Page:The English Reports v1 1900.pdf/828

to allow it, and decreed that he should hold the premises to him and the heirs male of the body of Thomas Tuite, his grandfather. But Sir Joseph refusing afterwards to perform [90] the articles, his bond was put in suit, whereupon he filed a bill in the Court of Chancery in Ireland, impeaching the articles, and praying an injunction. This occasioned Houghton to file a cross bill against Sir Joseph, for a specific performance of the articles. Sir Joseph, in his answer to this bill, set forth a settlement that he had made in 1706, in consideration of his marriage with Mary Percival, whereby the premises were limited to himself for life, remainder to Mary his wife for life, remainder to the first and other sons of the marriage in tail male: and said, he hoped the court would not enforce the performance of a voluntary agreement, to the prejudice of so many fair purchasers.

On the discovery of this settlement, Houghton filed a supplemental bill against all the parties claiming under it, charging the same to be voluntary, and made with notice of the articles and the cause being at issue, and witnesses examined, was heard on the 11th of February 1711, when the court decreed, that the articles of the 16th of August 1700 should be established and specifically performed by the parties thereto. And this decree being afterwards inrolled, Sir Joseph Tuite, by lease and release, dated the 10th and 11th of March 1712, conveyed one moiety of the premises to George Houghton and his heirs, and covenanted to levy a fine, and suffer a common recovery thereof, which was accordingly done and George Houghton executed a lease of such moiety to Sir Joseph, his executors, administrators, and assigns, for 99 years from the 1st of May 1701, at the yearly rent of £50.

In February 1716, George Houghton sold and conveyed his moiety of the premises, subject to Sir Joseph Tuite's lease, to George West, esq. for £975 sterling, and covenanted in the usual manner, that he had a good title, etc. and that West should hold and enjoy free from disturbance.

By indentures of lease and release, dated the 2d and 3d of October 1717, George West, in consideration of an intended marriage with the respondent. Ann, and of her marriage portion, conveyed the said moiety to trustees and their heirs, to the use of himself for life; remainder to the respondent Ann, for life, for her jointure; remainder to the first and other sons of the marriage in tail male; with other remainders over.

On the 1st of December 1726 George West died, leaving the respondent Ann his widow, and the respondent James his only son and heir; whereupon the widow became entitled to the rent and reversion of the premises as her jointure, and she accordingly received the rent from Sir Joseph Tuite till September 1728, when he died, leaving the respondent, Sir Henry Tuite, his only son and heir; and having made his will, and appointed Richard Malone and Thomas Magan, esq. executors thereof.

There being a considerable arrear of rent due to the respondent Ann out of the premises, she, in Trinity term 1730, brought her ejectment in the Court of Exchequer in Ireland, to which the respondent Sir Henry appeared, and took defence; and the cause being tried at the bar of that court in Easter term 1733, the respondent Ann proved her case, and made out her title; but [91] Sir Henry proving and insisting on his father's marriage settlement in 1706, the court was of opinion that Sir Joseph Tuite being thereby only tenant for life, had no power to make any conveyance of the premises to George Houghton, and that therefore the respondent Ann was barred and directed the jury to find a verdict against her, which they accordingly did.

In December 1732 George Houghton died, having made his will, and thereby devised his manor of Bourmont, in the county of Wexford, to the appellant his second son, and the heirs male of his body, when he should attain twenty-one, upon condition that he should pay £1000 sterling to the testator's other younger children; and he appointed his wife Euphemia, and Nicholas Loftus, esq. (afterwards Lord Loftus) and Francis Annesly, esq. executors.

On the 22d of June 1734, the respondents, Ann and James West, filed their bill in the Court of Exchequer in Ireland, against the appellant and the respondent Sir Henry Tuite, and against Richard Malone and Thomas Magan, the executors of Sir Joseph Tuite, Euphemia Houghton, Francis Annesly, and Nicholas Loftus, the executors of George Houghton, and also against James Houghton, his eldest son and heir; stating the several matters aforesaid, and praying that the executors, heir