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Keppel, and of 4000l. paid to Adair and Bullock, granted, released, and confirmed to Sir Edward Hughes, his heirs and assigns, all the premises to the use of the said Sir Edward Hughes, his heirs and assigns for ever, subject to reconveyance to the said George Earl of Orford, his heirs and assigns, or such person, &c. as he should appoint, on payment of 20,0001, with interest.
The residue of term 200 years became vested by assignment in the Respondent Seymour.
On the 5th of December, 1791, George Earl of Orford being seised in fee of the equity of redemption of the mortgaged estates, died without issue and intestate as to the equity of redemption, without having altered or revoked the limitation of the deed of 1781, otherwise than by the indentures of 1785, and leaving Horace Earl of Orford, his uncle and heir at law, on whom (as the Plaintiffs alleged), the equity of redemption descended; and the bill stated that Horace Earl of Orford being advised that by virtue of the limitations in the deed of 1781, the heir ex parte materná of Earl George was entitled to the equity of redemption, in consequence of such belief, did not enter into the mortgaged estates; but that upon the death of Earl George, Robert George William Trefusis, Esq., afterwards Lord Clinton, entered into possession thereof as the cousin and heir of Earl George ex parte materná.
By indenture of lease and release, dated the 5th and 6th of October, 1792, after reciting the deed of 1785, and that the premises, upon the death of the said George Earl of Orford, became vested in the said R. G. W. Trefusis in fee, as the right
heir of the said Samuel Rolle by virtue of the settlement of 1781, and that the said R. G. W. Trefusis was desirous of raising 34,0001. for certain purposes, and had proposed to convey, &c., it was witnessed, that, in consideration of the premises, the said R. G. W. Trefusis granted, &c. and confirmed unto the Earl of Coventry, Hall, St. John, and Fortescue, their heirs and assigns, &c., all the ma nors, &c. of the said R. G. W. Trefusis, which were the estate of Samuel Rolle deceased, to the use of them the said Earl of Coventry, &c., their heirs and assigns, upon trust to raise by sale or mortgage the said 34,000l. for the
therein mentioned, and subject thereto, to stand seised, &c. in trust, and to such uses, &c. as the said R. G. W. Trefusis should appoint; and in default of appointment, in trust for the said R. G. W. Trefusis, his heirs and assigns; and by other indentures of the 7th and 8th of October, 1792, it was witnessed, that for settling and assuring the several manors, &c. therein contained, and in consideration of his natural love and affection to his wife and children, and brothers and sisters, the said R. G. W. Trefusis granted, &c. and confirmed to the same trustees and their heirs, upon the trusts and with powers under which interests by way of lease and jointure were created.
The bill then stated, that shortly after the death of Earl George a doubt was suggested to Earl Horace, whether the deed of 1785 had not revoked the uses of the settlement of 1781, and thereby defeated the limitation to the right heirs of Samuel Rolle, under which Lord Clinton claimed to be entitled to the equity of redemption of these
estates, and that Earl Horace thereupon caused a case to be stated for the opinion of counsel, which case being laid before Sir Archibald Macdonald (afterwards Lord Chief Baron) and Mr. Shadwell, Earl Horace was advised by both those gentlemen that the indentures of 1785 had revoked the uses of the settlement of 1781 only pro tanto.
The bill then proceeded to state that in the beginning of 1794 Lord Clinton (the Defendant's father) being about to raise money by way of loan on the security of the estates, caused a representation to be made to Earl Horace, that although by the limitation to the right heirs of Samuel Rolle in the settlement of 1781 he (Lord Clinton) had become entitled to the equity of redemption, yet some embarrassment had arisen to his title by reason of a doubt which had been raised whether the indentures of 1785 had not revoked that limitation, and therefore requesting Earl Horace to execute such deed or instrument as should be necessary to remove that doubt: and that Earl Horace having already taken the aforesaid opinions, and being therefore satisfied that such doubt was unfounded, consented to execute such deed or instrument as was required.
Accordingly, by indentures of lease and release, dated the 1st and 2d of April, 1794, the release being made between Horace Earl of Orford (described as uncle and heir at law of George Earl of Orford deceased) of the first part, the Earl of Coventry and others (trustees in the settlement of 1792) of the second part, and the said Lord Clinton (described with an accurate statement of his pedigree from Theophilus Earl of Lincoln as
heir at law ex parte materná of the said George Earl of Orford) of the third part, after reciting the settlement of 1781, the indentures of 1785, the death of Earl George, and the deed of 1792, and “ that doubts had arisen whether the said George “ Earl of Orford having joined in the indenture of
1785, did not revoke the limitations contained in “ the settlement of 1781, and thereby defeat the “ settlement of 1792, and vest the estates in Horace “ as heir at law of the said George Earl of Orford; “ but the said Horace Earl of Orford, being well " satisfied that the said late Earl did not intend to “ alter the uses limited by the settlement of 1781,
had, at the request of Lord Clinton, agreed to “ confirm the uses of the said settlement in manner " thereinafter mentioned,” it was witnessed, that in pursuance of the said agreement, and being desirous to confirm the settlements of 1781 and 1792, the said Horace Earl of Orford“ did grant, bar
gain, .sell, release, and confirm” unto the said Earl of Coventry, &c. and their heirs, all the aforesaid manors, &c., which were the inheritance of Samuel Rolle and George Earl of Orford, “ to, “ for, and upon such and so many of the powers, “ provisoes, limitations, declarations, and agree« ments limited and declared, or any ways ex
pressed of or concerning the same, in and by “ the said indentures of release bearing date re
spectively the 6th and 8th of October, 1792, as “ were then existing undetermined or capable of
taking effect in the same manner as if the said “ indenture of the 6th of June, 1785, had not “ been made, and to and for no other use, intent, “ or purpose whatsoever.”
Lord Clinton (formerly R. G. W. Trefusis) died
on the 28th of August, 1798, leaving the Defende ant, Lord Clinton, his eldest son and heir at law, who entered into possession on the death of his father, claiming to be entitled as tenant in tail. under the settlement of 1792, subject to the mortgage.
Horace Earl of Orford made his will, dated the 15th of May, 1793, by which, after disposing of his estates in Norfolk, Essex, and Middlesex, and giving several pecuniary and specific legacies, he gave, devised, and bequeathed to his cousin General Conway, his heirs, executors, &c. “ all the rest “ and residue of his estate and effects, real and “ personal, freehold and copyhold, whatsoever and “ wheresoever, and of what nature, kind, or quality “soever not therein-before by him otherwise dis
posed of, which he then was or should be at his “ death seised or possessed of, interested in or “ entitled to, or over which he had a disposing
power ;” and the said General Conway having afterwards died in his lifetime, by a codicil to his will dated the 27th of December, 1796, Earl Horace appointed the Plaintiff, Ann Seymour Damer, to be his residuary legatee and devisee in the room of her late father, the said General Conway, deceased, and gave, devised, and bequeathed to her, the said Plaintiff, her heirs, executors, &c. all the rest and residue, &c. in the same words as he had given the same by his will to her late father.
Earl Horace died shortly after the date of this codicil, leaving the Plaintiff, George James Earl (since Marquis) of Cholmondeley, his grand nephew and heir at law, and the Plaintiff, Ann Seymour Damer, him surviving.
The bill then stated, that some questions had