a I conceive, therefore, that under this deed of 1794, title is gained by those who deal with it, which will prevent a court of equity interfering as a court of conscience, against the effect which Earl Horace has, in that deed, given to the deed of 1781. The next consideration is with respect to the frame of this bill; and it is utterly impossible that any decree could be made upon this bill, because the persons who are co-Plaintiffs in this bill have opposite interests. If the estate passed by the will of Horace Earl of Orford, Lord Cholmondeley has nothing to do with it; if it did not pass by the will of Horace Earl of Orford, Mrs. Damer has nothing to do with it. Then in what manner would this question arise? If there was no other objection to it, there might be a bill filed by Mrs. Damer, and another by Lord Cholmondeley; and to the bill filed by Mrs. Damer, Lord Cholmondeley must be a party; and to the bill filed by Lord Cholmondeley, Mrs. Damer must be a party; and the court must decree, that Mrs. Damer had no right, in one instance, and Lord Cholmondeley in another; and, how is this sought to be avoided? By an alleged agreement, and that is directly contrary to law. They are both of them out of possession, and are incompetent to make a bargain upon the subject, affecting any person, except the person in possession; they are both competent to make a composition with him, if he thought fit, but competent to deal with no other person by the statute, which is only an affirmance of the common law upon the subject of pretenced titles, by adding penalties. By that statute, this agreement is not only contrary to law, but would make the persons who entered into it, liable to heavy penalties. 1821. CHOLMONDELEY บ. CLINTON. It is, therefore, impossible for any decree to be made here; you could not make a decree, if nothing was stated, as to the agreement, because the relation of parties would be inconsistent with the decree. You cannot make a decree at the suit of A. and B. which is to destroy the right of A. and give the right to B.; or give the right to A. and destroy the right of B.: it is utterly inconsistent. To avoid that inconsistency, they state this agreement, which is contrary to law, and which you are bound to destroy. Nothing can be more dangerous than such contracts; and the act against pretenced titles, was as much to protect possession, as the statute of limitations; the great object of the law, the policy of the law throughout, has been to protect possession. It is immaterial to the public at large whether the estate belong to A. or B.; but it is material, that the person in possession, should be quieted in that possession, and that all who deal with him, should be protected. I concur in what has fallen from the noble and learned Lord who last addressed you, that this bill ought to be dismissed. I wish to have it understood, that I am clearly of opinion, that upon the statute of limitations, a court of equity has not jurisdiction to entertain the question, because the right was barred by the effect of that statute. I am also clearly of opinion, that the deed of 1794 has such an effect upon the property, that it would be against conscience for your Lordships now to interfere in the manner which is sought by this bill; and I am further of opinion, that upon this bill, framed as it is, with this allegation of an agreement, it is not only impossible for your Lordships to make a decree, but that it would be the duty of your Lordships to dismiss the bill, whatever the rights of the parties were. I do not wish to decide the question upon that ground, but principally upon the operation of the statute of limitations, because that is a question which affects all the titles in the kingdom. The other two are more particularly applicable to the particular case; I feel it therefore more important, that it should be understood, that the opinion of the House upon this part of the case, is founded on the operation of the statute of limitations, and not on the other parts of the case. Decree affirmed. 1821. CHOLMONDELEY V. CLINTON. Cuthbert v. Creasy and others. THE bill filed on the 18th of July, 1820, and amended by order dated 7th of February, 1821, stated that Robert Cuthbert, late of Friskney, in the county of Lincoln, grazier, was, at the time of making his will, and thenceforward to the time of his death, seised of or otherwise well entitled in fee-simple in possession to certain messuages, cottages, lands, tenements, and hereditaments, situate, lying, and being in the said parish of Friskney, and the said Robert Cuthbert being so seised or entitled, and being of sound and disposing mind, memory, and understanding, duly made and published his last will and testament in writing, bearing date the 24th of October, 1767, which was duly executed and attested so as to pass freehold estates by devise, and whereby the said testator devised the said messuages, cottages, tenements, lands, and hereditaments to his wife Ann Cuthbert, for her life, if she should so long continue his widow, with remainder to his sons George Cuthbert and Robert Cuthbert, and their heirs for ever, as tenants in common. That the said testator departed this life about the year 1771, without having altered or revoked his said will, leaving the said George Cuthbert, his eldest son and heir at law. That upon or