Page:The English Reports v1 1900.pdf/1197

Differences afterwards arising among the surviving executors, certain articles were executed between them, dated the 23d of January 1668, whereby, in order to settle those differences, it was declared, that the debt of £4000 due to the Lady Diana Holles, upon the said manor of Pickworth, with the interest then due and to grow due thereon, should be taken as the proper debt of Sir Michael Armyne, to be paid out of the mesne profits of his real estate, which they were authorised to receive for the payment of his debts.

And by other articles between the executors, dated the 3d of June 1674, it was agreed, that Edward Searson, who had been employed by Sir Michael Armyne in his lifetime, and by his executors after his death, to receive the rents and profits of his lands, should collect and gather in all the rents and arrears of rent then due and to become due out of Pickworth and Willoughby, and dispose of the same towards payment of the said £4000 debt upon Pickworth; and that the said Searson should, from time to time [66] account for all such his receipts and disbursements to the said executors.

Evers Armyne, the devisee, having got into possession of the said manors of Pickworth and Willoughby, kept down the interest of the £4000 mortgage until his death; but he thought proper, in his lifetime, to suffer a common recovery of these estates, and to declare the uses thereof to himself in fee: he afterwards made his will, whereby he devised both these manors to his nephew Armyne Bullingham, in tail; with remainder to the heirs male of the body of his granddaughter Elizabeth Saunders, afterwards the wife of John Mortimer; and in default of such issue, to the heirs of her body; with remainder to his own right heirs. And on the 2d of June 1680, he died.

After the death of Evers Armyne, the said Thomas (then Sir Thomas) Barnardiston entered upon the manor of Willoughby, and received the rents thereof; but who then entered upon the manor of Pickworth does not appear; however, the £4000 mortgage having, by several mesne assignments, become vested in Faith Heneage, widow, she, in April 1695, entered upon the said manor of Pickworth, and received the rents and profits thereof till her death, when Thomas Heneage, Esq. her executor, became entitled to the mortgage, and entered upon the said manor accordingly.

In March 1688, Sir Thomas Barnardiston, the devisee, borrowed £4000 of Sir Richard Rothwell; and for securing the repayment thereof with interest, he mortgaged the manor of Willoughby to him, for a term of 1000 years; and this mortgage becoming afterwards vested in the Lord Middleton, was, on the 1st of July 1701, assigned by him to Sir Samuel Barnardiston, Bart. in consideration of £4349 138. then due thereon.

The said Sir Thomas Barnardiston afterwards borrowed £1000 more; and for securing it, he made another mortgage of the said manor of Willoughby, which, by mesne assignments, likewise became vested in the said Sir Samuel Barnardiston; and both these mortgages were by him assigned to the appellant Samuel Barnardiston. And upon the death of Sir Thomas Barnardiston, the appellant Sir Robert, as his brother and devisee, claimed to be entitled to the equity of redemption of this manor.

After the death of Evers Armyne, several suits and controversies arose between the said Armyne Bullingham, his devisee, and the said Sir Thomas Barnardiston, the devisee of Sir Michael Armyne, touching the said manor of Willoughby, and the estate which the said Evers Armyne bad therein; in consequence whereof, a special verdict was found in an action of replevin, wherein the titles of both these parties were brought into question; and after several arguments in the Court of Common Pleas, judgment was given in favour of the said Armyne Bullingham. (Loddington v. Kime, 1 Salk. 224. 3 Lev. 431. 1 Eq. Ca. Ab. 182. ca. 23.) But both of them being relations, they afterwards came to an agreement; and by deed inrolled, dated the 24th of January 1697, and a fine and recovery, in pursuance thereof, they joined in a conveyance of the [67] said manor of Willoughby, and thereby a rent-charge of £250 per ann. clear of taxes, (the whole estate being only £510 per ann.) was secured out of the said manor to the said Armyne Bullingham, in fee-simple; and, subject thereto, the manor was conveyed to the said Sir Thomas Barnardiston and his heirs.

This rent-charge being afterwards greatly in arrear, Nicholas Bullingham, the cousin and heir, and also the administrator of the said Armyne Rullingham, brought his bill in Chancery, to enforce the payment thereof; but the appellant Coppin having purchased the whole rent-charge and arrears, he and the other parties to that suit,