Page:The English Reports v1 1900.pdf/221

The appellant stated, that Isaac Foxcroft was seized in fee of a part of an ancient messuage called Wildhouse, in the parish of St. Giles in the Fields, in the county of Middlesex, and possessed of other part thereof for a long term of years, and agreed with several builders to pull down parts thereof, and build new houses thereon; and about 25th March, 1695, proposed to make such agreement for part of the said house with appellant, and promised to assist him with money without interest, in case he should want it to finish the building; and it was particularly agreed between them, that appellant should at his own cost pull down a certain part of the messuage, and build thereon fourteen or more good messuages; and that Foxcroft should, in conside-[109]-ration thereof, lease the said part to appellant, from Michaelmas, 1695, for ninety-nine years, at a pepper-corn for the first year, and 150l. yearly rent for the last ninety-eight years. At the time of making which agreement, there was no memorandum or note thereof in writing; but in performance of the agreement, appellant entered into that part of the messuage, and, at his own cost pulled down the same, and built several new houses thereon (the whole fourteen being almost finished) and therein disbursed several thousand pounds; about 2000l. his own money, and several sums borrowed from Foxcroft upon his own securities, yet unsatisfied, and was all along in possession, and acted as sole proprietor and owner, and was acknowledged as such by Foxcroft; who frequently declared that he had only a ground rent, and that appellant was the landlord; and as any of the new houses were finished, appellant demised the same in his own name, received the rents, and Foxcroft never received nor claimed any part thereof: And about August, 1698, (Foxcroft being then ill of the sickness whereof he died) made his will, and his daughter, Elizabeth Foxcroft, sole executrix; and devised to his second son, Isaac Foxcroft, his heirs and executors, all his estate in the said ancient messuage called Wildhouse; and if he died under twenty-one, to his eldest son Henry Foxcroft, his daughter Elizabeth, and Benjamin Whichcott, and appointed Francis Nicholson, guardian of his son Isaac, with power to let and set for such time during his minority, and immediately after making said will delivered it to appellant's wife, to let the appellant see there was nothing therein inconsistent with his said agreement; and ordered her to get a lease prepared speedily according to the agreement; and delivered to her two building leases executed by him, in pursuance of like agreements with others, as precedents to have appellant, his lease drawn by, and appellant accordingly caused the leases to be prepared, bearing date about the time of the said agreement, and brought two parts thereof to Foxcroft to be executed, who caused both of them to be read to him, and approved same; but observed that there was a mistake in one part thereof in his name, John being put for Isaac, and disliked that the sealing and delivery was not endorsed on the back thereof; and thereupon ordered appellant to get the mistake amended, and the endorsement made by the same hand that engrossed the deeds, and then to bring them again, and he would exe-[110]-cute them; and often expressed his dissatisfaction that they were not brought back for execution as soon as he expected, and was under great uneasiness of mind lest he should die before it was done. And appellant a few days before the death of Foxcroft, brought the deeds so amended to his house to have them executed as he had directed, but respondent refused to let appellant see or speak with Foxcroft, and used several indirect and unfair methods to prevent him from executing the said leases, by means whereof he died without executing them; and since his death respondents refused to execute leases, according to the agreement, whereon appellant, in Hillary term, 1698, exhibited his bill in Chancery for a specifick execution of the agreement, and the cause being heard 6th March, 1700, the Lord Keeper declared that there was no sufficient proof of the said agreement, and ordered appellant's bill to stand dismissed without any relief; which