claim, and demands, of, in, to, or out of the premises, made subject to the powers given, vested, created, and established by that act, as they or any of them respectively had before the passing that act, or could or might have had or enjoyed, in case the same had not been made.”
And it was contended at the bar that the Appellant was excluded from this saving, as being the heir of her body. On this I observe that he was heir of her body, and heir general; but it is not so clear that he was excluded as her eldest son; and he claimed as a purchaser, as her eldest son, under the will of his grandfather. For instance, if Jane had done any act incurring a forfeiture in his life-time, he could maintain a suit for the property as claiming under the will of his grandfather; and not claiming as heir of her body or heir general, which he could not do, on the maxim that nemo est heres viventis.
No bill was brought till 1800. If they were right in their construction of the act, that it did nothing more than remove the disability of infancy, these provisions can have no more effect than they would have had if made by the parties when adult. But it is still necessary to look at the act in this view. You cannot consider the guardians as making any fraudulent representations, and against their knowledge, unless it is proved, to induce the legislature to pass this act. Jane had an estate for life under
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It has been contended, that the answer of the defendant admitted that the will was duly executed, which leads at present only to this observation, that the Court must take care that the admission is very clear, before the defendant can be concluded by it.
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In this examination I have two objects in view: 1st. To satisfy both parties, if possible, and with the more anxiety, as this is a judgment of my own. 2d. That when disputes arise between persons so nearly connected, these may be set at rest; or if not, that they may know that as much industry as possible has been bestowed upon the subject: and God knows it is difficult to satisfy both parties.
1736. Release from Elizabeth Parkyns, the widow of Thomas, to old Sir T. Parkyns.
I now proceed to the deed of 1736, made the year subsequent to the will of Thomas, and of old Sir Thomas, who died at a later period; and that is made between Elizabeth, the widow of Thomas Parkyns, and Sir Thomas Parkyns. This deed recites her character of executrix under the will of Thomas, and speaks of the residue of the money arising from the sale of the estates which the will had directed to be sold by the executrix, and which could not have been sold by her without the intervention of somebody else, unless the will had been duly attested. She releases certain premises in Leake, as executrix and devisee, in both characters; and covenants for her daughter Jane, &c. &c. And this deserves attention for another reason, that one of the witnesses to the deed is Sterropp, who was a trustee in the will of old Sir Thomas, and probably, therefore, knew the state of the titles to the estates of both parties. How far this may go to fix notice upon Sir Thomas, the son, will be a question, and a very material one. But it would be dangerous to say, that merely because a man signed a deed, he therefore knew all its contents. That would be
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Then the mortgage is transferred, as I before observed, to Eardley Wilmot, and from him it is transferred to Sir Thomas Palmer: and there is a proviso that the equity of redemption should be reserved to Elizabeth in fee. This is a great inaccuracy; but in equity she could take it only for the benefit of the person who was really entitled. Then the mortgage is transferred from Sir Thomas Palmer to Richard Farrer. That name suggests another observation. In case Jane died without issue, the estate under the will would belong to Harriett, the wife of Richard Farrer. She then was as near a relation as any that existed, and the wife of a professional gentleman: and, on the death of Jane without issue, she would be entitled: and yet he stands by, and does not oppose the act of 1746; a very extraordinary thing, if Jane had only a life estate, and, on her death without issue, his wife would be entitled, that he should stand by, as if Jane had been entitled in fee. Then in 1780 the mortgage is transferred from the heir at law and surviving executor of Richard Farrer, to the Rev. Richard Farrer: and in 1792 it is transferred from the Rev. Richard Farrer to John Wright, who declares that his name was used only as trustee for Sir Thomas Parkyns, who insists that he has a fee simple in the equity of redemption, with the mortgage attendant upon it, and that the estate is his own entirely. But Lord Rancliffe, on the other hand, says, that the estate is given to him by the will of Thomas Parkyns, and is not affected by all these
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Mar. 2, 1818. Frame of the Bill.
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I mention these matters for the sake of this observation, that this case is not now founded on actual fraud or disguised concealment; and it is always a satisfaction when it appears that there is no ground for imputations of that description; and that, if there is a miscarriage, it is owing to complete ignorance on all sides. But it is a quite different consideration whether, when there is innocent
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The bill then, after stating the settlement of the Ruddington estate in 1727, the will of Sir Thomas Parkyns, the act of parliament, and subsequent settlement made on the marriage of Sir Thomas the son and Jane Parkyns, takes notice of the proceedings in Chancery till the rents and profits of the Ruddington estates were separated from the others, which led to the remark that the rents and profits had been directed to accumulate after payment of 200 l. per annum to each of the sons. But if the Ruddington estate belonged to Sir T. P. the son in tail, and he was not put to his election, it was contended, and that circumstance must be considered and disposed of, that Sir T. P. ought to have received the whole of the rents and profits of that estate, without contributing any thing to the maintenance. And the bill charged that, if the Ruddington estate was his, there had been inaccurate treatment in the Court of Chancery of these rents and profits. Then the bill charges that Sir Thomas kept back the will, and that he, and all those concerned for him, knew the contents thereof, &c. I take notice of these charges merely to state again that there is now, whatever might have been the view first suggested, no ground for the imputation of actual fraud; and that the whole amounts only to ignorance. And, indeed, on looking at the whole of the circumstances, I cannot find, except perhaps from conjecture, upon which I dare not act, the slightest reason to conclude that any one acting for
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The fraud was denied by Sir T. P.; and it was difficult to believe that he, then only eighteen years of age, could have known any thing of this will; and he says he never did know of it till 1799, when two copies of it were found, one among title deeds
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The bill also states the mortgages, and the transference of them, till they come to Wright, declaring himself a trustee for Sir T. P. Wright is not a party to this suit: and I remark that, as this bill is not a bill for the redemption of a mortgaged estate, a circumstance very material with reference to a late decision in one of the most important cases that ever came before the Court of Chancery.
