Page:The English Reports v1 1900.pdf/959

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BLENKARNE v. JENNENS [1708]
II BROWN.

COPYHOLD.

Case 1.—William Blenkarne,—Appellant; Robert Jennens, and Others,—Respondents [4th March 1708].

[Mew's Dig. iv. 435; x. 151.]

[A defective surrender of a copyhold estate for securing a sum of money, which was become void, by not being presented in due time, made good against a subsequent purchaser, with notice.]
[A. having notice of an incumbrance, purchases in the name of B. and then agrees that B. shall be the purchaser, who accordingly pays his money without notice of the incumbrance. Though B. did not employ A. nor knew any thing of the purchase till after it was made, yet B. approving of it afterwards, made A. his agent ab initio, and therefore shall be affected with the notice which he had.]

2 Vern. 609. Viner, vol. 6. p. 55. ca. 15.

One Charleton Whitelock, Esq. being seised in fee of a small copyhold estate at Walton upon Thames, in the county of Surrey, and being indebted to Carew Guidott in £200, he, on the 23d of November 1699, made a conditional surrender of this estate to Guidott, redeemable on payment of the £200 with interest; and he also executed a bond in the penalty of £400 as a collateral security.

Whitelock being indebted to the appellant in £82 on a judgment, and Guidott having, for near four years, neglected to [279] present his surrender at the manor court; the appellant, in order to recover his debt, treated with Whitelock, in the name of the respondent Moore, but without his privity, for the purchase of this copyhold estate; and though he knew of Guidott's surrender and debt, yet he imagined the surrender to have become void, by not being presented and inrolled in due time.

The appellant having agreed for this purchase for £300, procured a surrender of the estate from Whitelock to Moore, on the 29th of March 1703; and Moore being afterwards acquainted with this transaction, and approving of the purchase, the surrender was presented at the next court; and he was admitted, and paid his fine and purchase money accordingly; £218, part whereof was received by Whitelock, and the remaining £82 paid by his order to Blenkarne, in satisfaction of his judgment debt.

In Trinity term 1704, Mr. Guidott being informed of this purchase, exhibited his hill in Chancery against Moore, Whitelock, and the appellant; praying, that they might either redeem his mortgage, or be foreclosed; but he and Whitelock soon afterwards dying, the suit was revived, and carried on by the respondents Jennens and his wife.

On the 27th of November 1707, the cause was heard at the Rolls; when his Honour decreed, that the defendant Blenkarne should pay the plaintiffs the £82 which he had received as aforesaid, with interest from the 21st of May 1703, when the same was paid to him; and that the other defendant Moore should pay to the plaintiffs the whole interest of the £200 from the 23d of November 1699, to the 21st of May 1703, and the remaining £118 and interest, together with their costs; or, in default thereof, that he should surrender the premises to the plaintiff's, who were decreed to hold and enjoy the same, against Moore, and all claiming under him.

From this decree, the defendant Moore appealed to the Lord Chancellor Cowper; and the cause being heard before his Lordship, on the 8th of May 1708, it was decreed, that the defendant Moore should pay the plaintiffs their principal and interest, and that the defendant Blenkarne should repay him the same, with interest, and should also pay the plaintiff's their costs.

Upon the application of the defendant Blenkarne, this cause was re-heard before his Lordship, on the 3d of July following; when it was decreed, that the defendant Blenkarne should, within a month, pay to the defendant Moore what he had paid as

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