Page:The English Reports v1 1900.pdf/1199

John Coppin, appealed and on their behalf it was argued (R. Raymond, W. Peere Williams), that if Evers Armyne, by the will of Sir Michael Armyne, took an estate tail, the recovery suffered by him barred the remainder to Thomas Style; but if Evers Armyne took only an estate for life, then the limitation to the issue male of Evers Armyne and his heirs for ever, was a contingent remainder in fee-simple to the issue male, that is, to the first son of Evers Armyne; and the remainder limited to Thomas Style, was a contingent fee-simple also: but those fees were not expectant one after another; it being admitted, that by law a fee-simple cannot be limited after a fee-simple; but these fees were two concurrent contingencies, not contrary to one another, nor either of them vested; and there-[69]-fore, if Evers Armyne had had issue male, then such issue male had taken a fee-simple; but if Evers Armiyne died without having any issue male, then Thomas Style had taken a fee-simple, and then the common recovery suffered by Evers Armyne, barred the remainder to his issue, it being a contingent remainder; and likewise the remainder to Thomas Style, that being contingent also; so that on the death of Evers Armyne, without issue, Thomas Style could not take by this devise; and consequently, the respondent, who claimed under Thomas Style, had no right or title to the manor of Pickworth. And so it was adjudged in the Court of Common Pleas, Pasch. 9 W. III. in a question upon this will, between Loddington and Kime, as printed in Serjeant Salkeld's reports, 224.—That in case the respondent had any right or title to the said manor of Pickworth, Sir Michael Armyne intended, by his will, only to secure the debts mentioned in the schedule thereunto annexed; and it was resolved in the said case of Loddington and Kime, as reported in 3 Lev. 433. that by the several clauses and the whole scope of the will, it appeared, that the debts to be paid by the provision of the will, were the debts in the schedule but if Sir Michael Armyne's will should be taken to extend to the securing of all his debts, yet by his making a mortgage of the manor of Pickworth only, and doing this subsequent to his will, he thereby revoked his will pro tanto, and did himself execute the trust, as to the said schedule debts.—That the appellants Samuel Barnardiston and John Coppin were purchasers of the said manor of Willoughby, for a valuable consideration, and without notice of the mortgage made by Sir Michael Armyne, of the manor of Pickworth, subsequent to his will.—That the respondent's right or title (if any he had) accrued forty-four years before he, or any under whom he claimed, pursued the same, or filed his bill in Chancery; since which time, so many mortgages and conveyances had been made of the said manor of Willoughby, a fine and recovery levied and suffered thereof, and such several transactions relative thereto, as before stated; that the appellants found it impracticable, after so great a length of time, to make out such an account as by the decree was directed to be taken; or to prove what part of Sir Michael Armyne's estate was sold, or for what, or how the money thereby raised was applied; or how much his executors, or the receiver by them appointed, had received out of the rents and profits thereof, or to have the rents and profits of the said manors of Pickworth and Willoughby applied, as by. the decree was directed, towards satisfaction of the said £4000 mortgage; all which inconveniences had arisen by the delay of the respondent, and those under whom he claimed, in not pursuing their claims while matters were recent, and without any excuse: being given for such delay, of which the respondent himself would now reap the advantage.—And, lastly, that the respondent claimed the reversion and equity of redemption of the manor of Pickworth, under a mere voluntary conveyance, and for which he had paid no consideration.

It seems that John Mortimer and Elizabeth his wife, who was the granddaughter and heir at law of Evers Armyne, though parties [70] to the suit in Chancery, were not originally made parties to this appeal, nor had they any notice of it till within a few days of the hearing; and therefore, on the 18th of May 1717, they applied to the house, by petition, for leave to be heard by their counsel, at the same time that the appeal should be heard. Whereupon it was ordered, that counsel for the petitioners might attend at the said hearing, in order to be heard, if the house should think fit. (Jour. vol. 20. p. 461.)

Accordingly a case was printed for them; and on their behalf it was insisted (T. Lutwyche, N. Lechmere), that the decree ought to be reversed, as to that part of it by which the respondent Carter was admitted to redeem the manor of Pickworth; for that he had no title to the estate in question: and though the manor of Willoughby was liable to a contribution towards the mortgage, yet that Mrs. Mortimer, and not