Cardrow to surrender to appellant, and in default of payment by appellant, Cardrow to surrender to respondent and her heirs, and this without costs. And respondent got this decree enrolled so suddenly that there was no opportunity of appealing to the Chancellor; but appellant brought a bill of review, a demurrer to which was allowed, because the error did not appear on the face of the decree, and from the whole appellant now appealed, and insisted that the surrender to Cardrow was manifestly intended for 1000l. to be lent by him, and that 800l. thereof was to go to pay the former mortgages; and Cardrow not paying any part, and being privy to the proceedings, the surrender to him ought to be deemed a trust for the appellant. And that Cardrow declaring it a trust for Tym, without her privity, was a fraud and breach of trust. And that her indorsement on the lease to Tym, and that lease itself, were obtained by fraud, on a promise to discharge the 800l. mortgage debt, which was not done; and so her estate, loaded with 1800l. instead of 800l. and that she was then not only a feme covert, but no wise privy to Cardrow's declaration, nor to the contents of the indorsement.
The respondent made this case: that appellant's husband applied to Tym, a scrivener, to borrow 1000l. which Cardrow, his client, agreed to lend. And that Cardrow filed a bill against appellant and her husband to discover incumbrances, and that they on oath denied any, except three mortgages, and a surrender to uses to be declared by appellant's deed; and thereupon the surrender to Cardrow was made, and that Cardrow's not completing his purchase was occasioned by appellant and her husband. And that Tym, in expectation of the loan, lent the appellant's husband and her daughters several sums, and became bail for him, and paid the debt; in all above 500l. and undertook to advance the remainder of the 1000l. and thereupon appellant and husband made the lease to Tym, and he, the husband, covenanted that he and appellant would surrender [17] to Tym, and Tym covenanted to reconvey on payment of the 1000%, and interest. Afterwards Tym and the husband accounted; and he signed the account, and acknowledged that 767l. 10s. was paid in part of the 1000l. and Cardrow, a year and a half after the lease, declared the surrender to be in trust for Tym. And Tym and the husband accounted again afterwards, and 1044l. then appeared to be paid, and the husband signed that account also; and also a third account, which shewed 254l. 13s. 2d. paid by Tym above the 1000l. and by an indorsement on the lease, a year and a half after Cardrow's declaration of the trust, appellant and her husband agreed the premisses should be security for both; and the indorsement was previously read, and appellant signed it without objection. And that in the 1254l. 13s. 2d. only 45l. 13s. was allowed for scrivener's fees, and all the rest money paid to appellant, her daughters and husband; and that this was not Tym's money, but borrowed and secured by him. And that appellant, after her husband and Tym's death, filed her bill; but distrusting her own equity, set up a title in her daughters, not disclosed by her answer to Cardrow's bill; and under colour of such title, ejectments were twice delivered but not proceeded on; and that in the decree, respondents had not any allowance for scrivener's fees, nor for any sum not actually proved paid. And this decree appellant thought so favourable, that she acquiesced, and proceeded before the Master for near three years, and the Master reported 1086l. 4s. actually paid. And then appellant absconded, and after some compulsory proceedings, petitioned for two months to look into the report; and then filed frivilous exceptions; and whilst these stood in the paper for argument, filed a bill of review, which was dismissed by the Chancellor. And then appellant petitioned to set down the exceptions, which was ordered; and then on hearing were over-ruled, appellant not appearing to argue them. And when the Master's report must have been confirmed, as of course, appellant brought the present appeal, which on these circumstances respondent insisted ought to be dismissed with costs.
And, after hearing council on both sides, it was ordered and adjudged by the Lords, that the petition and appeal should be dismissed, and the decree of the Court of Chancery affirmed. (Journ. vol. xvi. p. 265.)
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