Page:The English Reports v1 1900.pdf/688

interest being due in the year 1694, the mortgagees recovered possession of all the said mortgaged premises, except a house, which the Doctor then lived in.

On the 5th of April 1695, Dr. Loftus made his will, and thereby bequeathed, inter alia, to his wife, the now appellant Lady Irwin, in case she survived him, the brick house wherein he then dwelt, with the court, garden, and stable thereunto adjoining; as also all the furniture of the said house, together with one-third part of the profits of all the other houses, reserving out of the said brick house, so devised as aforesaid, a room to each of his two daughters, Jane and Lettice, as, at the time of his death, should be furnished, with closets to each of them belonging. He also bequeathed to his said wife, and the respondent Dean Bolton, the other two-thirds of all his real and personal estate, in trust for the said Jane and Lettice, their heirs, executors, and administrators. And, if his said wife should marry after his death, then, from and after such marriage, he directed, that the whole entire trust of the two thirds of his real and personal estate should remain to Dr. Bolton, as if his wife were naturally dead: and appointed the appellant, his said wife, and the respondent Dean Bolton, executors [435] of his will, and soon after died; and the executors proved the same.

The appellant Lady Irwin continued in the possession of the said brick house for some time, under the testator's will, and possessed herself of most part of his personal estate, which she disposed of to her own use; and on the 14th of April 1696, she intermarried with one Robert M'Neal.

By indenture of lease, dated the 20th of January 1696, the said Robert M'Neal, and the appellant Lady Irwin, demised the said house, garden, and stables, &c. to Thomas Milburne, for the term of twenty-one years, if Dame Elizabeth should so long live, at the yearly rent of £55, and Milburne, by virtue of this lease, entered upon the premises, and turned the said house into a tavern, which was afterwards known by the name of One Tun Tavern; by which means, the testator's said daughters were obliged to quit their rooms and closets, which were devised to them in the said house for their habitations. And the said M'Neal, in right of his wife, received the said rent of £55 per ann. from Milburne, until the year 1702; although, during all that time, the house was subject to the aforesaid mortgage.

In the same year 1696, some differences arising between the testator's said daughters, and the appellant Lady Irwin and her husband M'Neal, concerning their several interests in the said mortgaged premises; they agreed to refer the same to Mr. John Smith and Mr. Samuel Martin, who soon made and published their award, whereby they ordered the daughters to pay £300 to the appellant Lady Irwin, in full of her interest in the said mortgaged premises; who, and also the said Robert M'Neal, her then husband, knowing that after payment of the mortgage-money due to the Governors of the Blue-Coat Hospital, their demands would be of little value, were so well satisfied with this award, that in their answer to a bill filed against them by the daughters, in the year 1698, they insisted on the award, and prayed, that all the benefit and advantage thereby accruing to them, might be reserved.

The mortgagees finding, that such part of the premises as they had first possessed themselves of, was not sufficient to discharge the growing interest, and much less the arrear of interest due on the mortgage, in the year 1702, brought an ejectment for recovery of the said brick house and premises, which were set to Milburne; and having obtained judgment in such ejectment, they were afterwards put into possession of the said house.

The appellant Lady Irwin, and the said testator's daughters, finding that they could get nothing out of the said premises, until the principal, interest, and costs, due on the mortgage, were fully satisfied, proposed to sell the premises to the Governors of the Hospital, and several others, for £2000 in which sum the principal, interest, and costs, due on the mortgage were to be included; but no person appearing willing to buy the same, as the buildings thereon were very old and of little value; the appellant Lady Irwin, and her said husband M'Neal, went into England, without making any agreement about the said premises.

[436] But in the year 1704, the respondent Alderman Bolton, came to an agreement with the daughters, to give £2100 for the said mortgaged premises, to be paid in manner following; viz. to the Governors of the Hospital £900 which then appeared to be due to them, on account of the said mortgage; £900 to the respon