The bill takes no notice of the species of equity which those claiming under Sir T. P. would have, though they should not be entitled to hold the estate. For, when the marriage with Jane took place, if she was not entitled in fee to the estate of Thorpe, she was entitled to 4,000 l. portion out of it; with this question hanging about it, whether her life estate was not a pro tanto advancement. It is true that this, along with another estate, was subject to a mortgage for 3,000 l. But she was entitled to say this: the mortgagee has two funds, and my portion is charged on one of them; and if that one is not sufficient to pay both of us, then I am entitled in equity to compel the mortgagee to resort to the other fund, so that the payment of both may be worked out. Then the Great Leake estate also was clearly subject to this 3,000 l. mortgage, and this charge of 4,000 l.: and if she had the estate in fee under the will of her father, T. Parkyns, or if that will did not pass the estates, I can understand how it was that the portion was not raised, because it merged in the fee. But if she was only tenant for life, it seems most extraordinary,
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Why, then, if the bill fails on the ground of fraud, and of notice at the time of the marriage, then you have to consider the case with reference to the inferences in fact, and in law and equity. 1st. As to the inference in fact, whether the will of Thomas is the foundation of the title to the Leake and Thorpe estates? 2d. In law and equity, whether it can be so taken by a jury if the question were to
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Then the deed of settlement of 1776 was stated in the pleadings, and you will have to consider the effect of that deed, by which a valuable interest was given to Lord Rancliffe: and though that settlement does not notice the will, as it could not, since it appears that all parties were quite ignorant of it, that supposes that a family arrangement as to the estates was made: and then you are to consider whether it would be fair at this day, when the deed gave that valuable interest to Lord Rancliffe, if the question should not be considered as having been settled with reference to that arrangement. In 1776 Lord Rancliffe came of age, and he does not file his bill till 1800, and he seeks to set aside in part the settlement of 1776. How that can be set aside as to one part, and not as to the rest, is not mentioned. But there is no ground upon which that can be disturbed; and, on the other hand, it cannot be said that there is any thing in it that bars relief, if due upon other grounds. The bill was then altogether founded on fraud: but the Court might judge upon that state of the pleadings, what was the effect of innocent ignorance; and if so to be considered with respect to the Leake and Thorpe estates, you are to say what is the true doctrine of equity in that view of the case, regard being had to the circumstance that Jane ought to have had the
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Thus then the case is to be considered with a view to the nature of the bill in some measure; and I am anxious that this should not escape notice, lest any doctrine now to be stated should be thought to bear either one way or the other upon certain cases in the Court of Chancery, particularly on one case which has excited a great deal of attention, and as to which there prevailed a great difference of opinion. I wish to guard against the notion, that the doctrine in this case trenches one way or the other on the doctrine understood to be established on that case; and I am anxious it should be known, that the question here turns on the particular facts of the case connected with the nature of the bill.
Mar. 4, 1818. Doctrines in law and equity on which the case depends.
Notice and effect of will of Thomas Parkyns.
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The will directed the estates in Buckminster and Sawston to be sold by the executrix. The testator lived but a very short time after having made his will; and yet, from documents lately discovered, it appears probable, that he had sold, or contracted to sell, these estates in his life-time; and I request your attention to the circumstance, that instruments were brought forward in the course of the proceedings, and properly brought forward, which were not noticed in the first stages of the cause, and could not be then brought forward, because they had been only subsequently discovered, and were not known at first. The will directs the Buckminster and
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With respect to Elizabeth, I again say, that she must have had notice of the will. The deed of 1736 takes notice of the will, and also of her character as devisee: and there are passages which make it very difficult to believe that she had not notice of all his property.
I observe, on looking at my notes, that it was felt, that it might be found difficult to support the limitations to the issue male of Jane, so as to keep the estate in the male line, as these limitations were to the first and other sons of Jane, and their heirs. Suppose she had a son, and he died without a son,
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I therefore beg leave here to say that, if at the time the act was passed, notice of this will had been given to Sir T. Parkyns, or to his agents, so as to bind him to the effect of notice, the amount of it would be this, that he would have had notice that Thomas Parkyns made a will, by which he gave to Jane for life, not the estates in Great Leake, eo nomine, but in this manner, “all my other real estates,” the will not explaining what real estates he had to pass under these words; and I do not apprehend that notice of a will is to be considered as notice, not only of the general words passing “all my other real estate,” but of each particular interest, and that you are to inquire all over the world to ascertain what were the particular interests which he had to pass.
