1821.

PIM

บ. GOODWIN.

plainants Ann Pim and Mary Spencer, and the complainant Hannah Preston, her surviving; and that the said Elizabeth Preston, Ann Pim, Mary Spencer, and Hannah Cockayne were at the death of their mother, the said Ann Cockayne, as the Defendant believed, all of the age of twenty-one years or upwards, and under no legal disability of claiming the said close and premises had they or any of them been entitled thereto; and that the said complainants were then the sole heiresses at law of the said Ann Cockayne and also of the said testator J. W. But the Defendant humbly submitted that the said complainants were not entitled to the equity of redemption of the said mortgaged premises, for the reasons thereinafter mentioned; and the said Defendant said, that the said Francis Goodwin did not, to the best of his knowledge, information, and belief, ever procure any other assignment of the said mortgaged premises to be made to him, than the said indentures of mortgage and feoffment herein-before mentioned, which were in the possession or power of the Defendant, but the Defendant submitted and insisted that the said complainants were not entitled to call upon him to produce the same; and the Defendant further said, he verily believed that the said Francis Goodwin duly paid the sums of 80%. and 200l., the consideration money in the said indentures mentioned, to the said J. W. and Eliz. W. respectively, or as they directed; and he said, that the said Francis Goodwin continued in the possession of the said estate and premises, or in receipt of the rents and profits during his life, and until the time of his death; and that the said F. Goodwin, the father, departed this life on or about the 20th day of November, 1789, and that previously to his death, he duly made and published his last will and testament, bearing date on or about the 9th day of February, 1787, which was duly executed and attested so as to pass real estates, and thereby gave and bequeathed the said mortgaged premises unto his wife Hannah, for and during the term of her natural life; and from and after her decease, he gave and devised the same unto the Defendant, his heirs and assigns for ever; and he thereby appointed his sons, the Defendant and John Goodwin of Chaddesden aforesaid, farmer, joint executors, but the Defendant alone duly proved the said will of his said father in the consistory court of Lichfield and Coventry, and which he believed was the proper ecclesiastical court, and possessed himself of the said testator's personal estate and effects, or of such parts thereof as he had been able; but the Defendant submitted that the said complainants had no right,

under the circumstances thereinbefore and thereinafter mentioned, to any account of such assets. And the Defendant said, that upon the death of his said father, and the said Hannah his mother, he the Defendant did, under and by virtue of the said will, enter upon and take possession of the said close and premises, and ever since had, and was then, by himself or his tenants, in possession thereof, and in the receipt of the rents and profits thereof; and that the said Hannah, the Defendant's mother, departed this life about a week after the death of his said father, and the Defendant denied that the said complainants had made any such applications and requests to him as in the said bill mentioned; but, in case any such had been made to him, he should not have complied therewith, for he said, the said J. W. had, as he was advised, made liable the whole of his estate and effects to the payment of his debts; and and that the said Eliz. W. had, therefore, full power and authority to dispose of the equity of redemption of the said premises, which she accordingly did in manner thereinbefore mentioned; but, in case the said Francis Goodwin had been a mortgagee of the said premises only, yet the said F. G., some time in the year 1765, being upwards of forty years before filing the bill of complaint in this case, entered into the póssession, or into the receipt of the rents and profits of the said premises; and that the said F. G. in his life, and the Defendant since his death, had, ever since the said F. G. entered into the possession thereof, or into the receipt of the rents and profits thereof, in the year 1765 been in the peaceable and quiet possession thereof, or in the peaceable and quiet receipt of the rents and profits thereof, and having during all such time treated and considered the same as their own estate, of which they were seised in fee-simple, and had never in any manner since the time when possession was taken thereof in the year 1765 as aforesaid, treated or acknowledged the same as a mortgage, or received any sum of money from any person as for principal or interest of the said mortgage, but have received and taken the rents and profits of the said estate for their own use and benefit; that under the circumstances, and after such length of time, he submitted the said complainants were not entitled to such relief as in the said bill prayed, nor to any discovery of the rents and profits of the said premises, or to any production or discovery of the title-deeds or writings relating to the same except as aforesaid; and the Defendant insisted on the statute in that case made and provided, entitled "An Act for Limitations of Actions, and for avoiding Suits at

1821.

