Page images




redemption and reconveyance, and (as against C. the son) an

account of rents and profits. Upon the original hearing in the Court below, it was adjudged, first, upon the construction of the settlement of 1781, that the remainder “ to the use of the right heirs of S. R.," vested in the settlor, as himself the right heir of S. R. at the date of the settlement ; secondly, that the deed of 1794 did not operate a confirmation except for the limited purpose expressed by the recital ; and, lastly, that the length of time, viz. upwards of twenty years, since C. entered, was no

bar by the operation of or analogy to the statute of limitations. It was also adjudged, that Sir L. P. having advanced money to

C. by way of mortgage, should not be permitted to avail himself of that security as against the Plaintiff, upon the ground either of want of notice or of acquiescence. But as to the effect of the limitation in the deed of 1781, a case was sent to a court of law and a certificate was returned, in which three of the Judges concurred with the Master of the Rolls, and one differed from him. Upon this certificate the case being brought before the Court upon the equity reserved, the bill was dismissed ; and upon appeal the decree was affirmed, upon the ground that the equity (if any) of the Plaintiffs was barred by length of time and adverse

possession. If a party has by his own act put a construction upon a deed,

whether he or à fortiori those who claim under can dispute

that construction. Qu. D. Redesdale. An heir cannot sue in equity by analogy to a writ of right, or

so as not to be barred by a limitation of less than sixty years. If the heir proceeds by ejectment, he is barred by twenty years adverse possession; and it seems that this ana

logy is adopted in equity. D. Redesdale. Between co-Plaintiffs having adverse rights there can be no

decree. If the heir and a devisee are co-Plaintiffs in a suit seeking a redemption of lands in mortgage, there can be no

decree upon a bill so framed. D. Redesdale. If a deed has a legal effect contrary to the intention of the

grantor, and a party having an interest under the deed, according to its legal effect, proceeds upon the supposed intention to permit acts which create rights in the property, whether he can obtain relief in equity to the prejudice of the

rights so enacted. Qu. D. Eldon. An agreement made by parties out of possession to proceed in






a court of equity to recover and to divide lands, &c. when recovered, is contrary to the policy of the law as well as the

statute of Hen. 8. against pretensed titles. D. Eldon C. Whether a court of equity can entertain a bill stating such an

agreement. Qu. D. Eldon C. If a deed is produced as matter of defence, and it appears that

it has an effect beyond what was intended, it is not necessary

to file a bill to reduce it. D. Eldon C. If a deed is executed which does not effectuate the intention of

the grantor, and parties who claim under it act under a
common mistake that A. is the supposed grantee, and A.
creates incumbrances upon the land supposed to be granted,
whether it is not a bar to relief in equity, and whether relief
will be granted after such transactions and a lapse of time.

Qu. D. Eldon C.
Acts done by a trustee or termor for years cannot have the

effect of adverse possession. But the rule does not apply to
the case of mortgagor and mortgagee.

D. Eldon C.
A mortgagee in possession keeping no account, and making no

acknowledgment, becomes owner of the estate after the lapse

of twenty years. D. Eldon C. Adverse possession, as against an equitable estate, may create

or defeat a right where the possessor has no duty to dis-
charge for the party against whom possession is pleaded.

D. Eldon C.
The effect of adverse possession cannot be suspended during

the continuance of long terms of years. D. Eldon C.
If a deed of confirmation is executed under a mistake, and the

party confirming being dead, there is a probability from cir. cumstances that he would not, or a doubt whether he could have raised any question upon the mistake, it is doubtful whether a court of equity would permit parties claiming

under him to take advantage of the mistake. D. Eldon C. Adverse possession of an equity of redemption for twenty

years is a bar to any other claim of the equity of redemption,
producing the same effect as abatement, intrusion, and dis-
seisin with respect to legal estates.

D. Eldon C.
Title of entry in equity is by writ of subpæna.



N June, 1811, a bill was filed on behalf of the Appellants in the High Court of Chancery.

The facts stated were as follows:





By, indentures dated in 1704, manors, &c. of Samuel Rolle in Devon and Cornwall and Dorset were settled to the use of Samuel Rolle for his life; remainder to trustees, &c. to preserve, &c.; and after the decease of Samuel Rolle, to the use of the said trustees for the term of 200 years, upon trust to raise 20,0001. as a portion for a daughter; remainder to sons successively in tail male; remainder to the use of Samuel Rolle, his heirs, &c.

