arisen between the Plaintiffs respecting the will and codicil of Horace Earl of Orford, as far as regarded the equity of redemption of the said mortgaged estates; and that, in order to put an end to such questions, they had agreed to share the same between them that they were advised, that by virtue of the limitations in the settlement of 1781, Earl Horace became, on the death of Earl George, absolutely entitled to the equity of redemption of the said estates; and that the Plaintiffs, upon the death of Earl Horace, became entitled to the same; that by divers mesne assignments, the legal estate in the said mortgaged premises had become vested in the Defendant Francis Drake, subject to redemption on payment of 20,000l. and interest; and that the other Defendants respectively claimed some interest in the same, and the bill charged that the deed of 1794 did not absolutely confirm the settlement of 1792, but only removed the doubts which embarrassed the supposed title of Lord Clinton, by reason of the mortgage deed of 1785 conveying the estates to the uses of the settlement only in such manner as if that mortgage had not been made; and that Earl Horace executed the deed of 1794 under the advice he had received as to the effect of that mortgage, and not considering that he was, in fact, parting with any substantial right or interest whatever, but fully believing, that by the limitation to the right heirs of Samuel Rolle in the settlement of 1781, Lord Clinton became absolutely entitled to the equity of redemption on the death of George Earl of Orford. The bill prayed a redemption and reconveyance to the Plaintiffs, and that the 1821. CHOLMONDELEY บ. CLINTON. 1821. CHOLMONDELEY v. CLINTON. Defendant, Lord Clinton, might be decreed to The Defendant, Lord Clinton, by his answer, submitted that it was the true intent and meaning of the indenture of settlement of 1781 to limit the estates to such person as should be heir at law of Samuel Rolle, in case George Earl of Orford died without issue. He insisted that the deed of 1794 was executed by Horace Earl of Orford, for the purpose of confirming the limitations created by the settlement of 1792, and barring himself and his heirs from making any claim to the estates, or deriving any title thereto by the operation of the settlement of 1781 or otherwise, and in order effectually to carry into execution Earl George's intention, that the estates should vest in the right heirs of Samuel Rolle, being the right heirs of him (George Earl of Orford), ex parte materná, the Rolles being the family from which he had derived those estates. He admitted the possession of his father Lord Clinton, and afterwards of the trustees in the settlement of 1792, and of receivers appointed by the Court in a suit in which the Defendant (then an infant) was Plaintiff, and the Earl of Coventry and others Defendants, to carry into execution the settlement of 1792, which pos session was alleged to have been quiet and uninterrupted till the filing of the bill. The answer then stated indentures of lease and release, dated the 26th and 27th of November, 1811, between Edward Hughes Ball, then an infant, and heir at law of Sir Edward Hughes, deceased, of the first part; certain parties therein named of the second part; and the Defendant, Drake, of the third part: by which, after reciting the mortgage deed of 1785, and an order by which it was referred to enquire whether the said E. H. Ball was an infant trustee within the meaning of the statute and the report of the Master thereon, it was witnessed, that in consideration of 20,000l. paid by the Defendant Drake to the parties of the second part, the said E. H. Ball conveyed to the said Defendant, his heirs and assigns, subject to the equity of redemption subsisting in the said estates, which sum of 20,000l. so paid was the proper monies of the Defendant Lord Clinton, the name of the Defendant Drake being made use of only as a trustee for him. The Defendant further said, that no application had ever been made by the Plaintiffs to him, or to the Defendants the trustees, to his knowledge, previous to filing the bill, except by two letters to the Defendant Drake, written in May and June, 1812, and thereby referred to; but that both the Plaintiffs permitted him, the Defendant, and those claiming under him, to enjoy the estates without setting up any claim thereto, although under no disability to do so. He submitted, that it was the intention both of Earl George when he executed the settlement of 1781, and of Earl Horace when he 1821. CHOLMONDELEY ບ. CLINTON. 1821. CHOLMONDELEY v. CLINTON. executed the deed of 1794, that the estates should become vested in the family of Samuel Rolle, so as to be a provision for the person entitled to the barony of Clinton, which title was in Earl George, and descendible to the family of the said Samuel Rolle. The answer then stated indentures of the 4th and 5th of July, 1794, between Lord Clinton (described as heir of Samuel Rolle, and heir ex parte materná of George Earl of Orford,) of the first part; the trustees of the settlement of 1792 of the second part; and Sir Lawrence Palk, Bart., of the third part: whereby, after reciting that the estates were, on the death of Earl George, vested in the said Lord Clinton in fee as right heir of Samuel Rolle, and that the trustees of the said settlement had applied to Sir Lawrence Palk to advance 25,000l. on the security of the said estates, under the trust of the settlement which he had agreed to do, it was witnessed, that the said trustees at the request of Lord Clinton, and the said Lord Clinton did grant, &c. and confirm to the said Sir Lawrence Palk, his heirs, &c. all the said manors, &c. which were the estate and inheritance of the said Samuel Rolle, and afterwards of the said George Earl of Orford, in the counties of Devon and Cornwall, subject to the said mortgage for 20,000l. to Sir Edward Hughes, and subject also to redemption on payment of the said 25,000l., and such further sum as Sir Lawrence Palk might thereafter advance, with interest. The Defendant then submitted, that the Plaintiffs were entitled to no relief in equity: and the late Lord Clinton, and the trustees and receivers, having been in quiet and undisturbed possession and enjoyment for upwards of twenty years before the filing of the bill without any claim made, except by the said two letters, the Defendant claimed the same benefit of such length of possession and of the statutes as if he had pleaded the same. He further said, that on the faith of having a good title under the deeds of 1781 and 1794, he had made several dispositions of large parts of the estates of his grandfather Trefusis, and had paid various debts of his father which he was not liable to pay; and that his father was, as he believed, principally induced to claim the barony of Clinton, in consequence of his possessing the estate which had been enjoyed with that barony. The Defendant Drake, in like manner, submitted the construction and effect of the deeds of 1781 and 1794, and claimed, as trustee for Lord Clinton, the full benefit of the length of time and of the statutes. The Defendants St. John and Fortescue (surviving trustees of the settlement of 1792) said, that until the filing of the present bill no notice of the claim or demand of the Plaintiffs was ever made to them, or either of them, and claimed indemnity. The Defendant, Sir Lawrence Palk, stated the application made to him by Lord Clinton, then being in the possession or enjoyment of the estates, and being or pretending to be with the full knowledge of Earl Horace, absolutely seised of and entitled thereto, and his consequent advances of money on the security of the estates under the mortgage deed of 1794, amounting, together with interest, at the time of putting in his answer, to 41,000l. and upwards. He claimed to be entitled 1821. CHOLMONDELEY V. CLINTON. |