Page:The English Reports v1 1900.pdf/685

the said John Grant, his executors, administrators, or assigns, or on paying one quarter's annuity, (all arrears of the said annuity of £300 being first satisfied,) then the said John Grant's interest and possession in the said annuity of £300 should absolutely cease and determine.

At the time of this transaction, the appellant was in the thirty-third year of his age, in full health, and of a good constitution; but notwithstanding the above covenants, and the appellant's assurances, it soon after appeared, that the premises (exclusive of the £200 a year rent charge payable to his Lady) were not worth more than the yearly sum of £600 and had been subjected by him to the payment of other annuities and rent charges, to a very large amount, prior to the annuity thus sold to Mr. Grant; and that all, or many parts of the said estates were in the possession of such prior annuitants or creditors, under executions and other legal processes.

The appellant, however, paid the annuity to Mr. Grant down to Michaelmas 1741; but from that time, by reason of the said prior incumbrances, Mr. Grant could never procure any farther payments, and died on the 7th of February 1744, leaving the respondents Weston, Bulkley, Michell, Peters, and Lucy Waite, his executors.

The appellant, by the death of Lord Carbery his father, in 1749, came to a very considerable estate in Ireland; but refusing to pay the arrears of this annuity, and the estate whereout it was payable not being nearly sufficient for clearing the arrears, by, reason of the prior annuities and incumbrances, the respondents, together with the said Thomas Waite, in Hilary term 1753, filed their bill in the Court of Chancery in Ireland, against the appellant and the respondent Brand, praying an account of the arrears of the said annuity of £300 that the appellant might pay them what should appear due on the balance thereof, that his covenant to pay [431] this annuity should be carried into specific execution, and he decreed to pay the same, from time to time, as it should grow due.

To this bill the appellant put in several insufficient and evasive answers, giving the respondents every possible delay, and putting them to very extraordinary expence, in suing processes of contempt and sequestration against his lands. By some of his answers he pretended, that an unjust advantage had been taken of his distress; that the contract for this annuity was unequal, and that the Court ought not to aid this demand, being contrary to the several statutes made against usury, by decreeing a specific performance of his covenant; and that if the respondents would not accept the principal sum advanced him by their testator with interest, which he alledged he was ready to pay, the Court ought not to grant them any relief, but leave them to their remedy at law, and to resort to the lands granted for securing the same; although in his last answer he discovered several annuities, rent charges, and incumbrances, on his said estate in Northamptonshire, amounting to above £2000 a year, prior to this annuity; and admitted, that they exceeded the annual income and value of the estate.

The respondent Joseph Brand, by his answer said, that the agreement for this annuity was made with the appellant in the manner above-stated; that he did not know or suspect, at the time the appellant granted such annuity, that his estate in Northamptonshire was subject to any prior debts or incumbrances, except those mentioned in the deed, the appellant and his attorney both affirming the contrary, and believed that Mr. Grant had not then any notice of any prior incumbrances. He also said, that the purchase of this annuity was a fair and honest transaction, done at the then full market price in London, at the earnest and repeated solicitations of the appellant and his attorney Callaghan, and without any application of Mr. Grant's, who was then in the west of England; and that the appellant was not imposed upon, or deceived by this respondent, or any other person, to his knowledge or belief.

The respondents having replied, issue was joined, and a witness examined by them to prove the fairness of the transaction; but not one witness was examined by the appellant, either to prove the contrary, or for any other purpose. The cause came on to hearing on the 16th of July 1755, before the Lord Chancellor of Ireland, when his Lordship was pleased to decree, that it should be referred to a Master to take an account of what was due to the plaintiffs, on the foot of the annuity of £300 a year, in the pleadings mentioned.