Page:The English Reports v1 1900.pdf/694

ticular clause against Blackwell's title and all claiming under him, and the further confirmation thereof in the act of explanation, and his claim, and the allowance thereof, and certificate had thereon, and the subsequent letters patent.

On arguing this plea upon the 28th of May 1677, the benefit thereof was saved to the hearing; and as to the account of profits, the plaintiff's counsel waived the same.

The defendants Carter, Ferris, and Knightsbridge, by their answer, denied the knowledge of any trust in the Colonel for General Vernon, and insisted upon the said mortgage for £2000 and interest; and averred, that the whole money then remained really due.

The cause being at issue, divers witnesses were examined on both sides, and several letters of Colonel Vernon, and other persons, were exhibited and proved by the plaintiff. And on the 14th of May 1686, the cause came on to be heard; when the Court declared they saw no cause to give the plaintiff any relief, and therefore dismissed his bill.

This decree of dismission the Colonel got enrolled, and in January following he died; having made his will, and thereby devised his real estates to trustees and their heirs, for payment of his debts and legacies; and after payment thereof, in trust to settle the same, or what should remain unsold, upon his daughters Elizabeth and Mary, and their issue, in such manner as they might not have power to sell or alien the same in case they died without issue; with remainder to his brother John Vernon, and his first and other sons in tail male, with divers remainders over; and therein directed, that his said daughters should be allowed £60 a-year a piece for their maintenance, till his debts and legacies were all paid.

Elizabeth died soon after her father, without issue and unmarried, and Mary survived her; whereby she became entitled to all her father's estate.

In 1705, John Vernon brought his appeal in the House of Lords in Ireland, against the said Mary, as surviving daughter [444] and heir of Colonel Vernon, complaining of the said decree of dismission of the 14th of May 1686; and praying, that the same might be reversed, and that he might have an account of the rents and profits of the premises, and a reconveyance thereof to him and his heirs, and the possession delivered up to him.

Mary Vernon, by her answer to the said appeal, set forth her father Colonel Edward Vernon's will; and contended, that the estate in law in the lands was in trustees, and that she had but an estate for life therein, which was not to take place till after payment of her father's debts and legacies; and that the next in remainder upon her death, was Edward Vernon, only son and heir of John, the testator's brother, (which John died soon after the testator,) who resided in England, and none of whom were made parties to the said appeal.

On the 14th of July 1705, the cause on the appeal was heard; when the said decree of dismission of the 14th of May 1686 was reversed. And on the 26th of July 1707, the cause was further heard; when the former decree of reversal of the said decree of dismission was confirmed; and two-thirds of the Upper and Lower Hollybrooks, with the appurtenances, were decreed to the said John Vernon and his heirs, discharged from all incumbrances made by Colonel Edward Vernon, or any persons claiming under him. And the said Mary Vernon was decreed to pay to the said John Vernon, his executors and assigns, £1000 within twelve months, with interest; and in case the same was not then paid, the said John Vernon was to be put into possession of Clontarff, with the appurtenances, and the remaining third of the Hollybrooks, and to continue in possession thereof till the said £1000 and interest should be fully paid, which was to be a charge on Clontarff, and the said remaining one-third part of the Hollybrooks, in the said Mary's possession, as a security for the re-payment thereof, at one entire payment, with lawful interest, till the same was fully paid, from the date of the said decree; but the person of the said Mary was not to be in any wise subject to the payment of the said £1000 and interest. And she was also decreed to pay the said John Vernon £100 for the costs in the said suit: and it was further ordered, that the said Mary, who had the estate in law, should convey to the said John Vernon and his heirs, the said two-third parts of the Upper and Lower Hollybrooks, with the appurtenances; and that the said decree should be final and conclusive to all parties.