act and deed of William; which issue was tried at Hereford assizes 1st July, 1696, before Mr. Justice Rokeby, and a verdict found for respondents; which was so contrary to the sense of the judge, that he afterwards, 16th of November, 1696, certified that as the evidence appeared to him, it was fit to have a new trial; but by negligence of William Williams's solicitor, in not praying that the issue might be tried in another county, the same coming to be tried 30th April, 1697, before Mr. Justice Samuel Byres, in [101] the same county of Hereford, by a common jury, the former verdict being produced, had such influence, that the second jury gave a verdict for respondents. And the cause being heard on the equity reserved, the Lord Chancellor decreed that William should re-convey the mortgaged estate to the respondent Elizabeth, and account for the interest received of the purchase money, and to deliver up the mortgage deed, and Elizabeth to re-convey the purchased lands to William when she came of age, unless she then shewed cause to the contrary. And on a rehearing, 15th November, 1698, his Lordship confirmed the former decree, since which William Williams died, and administration to him was granted to appellant his brother, who insisted that the decree ought to be reversed, and causes heard upon the proofs taken therein, or that a more proper issue might be directed, and tried in some other county; because it appeared the first verdict was contrary to evidence, and so certified by the judge; and because the last verdict was found upon the very same evidence, and influenced by the credit of the first, which ought not to have been regarded when set aside as contrary to evidence; and because the original articles produced by respondents had a covenant which was not in the counterpart executed by Henry, which interpolated covenant appeared on inspection to be inserted after the rest of the covenants in that part of the articles, and to be the hand writing of Thomas Richards, who alone proved the inserting it; and lastly, because that the conveyances accepted by Henry from William Williams, and solemnly executed, were contrary to the article so interpolated, and agreed with the counterpart of the articles as executed by Henry. (Rob. Price, G. Pauncefort.)
The respondents, in affirmance of the decree, made this case: That William Williams was bred an attorney, and in possession, and pretended title to the lands in Brecknock, 20l. yearly, and knew his younger brother Henry to be a weak, ignorant man, and prevailed on him to purchase those lands, and agreed to pay him 300l. for the same, to be secured on a mortgage of the reversion of divers lands of Henry's, expectant on the death of his mother (then living), worth about 60l. per annum, and that articles were entered into accordingly, and mutual bonds given as stated by appellant; and a covenant in the articles that William should make good his estate to Henry, and that the conveyance and [102] mortgage were executed; but that the covenant in the articles for making good the estate from William to Henry, was omitted in the said William's conveyance to Henry: And that Henry soon after discovered that his brother William had cheated him, he, William, not having inheritance of the estate sold by him, and William having so covenanted to warrant the estate, Henry sued William's bond of 500l. and obtained judgment thereon in August, 1684, and in October following Henry died, and William being afterwards taken in execution upon the judgment, 26th May, 1686, exhibited his bill in Chancery against respondent Katherine, to set aside the judgment, and to foreclose the mortgage; which bill respondent answered in Hilary, 1686, and insisted that William had cheated her husband in selling said estate, which was the defendants, Harcourt and Rumsey's inheritance, and that he had not conveyed with warranty as agreed by the articles, and offered, if William would re-convey the mortgaged estate to her, she would release the judgment, and re-convey William's estate to him; which he refusing to do, she thereupon in her and her daughter, the infant's name, 24 May, 1688, exhibited a bill against William, Harcourt and Rumsey, to discover their title, and that William might execute a conveyance according to the articles, or re-convey the mortgaged estate, they being ready to re-convey to him, and thereupon to discharge the judgment, so that each should be in statu quo; and shewed that Harcourt and Rumsey had by their answers set forth, and had proved a good title to the purchased premisses, and that William had no title thereto; and that William had by his answer confessed he had not a good title, but insisted that Henry knew it to be a bad title, and purchased with such notice, and that if any such covenant for warranty was in the said articles, it was inserted
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