Page:The English Reports v1 1900.pdf/832

entitled to all the indulgence which a court [96] of equity could give, consistent with the security of those respondents. That the court, by ordering the appellant's cross bill to be taken off the file, deprived him of a material part of his defence to the bill filed by the Wests in February 1752, which might have arisen from their answer to his cross bill; and which bill the court ought to have considered as a cross bill, not as a bill of review and reversal; and the Wests having once submitted to answer that bill, by obtaining an order for time, ought not to have been permitted to retract such submission at any time afterwards.

For the respondents Ann and James West it was argued (W. Noel, K. Evans), that their original bill was brought to recover a satisfaction in damages, for a breach of covenant by George Houghton, the appellant's father and testator, and to be paid the same out of his real and personal assets; and as the several decrees and orders made in that cause had directed such satisfaction to be made out of those assets, in a just and equitable manner, the decrees and orders were just and agreeable to the rules of law and equity, and therefore ought not to be reversed or altered. That the respondents were not only entitled to receive such satisfaction out of the assets of George Houghton, under his covenant; but as the proper representatives both of his real and personal assets were all parties in the cause, the court was bound in justice to make the decree they had made, and not to turn the respondents Ann and James West, upon the assets of Sir Joseph Tuite; for George Houghton paid no consideration as a purchaser to Sir Joseph for the conveyance made to him, but became entitled to it merely under a voluntary agreement for dividing the premises in question; and how far the persons standing in the place for George Houghton could entitle themselves to any remedy or relief for a breach of covenant entered into with him for quiet enjoyment, was a question which the respondents the Wests, who were purchasers for a full and valuable consideration, and were entitled to a short and easy remedy under his covenant, were not compellable to sustain, and especially in ease or favour of a mere volunteer claiming under his will. But supposing the remedy to be clear and easy in that respect, yet Sir Joseph Tuite might have left no assets; or if he had, it night be attended with great delay and expense to follow those assets; and if the respondents could be entitled to any relief against them, the appellant, as standing in the place of George Houghton, who took the conveyance from Sir Joseph Tuite, must be more clearly entitled to a satisfaction for any damages which he might sustain by a breach of the covenants entered into by Sir Joseph; and therefore he would be entitled to recover over against Sir Joseph's estate, a satisfaction for any damages he might sustain by being obliged to make the respondents such satisfaction as was directed by the decree. That the respondents were purchasers for a valuable consideration under the marriage settlement of George West, who was likewise a purchaser for a valuable consideration from George Houghton; but the appellant being merely a volunteer, and standing in the place of George Houghton the covenanter, could have no equity to retard [97] or vary the respondents remedy against or out of the assets of Houghton. If, however, the appellant had any such case as would entitle him to turn the respondents the Wests upon the assets of Sir Joseph Tuite, to receive a satisfaction thereout in case of the assets of George Houghton; yet he had no bill filed, or cause brought on to hearing, which could enable the court to make any such decree; and upon the respondents bill, no other decree could have been made than what was made. For though the respondents had brought the representatives of Sir Joseph Tuite before the court, and prayed relief against them, yet that was done merely from an apprehension, that George Houghton might not have left assets, and ought to be no ground for turning them upon the assets of Sir Joseph Tuite.

On behalf of the respondent Sir Henry Tuite, it was insisted (R. Henley, C. Yorke), that he was and ought to be considered as a purchaser of the premises in question, for a valuable consideration and without notice, under the settlement of May 1706, made upon the marriage of his father and mother, and had the legal estate vested in him by that settlement, which was prior to any conveyance alledged to have been made to the appellant's father. That Sir Henry was not bound, nor ought to be any way affected by the decree of 1711, he being no party thereto, though he was then born; and which was a fact known to the appellant's father, at the commencement of the suits in which that decree was made, being disclosed by the answer to the