Page:The English Reports v1 1900.pdf/349

The appellants made this case: That Benjamin Perry had served as an officer in the English army in Ireland, and in 1649, after the rebellion, had the lands of Naule, Flemingtown, Borringtown, Moresides, Kendroestown, Dardistown, Cloughan, and Clougherstown, in the County of Meath, containing 839 acres, allotted to him in satisfaction of 1695l. 1s. 3d. due to him for his service in that Kingdom, and continued in possession of all these premises till April, 1665, when he agreed to sell to Sir Audley Mervin, then Prime Serjeant at law, Sir Audley to pay him six years purchase for the premises, and be at all charges in prosecuting his claim before the commissioners under the act of settlement and explanation, or in getting reprisals for any part to be decreed to others; for which purpose Perry made Sir Audley his attorney and agent, and, by deeds of lease and release, conveyed to Sir Audley, and his heirs, for 1200l. therein said to have been paid, though in reality 200l. only was paid; for which 200l. Sir Audley was to have the mansion-house and demesne of the Naule; and for securing the remainder of the purchase money, Sir Audley, by lease, dated the same day, demised all the premises, except the mansion-house and demesnes, to Perry for 1000 years, under a proviso to be void whensoever Sir Audley or his heirs should pay six years purchase for the lands: And that some years after Sir Audley paid Perry 400l. more, for which Perry conveyed to Sir Audley lands to that value, at the rate of six years purchase; and, by agreement, kept in his possession 100 acres in the Naule, a third part of Borringtown, the lands of Flemingtown, Moresides, Kendroestown, Dardistown, Cloughan, and Clougherstown, in lieu of the remaining part of the purchase-money: And that Sir Audley, in February, 1665, exhibited his clam before the commissioners, setting forth that the premises were allotted to Benjamin in satisfaction of a [376] debenture of 1685l. 1s. 3d. and that the lands amounted only to 839 acres, which was much less than the two thirds which Benjamin was to have by the explanatory act; and in regard the said Benjamin was in England, he prayed, if any overplus were found in his possession, that he might have the preference of placing deficiencies thereon; and that this claim was heard in May, 1666, and upon proof of Perry's title to the premises, the same were decreed to Sir Audley, without any saving of the said lease or term of 1000 years: And that Sir Audley Mervin, by another deed, in November, 1666, confirmed and ratified the term of 1000 years, and covenanted that he would, within 18 months, pass letters patents of the premises, and that he and Dame Martha his wife would make further assurances for the residue of the term, and for Benjamin Perry's quiet enjoyment, against certificates and letters patents, sued or to be sued; and that Sir Audley in June, 1668, obtained letters patent pursuant to the decree, and, whilst the said Benjamin Perry was in England, fraudulently prevailed with the tenants of Moresides, Kendrosstown, Dardistown, Cloughan, and Clougherstown, to betray the possession to him, and then pretended the said last mentioned lands had been retrenched, and that he had placed deficiencies on them in his own right, and that he did not get them under Perry's title: And that Benjamin Perry returned into Ireland in 1673, and exhibited his bill in Chancery, to be restored to and quieted in his possession; and that before the cause could be brought to a hearing Sir Audley died, leaving the respondent Hugh, and others, his executors; against whom the said Benjamin Perry revived the suit, and afterwards died, leaving appellants his executors, and devised the purchase-money so due to appellant Mary, and his children by her; and that appellant Mary, as executrix and guardian, in 1680, revived the suit against the executors of Sir Audley, and respondent Hugh brought several vexatious suits, and at length, partly by treachery, and partly by open force, turned her out of possession of that part of the estate to which she had undeniable title, and which she afterwards recovered in Forma Pauperis, whilst her children were necessitated to come into England for some relief and subsistence among their relations, and other charitable people: And that the late war in Ireland beginning soon after, nothing could be further done in that suit till after the reduction [377] of that country; and then respondent Mervin