Page:The English Reports v1 1900.pdf/288

The respondent on the other hand shewed, that Anne Prise, the grandmother, had been seised in fee of certain freehold and customary lands in Wisteston and elsewhere, worth about 300l. per annum; and that she, 12th July, 1687, surrendered the copyhold lands to Thomas Prise, deceased, appellant's father, and to respondent's late wife, Diana, and their heirs, to such purposes as she should direct: And by a deed, dated 2d April, 1688, declared the intent of the [250] surrender to be to raise 3000l. portion, and an annuity of 40l. per annum for Diana, and to corroborate former securities for that purpose; and, by a codicil to her last will, devised all her freehold lands to Masters and Westphaleing (defendants in the cause) for 500 years, in trust for raising the portion and annuity of 40l. and died in 1689, and that appellant and his father had ever since been in possession of the trust lands, charged with the portion and annuity: And that respondent, in 1693, married Diana, and appellant soon after represented to respondent the insufficiency of his estate to pay the incumbrances upon it, and desired an abatement of his sister's portion; and that respondent, from brotherly affection, and to quiet all differences concerning what lands were liable to his wife's portion and what not, agreed to accept 2500l. in full for the 3000l. and to abate the arrears for the annuity, which were 500l. more, which appellant thankfully accepted, and agreed to pay 1000l. down, and the remaining 1500l. in four years after, with 60l. yearly for forbearance; and upon payment thereof, respondent agreed to surrender and assign all his right to the trust estate to appellant; and that appellant had, by letters under his own hand, acknowledged the agreement, and that it was very favourable to him, and repeatedly promised to stand to the same; and in pursuance thereof, in December, 1694, paid respondent 810l. in part; and that respondent and his wife had signed a receipt for 852l. 10s. 6d. which was the sum expected to be paid, and appellant had accepted of the said receipt, and therein the agreement was recited and appellant at the same time gave a note under his hand, to re-deliver that receipt upon getting another for the 810l., and that appellant, after four years acquiescence, having declined to perfect the agreement, respondent and his wife, in Easter term, 1698, brought their bill to compel an execution thereof, or to have an account of the profits and a sale of the trust estate: And that appellant had put in five insufficient answers; and when they were reported insufficient, put in exceptions to the several reports, which were upon several arguments over-ruled by the late Lord Chancellor and Lord Keeper, and thereby for three years prevented a decree: And that Thomas, appellant's father, and said Diana, both [251] died, and respondent administered to his said wife, and revived the cause: And that appellant had by his answers confessed the agreement to be made at his request, and through kindness to him; but insisted that he had since found some old cancelled articles pretended to be made on his father's marriage, whereby the lands were so settled, that Anne had not power to charge the 3000l. on the estate, though respondent shewed that Anne was a feme covert at the execution of these articles: And shewed further, that after many affected delays on appellant's part, publication passed in Michaelmas, 1701, and that the cause was set down to be heard 4th February last; but on account of an arrear of causes, was ordered to stand early for the first cause day in Trinity term, which order had been served on the appellant's clerk 4th of May, and that appellant 1st of June, petitioned the Lord Keeper that the cause might stand adjourned till the latter end of that term; and respondent and appellant's council attending in Court 5th June, first day of Trinity term, the cause was ordered to stand first in the paper for 12th June, at which time appellant, by his council, promised to be ready; so that appellant had had about six weeks notice of hearing: And that the cause was accordingly called on to be heard 12th June, when appellant made default; and that it was thereupon decreed that appellant should pay 190l. the remainder of the 1000l. with interest, from the time of the agreement, and the remaining 1500l. with interest, at the rate of 60l. per annum, to the time that the same by the agreement was to be paid, and from that time 6l. per cent. interest, or in default the trust estate to be sold, and appellant to account for the profits, and the whole 3000l. and interest, with the arrears of the annuity, to be paid to respondent, unless cause by the return of a subpœna to be served; and which respondent showed served 18th June, returnable 3d July, and that then on appellant's default, the decree was made absolute, and afterwards regularly signed and enrolled: And that appellant did not suggest that the agreement had