Page:The English Reports v1 1900.pdf/411

to rescind it, much less in favour of Lawrence, who, after he had obtained all the benefit of the agreement, in-[29]-stituted a suit in a court of equity, upon a penal statute, in order to strip his brother of the estate which he had stipulated to give up, and to defeat his own agreement. That Lawrence's claim by his original bill in 1732, if any he had, was done away by the instrument of the 28th of October 1736, whereby, for valuable considerations, he covenanted to convey all his title to the estate in question, to William, the son of John, who was a protestant, and for whom this must be considered as an advancement. This agreement was entered into in order to put an end to litigation, after the parties had fully considered the nature of their respective claims; it was made on mutual stipulations, and acted upon by both parties; particularly by John's confirmation of the contingent legacy of 3000l. given by the disputed codicil; by Lawrence's enjoyment of Gragans farm; by the release of the unquestionable demands which John had upon him; and by John's having paid the costs of the original bill. That if the instrument of the 28th of October 1736 stood in need of confirmation, the respondent's father, and the respondent, had both in fact confirmed it; the former by seeking compensation for his eviction out of the farm of Gragans, to which he then confessedly had no title but under that instrument; the latter by having instituted a suit in the name of Pierce Creagh, his trustee, for recovery of the arrears of the 200l. annuity, which was part of the consideration given to Johai by Hogan for the purchase of the estate in question, and which John by his covenant was bound to make good. But supposing the right originally derived to Lawrence under the popery laws, to have been a subsisting right, it was a legal right, and ought to have been pursued in a court of law. It is no answer to this objection, that a partition is the subject matter of equitable jurisdiction; for that is not so when the title is controverted. The right to an undivided part must be established at law, in case the title is denied, before a court of equity will interfere in decreeing a partition. Besides, in this case there was the less ground for the interposition of a court of equity; because the estate having been in the possession of protestant purchasers for above thirty years, the policy of the popery laws had been already fully answered. That supposing the court right in entertaining the suit, and directing a partition and account, yet still the appellant contended that the decree was erroneous. 1. In decreeing a partition of all the lands, indiscriminately, in the pleadings mentioned, several of which appeared to be freehold, and others leasehold interests; whereas, it should have only directed a partition of such of them as James Davoren was seized of in fee-simple, or fee-tail, before the year 1703; for the gavelling clause in the 2d of Queen Anne, did not extend to the lands purchased by him after that year, in which he could take no estate, such purchases being absolutely void as to him, and subsisting only for the benefit of a protestant discoverer. 2. In directing the 200l. band, given by Lawrence to John, for the purchase of Gragans farm, to be delivered up; whereas that bond was given, upon mature consi-[30]-deration, in order to avoid contest, Lawrence having full notice of the codicil and of John's title, and upon a fair contract between the parties. 3. In directing an account to be taken of the rents and profits of the land in question for more than fifty years past, during which period the estate had passed through a variety of hands, and had been the subject of different family settlements; and, 4. In not directing the officer to make all just allowances.

On the other side it was said (A. Wedderburn, J. Wallace), that Lawrence Davoren's title, under the clause of the 2d Anne, was not denied; and the gavel act, in this instance, preserves a moiety of the estate to the heir male of the family. That the instruments in 1736 did not effect the respondent's title.—For, 1st, The instruments of 1736 were conditional, and the first act to be done was the delivery of the bonds, by John, to a trustee for Lawrence, which John never did.—These bonds were thus loosely described, Several bonds of certain dates, and made payable at certain times; and it was proved in the cause, that these bonds (for the greatest part) were entered into without consideration. 2d, The farm of Gragans, which was one of the considerations, was the property of Lawrence himself under his brother's codicil. He was in possession of it prior to the agreement, and though in two years after the agreement he was evicted, yet the compensation of 5l. a year, which, if the agreement had taken effect, was to have been allowed him in case of eviction, was never paid. 3d, The 3000l. directed by James's codicil to be secured