But the question is, whether he had notice at the time of the marriage. And I cannot find any ground to conclude that Sir T. Parkyns, or any one concerned for him, can be said to have notice even of the will, except Samuel Sterropp, and he could only have had notice of the will, such as it is. And then you are called upon to say, that Sir T. P. who was a purchaser for valuable consideration, for the
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But the case here would be still stronger, looking at the circumstances as they stood at the time of the marriage. For though I believe that at the bottom there was no intentional fraud or concealment on either side, yet if you were to ask who had or had not notice, there could be no pretence for saying that Sir T. Parkyns had notice personally, and it might be that none of these concerned and dealing for him had notice: but if the fact be, that the will is to have the effect contended for, it is impossible to say that Elizabeth, who was acting on behalf of Jane, did not know of the will, and that the effect of it was to give Jane only an estate for life; and she, Elizabeth, was tenant for life antecedent to the will, and is expressly stated so to be in the act of parliament. She who proved the will, and who executed the deed of 1736, in which the will is
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I am now treating the subject as if we were trying the question at law whether the estate passed under the will. You must look at both wills to see who are concerned. Francis Lewis is mentioned in both, as a trustee in the one, as a friend in the other, and a gentleman who was one of those whom Sir Thomas mentions as one of his standing counsel. And when you consider the short period that intervened
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Then when you look at the assignments of the mortgages to a certain class of men whom you cannot suppose to have advanced their money de tempore in tempus without inquiring into the title, the circumstance proves that they must have been aware of the will of Thomas. And a person who has notice of an instrument has notice of every thing which the instrument leads him to know. But suppose the instrument mentions only “all my real estate” generally, without specifying this particular estate, though it might have been included;—and I had been told that the notion that it was included had never been acted on, but the contrary down to the present time, day by day, to
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Query whether this alludes to a bill then depending in the H. C. respecting proceedings in tithe causes.
Admission.
But then it is said that Sir Thomas Parkyns has admitted that this will was duly executed, and that it did pass the estate. I have read the pleadings, and I cannot bring myself to the conclusion that that is the fair effect of the answer. I do not ask him whether the attestation is such as to pass real estate. He might admit as a fact whether the will is perfect. I take the result of the answer, however, to be this, that from certain transactions which had taken place the will appeared to have been proved after the death of Thomas; and that it was mentioned in these mortgage deeds, to which there is no evidence that he had access, and to which he could not have access unless the mortgagees chose, and so it seemed and appeared to have been proved, and executed so as to pass lands, but that he was ignorant of it. But when a man admits in that way, he is only stating what he was advised was the legal effect of the will, even if the admission were without qualification; and then if one were to say that he believed that the will passed this estate, another
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Plea. Purchaser for val. con.
Then it is said that he should have pleaded that he was a purchaser for valuable consideration without notice. Certainly there is a great, difference in point of prudence between pleading this, and running the risk of what may appear at the hearing. If a man buys an estate, and a bill is filed, and a title shown to relief, he may plead that he is a purchaser for valuable consideration without notice; and he must support his plea by denying all the circumstances from which notice may be implied: and if, after all that can be said to charge him with notice, he is hardy enough to swear that he had no notice, and to deny all the circumstances; and he does plead, and refuses to try the question in any other way, then it must rest very much with his own conscience. But if he forbears to plead, and, if it turns out in the progress of the suit that he was a purchaser for val. con. without notice, it is too much to deprive him of the effect of that, merely because he does not stop the suit at first, if it be so in fact.
Mortgage.
Now I come to the assignment of 1792; and here I must observe, that the bill has not been framed with an accurate attention to the nature of the case. The nature of the claim is either to redeem the mortgage, or that equity would put it out
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Result of the doctrines as applied to the case.
Then, looking at the settlement of 1776, and at the names of those who were parties to it; and, considering that a very considerable interest in presenti was given to Lord Rancliffe, which he could not otherwise have had in his father's life-time; and that Sir Thomas Parkyns honestly believed he had purchased; and that this is a matter of doubt where the scales strongly incline in favour of the supposition that the East Leake estates did not pass; and then considering the enormous lapse of time, and that a scrutiny from day to day is still discovering new deeds; and considering the relative values of the estates and the charges upon them in 1746, and at the present time, I think this is a case where the Plaintiff could not have any relief at law if the question were to be tried there; and upon that is founded my judgment that this bill cannot be sustained.
Costs.
As to costs I never thought about them in this case, as all the parties were acting very honestly and ignorantly; and still doubting in some measure in such a case, where it is impossible, from the materials before us, to be positively certain that we are in the right. But all that can be expected of a court of justice, in a case where additional documents are drawn out in this manner, during the whole progress of the suit, is to fight with the
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Here then I close, and I have only further to say with respect, to this case, that I have given it the utmost attention and consideration in my power, and done every thing that depended on me to make sure of my coming to a sound and accurate conclusion.
Decree affirmed.