shortly after the death of the said testator, the said Ann Cuthbert entered into the possession of the said pre 1821. CUTHBERT v. CREAST. mises, or into the receipt of the rents and profits thereof, and continued in the possession thereof, or in the receipt of the rents and profits thereof, till the time of her death, which happened on or about the 9th of September, 1781. That upon or about or within a few years after the time of the death of the said Ann Cuthbert, and in or about the years 1780, 1781, 1782, or 1783, the then churchwardens and overseers of the poor of the parish of Friskney entered upon and took possession of the said premises so devised by the said will of the said testator Robert Cuthbert as aforesaid, and they and their successors have ever since continued in the possession thereof, or in the receipt of the rents and profits thereof, and the present churchwardens and overseers of the poor of the said parish of Friskney now are, and ever since their appointment to their said situations or offices of churchwardens and overseers of the poor of said parish of Friskney have been, in the possession of the said premises, or in the receipt of the rents and profits thereof, and claim to be entitled thereto by virtue of their said situations or offices. The bill further stated, that the said George Cuthbert, the devisee, departed this life a long time ago, and in the lifetime of the said Ann Cuthbert, intestate and without issue, leaving the Plaintiff, his eldest son and heir at law; and the said Robert Cuthbert about forty years ago left this kingdom, and went abroad, and has never since been heard of, but is or must be now presumed to be dead intestate and without issue, and Plaintiff is the heir at law of the said Robert Cuthbert, the devisee, and also the heir at law of the said testator; and Plaintiff is, under the circumstances aforesaid, entitled to the said premises in fee-simple. The bill then stated that the churchwarden and overseers of the said parish refused to deliver up to the Plaintiff the possession of the said premises, and Plaintiff was going to commence an action, by a writ of entry upon an intrusion in the post, against the churchwardens and overseers of the poor of said parish of Friskney, to obtain possession of said premises; and that the Plaintiff had been advised, that it was absolutely necessary, that the writ to be issued by Plaintiff for the recovery of the said premises in the said action should contain the names of the churchwardens and overseers of the poor of said parish of Friskney in office at the time of the death of the said Ann Cuthbert, the tenant for life, or at the time when the said churchwarden and overseers first took possession of the said premises, for the purpose of stating by whom the intrusion was originally made, and that Plaintiff was entirely ignorant what were or was, or are or is, the names or name of the churchwarden or overseers of the poor of Friskney, or any of them, at the time of the death of said Ann Cuthbert, or at the time when the said churchwardens and overseers of the poor of the said parish first took possession of the said premises as aforesaid, and that the Plaintiff, previous to the 13th of November, 1813, and also since that time, had made and caused to be made all possible enquiries and researches, but in vain, to ascertain who were the churchwarden and overseers of the poor of the said parish who first took possession of the said premises as aforesaid. That Plaintiff, accompanied by his solicitor, on the 13th of November, 1819, went to the said parish of Friskney, and personally demanded of Bletcher Creasy, Thomas Williamson, Thomas Redford, and William Bollon, the churchwarden and overseers of the poor of the said parish of Friskney, permission to inspect the parish books for the purpose of ascertaining the names of the churchwarden and overseers of the poor of the said parish of Friskney by whom the said intrusion was ori ginally made, and that Plaintiff and his said solicitors did at the same time deliver to each of them the said B. Creasy, Thomas Williamson, Thomas Redford, and William Bollon, a demand in writing in the words and figures following; namely, "To Bletcher Creasy, Thomas Williamson, Thomas Redford, and William Bollon, churchwarden and overseers of the poor of the parish of Friskney, in the county of Lincoln. I, Robert. Cuthbert, of Swineshead, in the county of Lincoln, miller, do hereby demand of you and require permission to inspect the book or books in which the appointment of the parish officers for your said parish of Friskney is written or contained for the years 1780, 1781, 1782, and 1783. Dated this 13th day of November, 1819. Robert Cuthbert. Witness, William Walker." That the said Thomas Williamson, Thomas Redford, and William Bollon, upon such demand being made and delivered, declared that they were the overseers of the poor of the said parish of Friskney, but that they had not the books to produce; and Bletcher Creasy then acknowledged that he was the churchwarden of the said parish of Friskney, and could produce the books demanded, but the said Bletcher Creasy positively refused to produce the said books so demanded as aforesaid to Plaintiff, or any other person than a charge bearer. That the Plaintiff was not a charge bearer of the said parish. 1821. CUTHBERT บ. CREAST. |