Page:The English Reports v3 1901.pdf/610

VII BROWN, ROTHERAM V. BROWNE [1747] and so as to have this operation, was the effect of acci-[303]-dent or mistake, they ought in equity to be rectified; but if it was not the effect of mistake or accident, it was an imposition upon Richard Benthall: and wherever deeds are framed, either through accident or design, materially and substantially different from the real intent of any of the parties, a court of equity ought to extend its aid; the giving relief in such cases being one of the chief branches of its proper and original jurisdiction. On the other side it was said, that the appellants' case seemed to depend either upon a title at law derived under the deed poll of the 3d November 1718, or upon a right to be relieved in equity against the deeds executed by Richard Benthall, under which the respondents derived a title. But it was insisted, that the appellants had no legal title to the premises; because the appointment of the 3d November 1718 in favour of Richard Benthall was either duly revoked by the deed of 11th March 1719, by virtue of the original powers reserved to Elizabeth Browne in the deed of October 1718; or else, the estate and interest derived to Richard Benthall under that appoint- ment, was duly barred by the fine and non-claim, and the recoveries suffered by Elizabeth Browne; she having a legal power to bar any interest or estate in remainder which lay behind the estate tail, and thereby to make herself tenant of the premises in fee simple. That the legal right to the premises being properly triable at law, and the decree having given the appellants liberty to bring an ejectment, and having removed all impediments to a trial of that right upon the merits of the case, the appel- lants had a proper opportunity of trying their title at law, if they thought fit; but having declined such trial, and suffered their bill to be wholly dismissed, they had no just reason either to complain of the decree, or to expect any further indulgence. And as to any right in equity to be relieved against the deeds under which the respondents claimed, it was contended that there was no just foundation for any of the objections which had been made. The first pretence set up for this purpose was, that the deeds of October 1718 were left to be prepared, and were prepared by the direction or management of Eliza- beth Browne, or her brother, or their agents, and executed by Mr. Benthall without consulting any person but such as were in their interest, and were obtained from him by unfair means and influence. But none of these allegations were supported by proof: on the contrary, it appeared from the evidence, that Mr. Benthall was not only a person of very good sense, but had been bred to the law and was conversant in business; that he himself gave the instruction to his own agent whom he usually employed in his affairs; that the whole transaction was his own voluntary act, begun, carried on, and completed with deliberation and perfect knowledge of what he did, and without the least ingredient of fraud or undue influence whatsoever; and that after the execution of these deeds they were left in his custody. [304] The next pretence was, that the deeds were proposed only as a security for the £1050, and that Mr. Benthall was to have the estate subject thereto if the treaty of marriage did not take effect; but if it did, then the deeds were to be in the nature of a marriage settlement; and that Mr. Benthall executed them in confidence; that they were drawn pursuant to such proposal and agreement but there was no proof of any such proposal or agreement; it was contrary to the plain words and manifest meaning of the deeds, and there was no provision by covenant or otherwise for a redemption of the premises on repayment of the £1050 and though there was an account stated, and a note signed for this sum, yet that was done only to evidence the debt, which was immediately discharged by the conveyance. The deeds took no notice of any marriage, but were formed upon a plan which could not answer either of these purposes; nor did the circumstances or proofs in the cause show, that the parties intended the deeds to have this particular effect or operation; but the whole was calculated to put the estate in Mrs. Browne's power at all events. Still it was objected that the £1000 was not an adequate consideration for the purchase of the equity of redemption of this estate that therefore the deeds must be considered as a security only for that sum, and could never be intended to put the estate in Mrs. Browne's power at all events; and that the deeds must have been so drawn by mistake. To this it was answered, that the deeds were not founded upon a strict purchase for a valuable consideration, but were of a mixed nature, partly founded on consideration, and partly voluntary, proceeding from friendship and affection to Mrs. Browne, which were the joint motives of the settlement. That Mr. Benthall 598