Page:The English Reports v1 1900.pdf/1502

John, for his life; remainder to Henry their eldest son, in tail male; remainder to John, their second son, in tell male; with other remainders over. And in each of these settlements there was a power reserved to the earl and countess, during their lives, to grant leases of all, or any part of the premises, for twenty-one years or three lives, reserving two parts in three of the full improved yearly rent.

The estate being thus absolutely settled, without any power of revocation, it afterwards happened, that the countess conceived some displeasure against Henry, her eldest son; and, in consequence thereof, an attempt was made to change the estate tail limited to him by these two settlements, into an estate for life only.

And for that purpose, by indentures of lease and release, dated the 3d and 4th of July, 16 Car. I. Earl John and Elizabeth his countess, in consideration that she had thentofore joined with him in the sale of Dunnington, and for other the considerations. therein-mentioned, limited the premises in question, to the use of the Countess Elizabeth for life, for her jointure; remainder to Earl John for his life; remainder to Henry their eldest son, for his life; remainder to his first and other sons, in tail male; with a like remainder to John, their second son, for life, and his first and other sons in tail male; with other remainders over and in this deed, a like power of leasing was reserved, as in the former settlements, together with a power of revocation.

[541] On the 19th of June 1643, Earl John died; leaving Elizabeth his countess, and his said two sons, Henry and John, surviving.

The countess, having possessed herself of all the family deeds and writings, carefully concealed the two first settlements from the knowledge of Earl Henry; but, upon searching the records of the court of Exchequer, it was accidentally discovered, that the settlement of the 14th of November, 9 Car. I. had been formerly pleaded there; from which discovery, and also from other information that the settlement of the 14th of July, 16 Car. I. was not the real and true settlement of the family, but that one or more prior settlements had been made to other uses; Earl Henry exhibited his bill in Chancery against the Countess Elizabeth and the Lord Mordaunt his brother, and the present appellant, and other proper parties, for a discovery of what settlements had been made by his father. To which bill the countess put in an answer, and thereby confessed, that she had the settlement of the 1st of November, 14 Car. I. and soon afterwards produced it; and by the proofs taken in that cause it appeared, that the settlement of the 14th of November, 9 Car. I. was burnt.

The settlements being thus discovered, no farther proceedings were had in the cause for the present; but it appearing that the countess had, by all the settlements, a power of granting leases, Earl Henry was desirous of coming to some agreement with her touching the exercise of this power; that so he might be more completely master of his estate, and enabled to dispose of it as occasion should require.

Accordingly, by articles dated the 15th of February 1667, between the countess of the one part, and Earl Henry of the other part; it was agreed, that the countess should, by and out of the settled estate, raise the sum of £2000, and that the same should be equally divided between them; and the countess thereby also agreed, that, after this £2000 should be raised, she would not lease any part of the said estate, during the life of Earl Henry, without his consent: and the earl agreed to pay her £60 a year for her life, from the time of her receiving her moiety of the said £2000.

These articles were established by a decree of the court of Chancery, dated the 28th of October, 23 Car. II. upon a bill brought by Earl Henry for that purpose; and the countess was thereby injoined from making any further leases.

The £2000 was accordingly raised, and divided pursuant to the articles; and Earl Henry duly paid the countess the £60 per ann. during her life; but, notwithstanding this agreement and decree, she thought proper, a few days before her death, to grant leases of some part of the premises in question, to Andrew Newport Esq. for three lives; in order, as it was supposed, to prevent Earl Henry from suffering any recovery, to the prejudice of his younger brother John.

[542] In November 1671, the countess died; and soon afterwards Earl Henry having discovered these leases, exhibited his bill of revivor and supplement against John Lord Mordaunt his brother, and also against the present appellant, and the executors of the late Countess Elizabeth, in order to have the same set aside, as having been made in breach of the aforesaid agreement; and on the 3d of March, 26 Car. II. an order or decree was made in that cause, whereby those leases were set aside; and by