Page:The English Reports v1 1900.pdf/409

[26] On the 21st November 1761, Lawrence Davoren filed his bill of revivor against Hugh Hogan, Mary his wife (late Mary Benson), Richard Benson (father of the said Mary Benson), John Stackpoole, and Marcus Patterson (the trustees in the pretended marriage settlement of Mary Hogan), James Burke, John Burke, and George Stackpoole the elder (the devises and executors of Edmund Hogan), and against the appellant George Stackpoole and his brother John Stackpoole (the derisees successively of the said estates), and the respondent James Davoren (as executor of John Davoren), stating the several be fore-mentioned proceedings, and the will of Edmund Hogan, and that his executors, James Burke, George Stackpoole, and John Burke, possessed his personal estate.—That the defendants, James Burke and Hugh Hogan, or one of them, had possessed themselves of Edmund Hogan's real estate, and of Lawrence Davoren's moiety of the said gavel lands.—That John Davoren, at the time of the conveyance to Hogan, was only seised of or entitled to a moiety of the estates of James Davoren; and that the same was not a valid sale, nor for full and valuable considerations, but was made merely to defraud, Lawrence of his right.—That it was pretended, that some settlement or conveyance had been then lately made of the gavel lands, on the marriage of Hugh Hogan, the brother and heir of Edmund Hogan, with Mary Benson, to the defendants John Stackpoole and Marcus Patterson, as trustees, in order to secure a jointure for Mary, and for settling the lands (amongst other premises) to the issue of the marriage; but charging, that if in fact any such settlement was made, both Hugh Hogan and Richard Benson the father, as also Mary the daughter, and John Stackpoole and Marcus Patterson, the trustees therein named, well knew or had notice of Lawrence Davoren's claim or title to a moiety of the lands, previous to the making thereof; and that it was a matter of notoriety, and well known to all parties, that John Davoren was only entitled to a moiety of the lands, and that if the parties had looked into his title thereto (as they did or ought to have done) it would have so appeared, and that such settlement was also made pending the suit by Lawrence, for recovery of his moiety of the estate.—And stating that Edmund Hogan, several years before his death, amused Lawrence with proposals of a reference and compromise, which had prevented his prosecuting his suit.—That the executors of Edmund Hogan, the said Hugh Hogan, and the executors of the said John Davoren, refused to come to an account with him for his demands, or to deliver the possession of his moiety of the estate.—But charging, that Richard Benson and Hugh Hogan knew or had notice of Lawrence Davoren's claims and demands, previous to the marriage of Mary Benson, and to the making of the articles, and the settlement made thereon, pending such suit or proceedings; and praying to have the suit and proceedings revived, and to be in the same plight and condition as they were in at the death of John Davoren and Edmund Hogan respectively.

[27] In 1761, the respondent, as executor of John Davoren, filed his bill against the representatives of Edmund Hogan, claiming or setting up title to an arrear of the annuity of 200l. alledged to be secured to John Davoren, by the bond of Edmund Hogan, on the footing of the agreement of 1748; but afterwards relinquished such suit, and also relinquished administration to the will of James Davoren; which was thereupon granted to Pierce Creagh, who thereupon instituted a suit to the same effect, for the arrears of such annuity.

Lawrence Davoren died before any answers were put in to the bill of revivor, filed by him in 1761, leaving the respondent his only son and heir at law, and having first made his will, and appointed the respondent his sole executor, who on his death became entitled to the moiety of the gavelkind lands, and the rents and profits thereof.

In 1765, Hugh Hogan died intestate, leaving Mary Hogan his widow (now the wife of John Rawson esquire), John Stackpoole Hogan, his only son, and Mary Hogan the younger, his only daughter; and the said John Stackpoole Hogan the younger, or his trustee, from the time of his father's death, entered into possession of the real estates, and received the rents and profits thereof; and John Stackpoole Hogan the younger, having since died intestate, an infant and without issue, leaving Mary Hogan his sister, his heir at law, and who also thereupon became heir at law of Edmund Hogan, Hugh Hogan, and John Stackpoole Hogan, administration to