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On behalf of the respondents, however, it was said (A. Macdonald, W. Selwyn), that supposing Thomas Butler, the appellant's father, to have been tenant in tail male of the estates in question, as was contended for by the appellant, Thomas by the recovery suffered of the Tipperary estate in 1714, gained a fee-simple in that estate; and the respondent Sarah Elizabeth, as the only child and heir of Richard, who was the eldest son of Francis, the second son of Thomas, was entitled to one-third of the Tipperary estate in fee, without having recourse to the agreement of the 22d of March 1756, or any other circumstance; and was also, as heir to her uncle Pierse, the eldest son of Thomas, entitled to one other third of the Tipperary estate in fee, and consequently entitled to an account of the rents and profits of those two-thirds, from the respective deaths of her father and uncle. That Thomas Butler having been seised in fee of the Tipperary estate, did, by the deeds of the 28th and 29th of January 1735, agree to convey the same in fee to Francis, then a Protestant, and capable of taking, in consideration of an intended marriage, and of £600 agreed to be paid by Francis to and among the younger children of Thomas. And Francis afterwards, on his marriage with Elizabeth, the grandmother of the respondent Sarah Elizabeth, by articles of the 1st of March 1735-6, [395] agreed to limit the same after his death, to the issue male of the marriage; and a remainder was by those articles limited to the appellant and his issue. The above deeds were drawn and prepared by the appellant, who was at that time a practising attorney, and the manager and law agent of the family. That Thomas Butler having considered Francis as his eldest son, on account of the idiocy of Pierse, in the year 1728, executed to him the fee-farm grant of the Kilkenny estate, at the yearly rent of £92 in consideration of Francis paying his debts and providing for his younger children; and Francis being at that time, and during all the rest of his life, a Protestant, and capable of accepting such grant, the same must be considered as an alienation or disposition for money really paid, so as not to be subject to the laws for preventing Popery. That the appellant was privy and assenting to the fee-farm grant in 1728, and confirmed the same by the following acts; namely, the mortgage to Flood in 1734; the acceptance of a lease from Francis in 1737, of a considerable part of the estate granted to him by Thomas in 1728; the agreement of the 27th of April 1753, whereby, in consideration of releasing all suits depending between him and Francis, the appellant agreed to convey two-thirds of the estate in question to Francis, and Francis also agreed to convey one-third to the appellant; the subsequent deed of the 22d of March 1756, of the like effect, reciting the former agreement of 1753; and the lease to the appellant in 1737, which was thereby confirmed. That the appellant having, by a variety of acts, confirmed the deeds of 1728, 1735, 1753, and 1756, and having received great advantages under them, and Francis on his part having performed the covenants in those deeds, it would be contrary to every principle of justice to permit the appellant to defeat the purposes for which the deed was executed, to the prejudice of the heir of Francis and Pierse, who was a purchaser under those deeds, upon a supposition that the appellant was, in the year 1753 and 1756, ignorant of his title. That agreements and solemn conveyances are not to be set aside upon slight grounds, when the parties contracting have not been deceived or mislead by any concealment or misrepresentation on the part of the persons with whom they have contracted. No suppression or concealment of any deed or writing, or any matter of fact, had hitherto been imputed to Francis; and he was equally clear from any charge of direct imposition or misrepresentation. But in truth, it appeared from the admissions made by the appellant in other suits, that he was not ignorant of his title, and that he was fully informed of the contents of the old settlement in 1694, at the time he entered into the agreements of 1753 and 1756.

This appeal having been heard ex parte, it was ordered and adjudged, that the same should be dismissed, and the decree therein complained of, affirmed, with £50 costs. (MS. Jour. sub anno 1780. p. 701.)