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of part of the real estate of the intestate; praying a discovery and account of the real and personal estate of the intestate, and that the defendants might set forth what title they had or claimed to any part of the real estate, and that all the said real estate might be sold, and the money applied for payment of the just debts of the said John Tong.

To this bill the several defendants put in their answers; and the appellants, by their answer, set forth the case with respect to the advowson of the rectory of Brancepeth, to be as follows; viz. That William Fenwick and Thomas Swinhorne, esquires, being seised in fee of the said advowson, in the year 1700 contracted with John Tung for the absolute sale thereof for 860l. but he, not having the purchase-money ready, borrowed the same of Robert Fairbeard, esq. and it was thereupon, to save oxpence in conveyances, agreed that Fenwick and Swinborne should convey the said advowson to Fairbeard and his heirs, as a security, in the first [115] place, for repayment of the said 860l. with interest, and subject thereto, in trust for John Tong, and his heirs.—That by deed inrolled, dated the 20th of February 1700, made between Fenwick and Swinborne of the first part, Fairbeard of the second part, and John Tong of the third part; Fenwick and Swinborne, in consideration of 860l. by the direction of John Tong, granted and conveyed the said advowson unto Robert Fairbeard and his heirs; in which deed was contained a proviso and covenant from Fairbeard to Tong, that upon payment of 860l. with interest, Fairbeard and his heirs would convey the advowson to Tong and his heirs.—That Tong, in his life-time, paid the 860l. and all interest for the same; but that Fairboard died, without conveying the advowson to him, whereby the legal estate thereof descended to Robert Richardson, as nephew and heir at law of Fairbeard.—That John Tong died intestate, without issue, in July 1727, and before Richardson had conveyed the legal estate of the advowson to him; and that by his death, the said advowson, or the right and interest which Tong had therein, descended and came to the appellant Edward Tong, as his brother and heir at law.—That John Tong being incumbent of the said church of Brancepeth, the same by his death became vacant; and thereupon the appellant Edward Tong presented the other appellant William Wekett, his clerk, thereto, who was thereupon duly admitted, instituted, and inducted; and that the appellant Edward Tong afterwards, by indenture dated the 8th of November 1727, for the consideration therein mentioned, conveyed the said advowson to the appellant Wekett and his heirs, to his and their own use.

After having thus stated the facts of the case, the appellant Edward Tong insisted, that the advowson was not assets liable to pay the respondents demands, and that he ought not to be compelled to join in the sale thereof for the benefit of his brother's creditors, or to direct the other defendant Richardson so to do; and the appellant Wekett insisted on enjoying the same, according to the conveyance made thereof to him by the other appellant.—The appellant Edward Tong also insisted, that his brother John Tong's real estate was charged with an annuity or rent-charge of 80l. per ann. payable half yearly to the said Edward, and Susannah his wife, and the survivor of them, clear of all deductions during their lives, and the life of the survivor of them; and that there was then due and in arrear for the said annuity 412l. 5s.

The defendant Richardson, by his answer, alledged, that the advowson was conveyed by William Fenwick and Thomas Swinborne to Robert Fairbeard and his heirs, subject to a condition, that if John Tong should pay Fairbeard 911l. 12s. at the time mentioned in the conveyance, that then Fairbeard should convey the advowson to John Tong and his heirs; but that this condition was never performed by Tong, and that Fairbeard being dead, the advowson vested in the defendant Richardson and his heirs, as heir to Fairbeard.

The defendant Margaret Tong, by her answer, insisted, that she was intitled to dower out of her husband's real estate. And [116] the defendants Carr and his wife, by their answer, insisted on a mortgage from the intestate of part of his real estate, for securing 900l. and interest.

The cause being at issue, came on to be heard before the Lord Chancellor King, on the 6th of November 1730; when his Lordship was pleased to order and decree, that it should be referred to one of the Masters of the Court, to take an account of