Samuel Rolle had issue by the marriage only one daughter, Margaret, and by his will, dated in 1717, devised the fee-simple of the estates to his wife durante viduitate ; remainder to trustees and their heirs, to the use of the sons of his body in tail male in succession; and for default of such issue, to the use of his daughter Margaret for her life; remainder to trustees to preserve, &c.; remainder to children of his daughter as she should appoint; and for default of appointment, to the use of her sons successively in tail male.

Samuel Rolle, died in 1719, leaving Margaret his heir at law, who upon his death entered into possession of the estates devised to her for her life, and by indenture dated in 1720, the remainder of the term of 200 years was assigned to Arscott and Spicer upon the subsisting trusts of the settlement.

In 1724, Margaret Rolle married Robert Lord Walpole, and by articles made previous to the marriage, it was agreed that the Earl of Orford (Lord Walpole's father) should receive the 20,0001. under the trusts of the 200 years' term, and that Arscott and Spicer should by mortgage, &c. raise and pay the same accordingly.


1821. By indenture dated in July, 1724, Arscott and CHOLMONDELEY Spicer, in consideration of 20,0001. paid to Sir

Robert Walpole, assigned the premises to Decker,
his executors, &c. for all the remainder of the term
of 200 years, subject to a proviso for redemption
by Robert Lord Walpole and Margaret his wife.

There was issue of this marriage only one son,
George Earl of Orford, who upon the death of his
mother in 1781, entered into possession as tenant
in tail under the will of Samuel Rolle.

By indenture of bargain and sale inrolled, dated the 11th of June, 1781, the uses of a recovery

of the premises shortly afterwards suffered by George Earl of Orford were declared to himself in fee.

By indenture of lease and release, dated the 1st and 2d of August, 1781, and made between George Earl of Orford (described as only son and heir of Robert Earl of Orford by Margaret his wife, who was daughter and only son and heir of Samuel Rolle, who was only son and heir of Robert Rolle, Esq., by Arabella his wife, who was daughter and coheir of Theophilus Clinton Earl of Lincoln, and Baron Clinton,) of the one part, and Joshua Sharpe of the other part, reciting the will of Samuel Rolle and his death, leaving his daughter Margaret him surviving, her marriage with Robert Earl of Orford, and her death, leaving him the said George Earl of Orford her only son, who thereby became tenant in tail of the premises ; and reciting the said indenture of bargain and sale and recovery, and that he was willing and desirous that the said premises should continue and remain in the family and blood of the said Samuel Rolle, it was witnessed, that “ for and in consideration of the natural love and

[merged small][ocr errors][ocr errors]




“ affection which the said George Earl of Orford “ had and bore unto his relations, the heirs of the “ said Samuel Rolle, and to the intent that the

manors, &c. and hereditaments thereinafter mentioned, might remain, continue, and be in the family and blood of his late mother the said Mar“ garet Countess of Orford, on the side or part of “ her father the said Samuel Rolle;” and for other considerations, he the said George Earl of Orford conveyed, &c. “ all and singular the manors and “ hereditaments therein mentioned (being the es“tates devised by the will of Samuel Rolle) to the “ said Joshua Sharpe, his heirs and assigns, to the

use of him the said George Earl of Orford for life; 66 and after his decease to the use of the heirs of " the body of him the said George Earl of Orford; “ and for default of such issue, to the use of such

person, &c. for such estate, &c. as the said George “ Earl of Orford by deed or will should appoint; “ and in default of appointment, to the use of the

right heirs of the said Samuel Rolle.The deed also contained a general power to the said George Earl of Orford of revoking the uses therein before specified, and of limiting and declaring new uses of the same premises, or any part thereof.

By several mesne assignments, the manors, &c. comprized in the 200 years' term became vested for the residue of that term as to four fifths in Lord Keppel, redeemable on payment of 16,000l. and interest; and as to one fifth, in Adair and Bullock, redeemable on payment of 4000l. and interest.

By indentures of lease and release, dated the 4th and 5th of June, 1785, George Earl of Orford, in consideration of 16,000l. paid to Lord

« PreviousContinue »