Page:The English Reports v1 1900.pdf/1186

Richard, Lord Archbishop of York, by lease, dated the 24th of November 1676, demised to Francis Sandys, Esq. the site of the manor of Askham, and several lands in Askham, in the county of Nottingham, to hold to the said Francis Sundys, his heirs, executors, administrators, and assigns, for the lives of Mary Wastneys, widow, Margaret Sandys, spinster, and Ann Crake, spinster, and the life of the longest liver of them, under the yearly rent of £12 6s. 8d.

Francis Sandys was only a trustee in this lease for one Colonel Willian Sandys, who, on the 26th of December 1688, made his will, and thereby, after charging several annuities on the premises, and particularly au annuity of £40 a year to his daughter Penelope Hovell, and some small legacies, gave the rest of his real and personal estate to his daughter Margaret Sandys, and made her sole executrix. And after the death of his said daughter Hovell, the testator declared his will to be, that her annuity should go to his said daughter Margaret, towards payment of his debts; and after both their deaths, (if his debts were paid,) his will was, that his estate should be equally divided between his grandchild Sir Hardolph Wastneys (the appellant) and his grandchild Thomas Wightwicke, in lieu of what they or either of them might demand of him, or his executrix, they paying to his other grandchild Charles Chappell (the respondent) £20 a year, during his life. And his further will was, "That if Sir Hardolph, or Thomas Wightwicke, or either of them, died without heirs of their own bodies lawfully begotten, then their or either of their shares should go to his said grandchild Charles Chappell."

Soon afterwards the testator died; whereupon Margaret, his daughter and executrix, proved the will, entered upon the leasehold estate, and applied the rents and profits thereof in payment of the testator's debts and annuities, as well while she continued sole, as after her intermarriage with Philip Squire, clerk.

By indenture, dated the 8th of July 1607, Thomas Wightwicke, in consideration of £30 released and conveyed all his reversionary right, title, and interest in the said leasehold premises to the appellant; and afterwards died unmarried and without issue, in the lifetime of the executrix.

Upon the death of the said Margaret Squire, the appellant entered upon the premises, and received the rents and profits thereof; but some time afterwards, a bill was filed against him in [51] the Court of Chancery, by Elizabeth Hickman and others, who had a mortgage on this estate for $700, either to satisfy their demand, or stand foreclosed; the appellant thereupon filed his bill against the mortgagees, for a redemption; and the respondent, about the same time, exhibited his bill against all the parties, praying to be lot into possession of an undivided moiety of the said leasehold premises, and to have an account of the rents and profits thereof, and that he might be at liberty to redeem the same.

On the 2d of March 1712, these three causes were heard before the Lord Keeper Harcourt, who declared, that the appellant and respondent were entitled to redeem the said mortgaged premises in moieties; and therefore decreed a re-conveyance thereof to them in moieties, upon payment of the mortgage-money, with interests and costs; and that, in the mean time, the respondent should he let into possession of the premises, and into the receipt of the rents and profits thereof, equally and together with the appellant, in moieties.

From this decree, so far as it established the right of the respondent, the appellant appealed; insisting (J. Gilbert, W. Gylby), that the term being limited to the re-