PIM

บ.

GOODWIN.

1821.

PIM

บ.

GOODWIN.

Law," and humbly hoped to have the same benefit thereof as if he had pleaded the same in bar to the said bill of complaint.

The reporter, after the utmost research, has been unable to procure any note of the argument or judgment in the case, if any judgment was ever pronounced. Mr. Barbor, who was solicitor for the Plaintiff, informed the reporter, that the case stood in the paper for judgment from 1812 to 1821, when his client Pim died. Mr. Bell, the king's counsel, has stated to the reporter, that after long hesitation Lord Eldon dismissed the bill in 1823, after the decision of Forster v. Blake in the House of Lords, a case which will be reported hereafter.

Foster v. Blake, D. P. 1823.

In this case a mortgage had been made in 1730 of lands belonging to Sir Thomas Blake. In 1733 the mortgage was assigned to Charles Echlin. He in 1737 filed a bill in the Exchequer in Ireland, to obtain the mortgage money by a sale, according to the practice in Ireland, and in 1744 he filed a bill of revivor and supplement. Sir Thomas Blake, by his will in 1748, vested his estate in trustees to raise money by sale or mortgage for the payment of his debts, and subject, &c. he devised his estates to his son Ulick Blake for life, remainder to his issue in tail male; remainder to Thomas Blake for life; remainder to his issue in tail male; remainder to Walter Blake, the father of the Respondent, for life; remainder to his issue, &c. Upon the death of Sir Thomas, the suit of Echlin was revived against Sir Ulick, as heir, taking no notice of the will, which Sir Ulick disputed on the ground that his father was a relapsed Papist. A decree was obtained in 1753, under which the lands were sold as the property of Sir Ulick Blake in fee. After the sale, Walter Blake, the father of the Respondent, applied to the Court for a re-sale, upon the ground that the estate was sold at an undervalue. Upon the re-sale, the estate was purchased by a Mr. Kirwan, as trustee for Lady Blake, the wife of Sir Ulick. The money received upon the sale was applied in discharge of incumbrances, and a conveyance was made to Kirwan in the year 1765. Sir Ulick died in 1767, and thereupon Sir Thomas Blake claiming as a remainder-man under the will of the devisor, Sir Thomas filed a bill against Lady Blake, as guardian of the daughter of Sir Ulick, for an account of rents and possession of the estate. Lady Blake, by her answer, claimed the estate as purchaser under the decree.

The suit was not prosecuted, but Sir Thomas filed a bill against Lady Blake in 1768, insisting that she being a Papist could not purchase or hold the estate. In 1772 a compromise was effected between the parties, and a deed executed to carry it into effect.

In the year 1786 a bill was filed to impeach the purchase by Sir Thomas Blake of Bourdeaux, another party claiming by remainder under the will. He died without issue in 1787, and the suit was revived (according to Irish practice at that day) by Walter Blake, the father of the Respondent, claiming as remainder-man under the will. Lady Blake died in 1791, when her daughter, Mrs. Forster, entered upon the estate under a settlement made in 1771. Answers were put in by Lady Blake and Mrs. Forster to the bill of Walter Blake, who took no step in the cause, and died in 1802. Sir John Blake, in 1802, filed an original bill to set aside the sale in 1765 as fraudulent. In this suit a decree was made in 1813 that the bill should be retained, and that Sir John Blake should bring an ejectment to try whether Thomas Blake, the devisor, was competent to make the will of July 1748. In 1817 Sir John Blake obtained leave, by order of Court, to amend his bill, so as to have the benefit of the proceedings of Sir Thomas and Sir Walter Blake in the suits before mentioned. The bill was accordingly amended, and a prayer was added, that the Plaintiff might be at liberty to redeem the mortgage as remainder-man under the will of Sir Thomas Blake, &c. Upon this bill, so amended, a decree was made for redemption, &c. Against this decree an appeal was presented to the House of Lords, and the decree was reversed, principally on the ground of lapse of time.

1821.

FOSTER

บ.

BLAKE.