Page:The English Reports v1 1900.pdf/1513

John Wichalse, the appellant's late husband, having mortgaged his estate at Lynton, in the county of Devon, to several persons; and the mortgagees pressing for their money, the respondent was prevailed on to advance the sum of £1000 for discharging those incumbrances; and accordingly, the former mortgages were assigned to him, by deed dated the 29th of September 1691. He afterwards advanced to Wichalse, a further sum of £500 on the 30th of December 1692; so that the estate then stood mortgaged to him for £1500 and interest.

Neither principal nor interest being paid at the time limited by the mortgage, or for above two years afterwards, the respondent, on the 23d of March 1694, exhibited his bill in Chancery against Wichalse, in order to foreclose the equity of redemption; to which hill the defender put in an answer, admitting the 21500 and interest to remain due, and offering to pay the same at such time as the court should appoint, but desired a reasonable time to sell his estate for that purpose.

On the 10th of July 1695, this cause was heard upon bill and answer; when it was referred to a Master to compute the principal money and interest remaining due on the mortgage, and to tax the plaintiff his costs; and, on payment thereof by the defendant, at or before Lady-day then next, he was to have a re-conveyance from the plaintiff'; but, in default of such payment, the defendant was to stand foreclosed; and it was decreed, by consent, that if, in the mean time, the defendant could procure a purchasor for the estate, the plaintiff should join in a sale thereof.

The Master, by his report of the 14th of July 1696, certified, that there was due to the plaintiff, for principal, interest, and costs, £1879 13s. 4d. which he appointed the defendant to pay on the 29th of August following; but the time for payment being enlarged to the 24th of July 1697, and the money not being then paid, nor any purchasor of the estate procured, the decree of foreclosure was on that day made absolute; and, being afterwards duly signed and inrolled, the plaintiff was put into possession of the mortgaged estate.

The mortgagor lived above eight years afterwards, but never attempted to open the foreclosure, or to disturb the appellant [559] in his possession; yet he, nevertheless, took upon him to devise this estate to his wife, the appellant in fee; who, in Hilary term 1708, about three years after her husband's death, thought proper to exhibit her bill in the court of Chancery, against the respondent, praying an account of the rents and profits of the premises, and to be let into a redemption thereof; upon a suggestion, that the former decree and proceedings had been obtained by collusion.

To so much of this bill, as sought to lay open the foreclosure, the defendant pleaded the inrolled decree, and his possession under the same, in bar; and, by his answer, denied any collusion in obtaining that decree: and, upon arguing this plea before the Lord Chancellor Cowper, it was allowed.

But the plaintiff having replied, and witnesses being examined, the cause was heard before the Lord Chancellor Harcourt, on the 28th of April 1713; when his Lordship declared, that the defendant had fully proved his plea, and therefore dismissed the bill with costs.

From this decree of dismission, the plaintiff appealed; insisting (S. Dodd, N. Lechmere), that the estate was not sold pursuant to the first decree, nor the time for a sale or redemption enlarged; but that one Northmore, who was her husband's solicitor in that cause, colluded with the respondent in all the proceedings therein. That the respondent, after obtaining that decree, often promised both the appellant and her husband, to be accountable for the rents, and to re-convey on payment of his money; and