Page:The English Reports v1 1900.pdf/831

was notorious to everybody. The two first limitations in that settlement were to the use of Diana Tuite, and Sir Joseph Tuite; the one of them the party executing the agreement of 1698, the other a party to the agreement of 1700, and the principal trustee was a subscribing witness to this latter agreement. That besides these circumstances of notice and fraud, the decree of 1711 effectually established and ordered a specific performance of the agreement of 1700, upon Sir Joseph's own bill for setting it aside; and in opposition to this settlement, which was relied on and put in issue in that cause by Sir Joseph himself, and by the trustees, who were brought before the court on Houghton's supplemental bill. This decree Sir Joseph completely obeyed, and as it had never since been impeached, it was now a conclusive judicial determination, not only in favour of the agreement, but against the validity of the settlement so far as it varied from that agreement; and this alone was a sufficient foundation for the court to have decreed the respondent Sir Henry Tuite to have restored the possession to the respondents the Wests, and to have accounted to them for the rent. That if Houghton afterwards entered into warranty with George West, he had the same prior engagement from Sir Joseph to himself for the support of his own title; and the warranty to Houghton was not less obligatory upon the heir and executors of Sir Joseph, than the warranty from himself to West was obligatory upon his own heirs and executors. That the eviction of Ann West was tortious, and not by legal title; they had therefore no right to recover against Houghton for a breach of covenant, as he could have no remedy [95] over for a recovery in value against the representatives of Sir Joseph Tuite, upon an entry where the right neither was or could be tried; and it would be extremely hard to conclude Houghton by a trial, to which he was neither party or privy; and when no proper measures were taken by the Wests to recover the possession, nor was the respondent Sir Henry compelled to assert his pretended right, as he ought to have been. But even supposing there had been a breach of covenant, yet the compensation was properly prayed by the bill of the Wests against the representatives of Sir Joseph Tuite; all proper parties were before the court; the bill required no satisfaction or relief against the representatives of Houghton, but only that they might put the £2000 bond, which had been taken in the name of George Houghton, in suit against the representatives of Sir Joseph, and might assist the Wests in the recovery of the premises. That the court should have decreed the Wests a perpetual injunction, founded on the decree of 1711, establishing the articles of 1700, against all persons claiming under the settlement of 1706, as an equitable title conveyed to them on their purchase; or if that could be doubted, the court should at least have decreed the Wests a satisfaction for the loss of the purchase, both out of Houghton's and Sir Joseph's assets; and that on Houghton's representatives making that satisfaction, they should have been at liberty to prosecute the decree against the real and personal assets of Sir Joseph Tuite. But if the respondents, the Wests, were entitled to any satisfaction out of the manor of Bourmont, the court ought to have decreed James Houghton, the appellant's elder brother, to have accounted for the profits, or for the £363 15s. received by him thereout during the appellant's minority; and he ought to have paid, or at least borne a proportional share of the charge induced upon this estate. That the court ought not to have directed any issue to try the value of the manor of Burne, as the same appeared to have been sold by Houghton to West in 1716, subject to a lease of ninety-nine years from May 1701, at the yearly rent of £50. And though the real value of the lands had been ever so great, yet West, or any person deriving under him, could not have been in any sort benefited thereby during the lease, which there remained near fifty years to come; and the respondents, the Wests, being only entitled to £50 a year for the residue of the ninety-nine years term, and to the value of the reversion at the expiration of that term, the making them a compensation as decreed, according to the value of the inheritance in 1728, with interest from thence, was not agreeable to the contract with George West. Neither ought the court to have dismissed the appellant's petition for a rehearing, because it appeared that George Houghton was innocent, and that Sir Joseph Tuite was the person guilty of the fraud and breach of covenants, in the articles of August 1700, and the conveyance of March. 1712; and there was great reason to believe, that the heir and executors of Sir Joseph concurred in stripping the respondents, Ann and James West, of the possession of the premises; and therefore the appellant conceived, he was