Page:The English Reports v4 1901.pdf/735
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REPORTS OF CASES heard in the House of Lords, upon Appeals or Writs of Error, and decided during the Session 1821. By Richard Bligh, Barrister-at-Law. Vol. IV.
ENGLAND.
Court of Chancery.
GEORGE JAMES Marquis of CHOLMONDELEY, and The Honorable ANN SEYMOUR DAMER,—Appellants; ROBERT COTTON ST. JOHN Lord CLINTON, and Others,—Respondents [15th June 1821].
[Mews' Dig. iii. 216; ix. 1491; xiv. 1735. S. C. 2. Mer. 171. 2. Jac. and W. 1. Adopted in Pearce v. Morris, 1869, L. R. 5 Ch. 227, at p. 230; Warner v. Jacob, 1882, 20 Ch. D. 220, at p. 221; Farrar v. Farrar's Lim. 1888, 10 Ch. D. 395, at pp. 410–411; Soar v. Ashwell [1893] 2 Q. B. 390, at p. 397.]
S. R. devised lands, etc. (subject to a term of 200 years, for raising a portion) to the use of his daughter M. for life, remainder to the use of her first and other sons in tail male, remainder to his cousin J. R. in tail, etc.; and died, leaving his daughter M. his heir at law, who married and had one son G. Earl of O., who upon the death of his mother entered as tenant in tail under the will of his grandfather, and suffered a recovery to the use of himself in fee, and by deed in 1781, reciting "that he was willing and desirous that the said estates should remain in the family and blood of S. R.," in consideration of "the natural love and affection which he bore to his relations, the heirs of S. R.; and to the intent that the estates might continue in the family and blood of his late mother, on the side of her father," limited the lands, [2] etc. to the use of himself for life, remainder to the heirs of his body, and for default of such issue, to such persons as he should appoint; and for default of appointment, "to the use of the right heirs of S. R.," with a general power of revocation and new appointment.
In 1724 the term was assigned upon mortgage to raise the portion.
By deed in 1785 G. executed to E. H. a mortgage in fee. The term of 200 years was assigned on the same occasion.
On the 5th of December, 1791, G. died without issue, leaving H. Earl of O. his uncle and heir at law. Upon the death of G. C. entered, claiming as the then right heir of S. R. under the limitation in the deed of 1781.
Shortly after the death of G. opinions of counsel were taken by H. as to the effect of the deed of 1785 upon the deed of 1781, and he was advised that it operated only as a revocation pro tanto.
In 1792, C. proposing to raise money by further mortgage, and also to make family settlements, conveyed the lands, etc. to trustees for those purposes, and the lands, etc. were by a subsequent deed appointed and limited accordingly. But the proposed mortgagees not being satisfied with the title of C. under the limitation in the deed of 1781, H. Earl of O. was applied to by C. on account of the doubts which had arisen with regard to the effect of the deed of 1785,
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