Page:The English Reports v1 1900.pdf/657
to him by the said Francis, by the indenture of the 3d of December 1737, without any consideration for the buildings and improvements made thereon, as they were made and erected at the expence of the appellant, and since the commencement of the lease. And Francis covenanted by the said deed, that he and Thomas Butler his then eldest son, a minor, should, within six months after his arriving at the age of twenty-one years, levy a fine, and suffer a common recovery, to strengthen the said partition and appointment, and to make the same effectual and valid in the law. And the appellant also covenanted with the said Francis, his heirs, executors, administrators, and assigns, to suspend, stop, and surcease in the said suits, and in every other suit by him thentofore commenced against Francis, in the mean time.—And on his and his said son's so confirming the said partition as aforesaid, then to release and discharge the said suits, and to dismiss all bills in equity, and suits at law, that he had theretofore commenced or pro-[389]-secuted against Francis; and the said indenture contained a covenant for further assurances.
The debts of Thomas, mentioned in this indenture, were few, and of small amount in the whole; Francis having, before the execution thereof, paid and discharged the greatest part of them.
The appellant, immediately after the execution of the said indenture of 22d March 1756, entered into possession of a third part of the Kilkenny estate; and having been in possession of another third part thereof, set out to Elinor for her dower, as her agent, and of the greatest part of the residue, as receiver for John Flood, the mortgagee, the said Francis received very little from the said estate; and Thomas, his eldest son, having soon after died under age, the partition was never made.
Notwithstanding the said deed, and the appellant's possession under it, the appellant revived the judgment obtained by him and Flood in 1754, against Francis Butler; alledging that the deed of 1756 did not extend thereto, or that in regard the said Thomas, the son of Francis, had not levied a fine, and suffered a recovery, to confirm the said agreement, he was not bound to release the said action; and therefore sued out an elegit thereupon, directed to the sheriff of the county of Kilkenny; and Francis was, by an inquisition on the said elegit taken on the 21st of October 1757, by the proof of the appellant, found to be seised of two-third parts of the estate in the county of Kilkenny, under the deed of 1756; and the appellant soon after brought an ejectment in his own name, and in the name of Flood, grounded on the said elegit, to which Francis made defence; but afterwards, on the 24th of July 1758, before the same could be tried, died, leaving Elizabeth his widow (who soon after died) and Richard Butler, the husband of the respondent Sarah, and father of the respondent Sarah Elizabeth, his eldest son and heir at law, and Alexander Butler his youngest son, who afterwards died a minor, intestate, unmarried, and without issue.
The appellant, soon after the death of Francis, sued out a scire facias, to revive the said judgments against the heir and ter-tenants of Francis, in the county of Kilkenny; and Richard and the several ter-tenants having appeared, and pleaded thereto, the issue was tried at the assizes for the county of Kilkenny; and a verdict was found for the appellant and Flood, as executors of Thomas Butler; and on return of such verdict, the appellant and Flood obtained judgment, and were, in the month of May 1760, by virtue of an elegit and inquisition, grounded upon such judgment, put into possession of a moiety of two-third parts of the estates which were found by the inquisition to be in the seisin of Francis Butler, notwithstanding the mortgage to Flood; and the appellant hath been in perception of the rents and profits of the greatest part of the estate ever since, although a receiver was appointed by the Court in 1761; and though the rents amount to £800 per ann. the receiver was not able to prevent the appellant from receiving [390] all the rents ever since his appointment, except to the amount of about £1500.
Elinor Butler, the widow of Thomas, died in 1759; and the appellant, upon her death, under the deed of 1756, entered into possession of the third part of the lands which were before set out to Elinor for her dower, and continued in possession thereof.
Richard Butler attained his age of 21 years in the year 1761, and soon after