Page:The English Reports v1 1900.pdf/465
the church should become void; but, as Lady Hobart was only tenant for life, under the act of parliament, there was a covenant inserted in this deed, that if she should happen to die before the church became void, so that the grantees could not present, then her heirs, executors, or administrators, should pay to them 107l. 10s. within three months after her death.
The mortgage to Sir William Rawlinson, being afterwards paid off, he assigned the 1000 years term to a trustee; and covenanted, that he had done no act to incumber.
In September 1701, Lady Hobart died; whereby the manor and advowson came to the respondent, under the limitations of the act.
In April 1703, the church became void; and Mr. Kendall, having previously released all his interest under the above grant to Serjeant Selby, he, at the appellant's nomination, presented a clerk to the church; whereupon the respondent, by his next friend, exhibited his bill in the Court of Chancery, against the appellant and the Serjeant, and also against the administrator [109] of Lady Hobart, to prevent the admission and institution of the presentee.
On the 19th of May 1704, the cause was heard before the Lord Keeper Wright; who decreed, that the defendant Serjeant Selby, in whom the legal estate was vested, should present such person to the church as the plaintiff should appoint; and that the administrator of Lady Hobart should re-pay to the said defendant, the said sum of 107l. 10s. but without interest.
From this decree, the defendant Dymoke and Serjeant Selby appealed; insisting (F. Page), that the appellant Dymoke's trustee had a legal title, which could not be impeached in equity; for that the contract was fair and equal, and made with those who had power to make an absolute sale; and therefore it differed from the case of a common mortgagee, who could not make any such sale. That it was not in the power of the appellants to recover the purchase-money, because the covenant was conditional; viz. if the trustee could not present, but which he could and must do, whether the decree stood or not; and therefore it would be against common justice to make the contract binding on one side only, and to punish the appellant Dymoke, who had done no wrong, not only with the loss of his presentation, but of the interest of his money, and his costs of the suit. That the dissolving the contract by the decree was a damage, even to the respondent; because the 100 guineas and interest was a discharge pro tanto of the incumbrance upon the estate; and which, as the decree stood, he was to repay, though he could not sell the presentation. That there wanted proper parties to the bill, namely, the persons in remainder; whose estate, in case of the respondent's death without issue, would be clogged with the payment of this money, without their privity or consent. That the voluntary payment of this money by the respondent, after the church became void, would have been direct simony; and the decree, as to the reason of it, did not alter the case; but, if the decree was reversed, the appellant would have the benefit of his contract, and the respondent of the purchase-money, and thus justice would be done to all parties.
On the other side it was contended (T. Vernon), that Lady Hobart being only tenant for life, could not by any grant of hers, bind or prejudice the respondent, her son. That Sir William Rawlinson was only a mortgagee, out of possession, and had no interest, but barely as a security for his money, which was, in fact, paid him before the church became void; and it would be a very great mischief, to countenance & grant by a mortgagee out of possession, to strip the mortgagor, or his heir, of a right to present to any church, that was within the mortgage. That both Serjeant Selby and Mr. Kendall knew that Lady Hobart was only tenant for life, and that Sir William Rawlinson was only a mortgagee out of possession; and therefore they took her Ladyship's covenant for the repayment of the money, in case she should die before the church became void; and, as the decree had directed the repayment of this money, out of her estate, nobody was injured.
[110] Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the petition and appeal should be dismissed, and the decree therein complained of affirmed; and that the appellants should pay to the respondent, or his guardian, for his use, the sum of 101. for his costs. (Jour. vol. 17. p. 584.)