Page:The English Reports v1 1900.pdf/769

VOLUME II.

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BARON AND FEME.

Case 1.—George, Earl of Huntingdon,—Appellant; Frances, Countess Dowager of Hutingdon, and Others—Respondents [12th January 1702].

[A wife joins with her husband in a mortgage of her own inheritance, in order to raise money to buy him a place, and the husband covenants in the mortgage to pay the money. He accordingly pays the money, and takes an assignment of the mortgage in trust for himself. The mortgage being for a term, the husband devises it for the benefit of his younger children. But on behalf of the eldest son and heir, the premises were held to be discharged from any demands by the younger children, and that the term should be assigned as he should direct.]

2 Vern. 437. 1 Eq. Ca. Ab. 62. ca. 4. Viner, vol. 4. p. 69. ca. 9. vol. 10. p. 345. ca. 17.

By indenture, dated the 25th of November 1681, and by a fine levied in pursuance thereof, Theophilus, Earl of Huntingdon, and Elizabeth his then wife, settled certain lordships, manors, lands, and hereditaments in the county of York, which were the estate and inheritance of the Countess, as one of the daughters and co-heirs at law of Sir John Lewis, to the use of the said Countess Elizabeth, and her assigns, during her natural life; and after her decease, to the use of the appellant her son, and the issue of his body, with other remainders over; but subject to a power reserved to the Earl and Countess, during their joint lives, to revoke and limit new uses.

Some time afterwards, the Earl being desirous of purchasing the place of captain of the band of gentlemen pensioners, he prevailed with the Countess to join with him in mortgaging the settled estate, for raising £4500 to make such purchase; promising to repay the money out of the profits of the place, or otherwise.

Accordingly, by a deed dated the 1st of August 1682, the Earl and Countess revoked all the former uses; and declared, that in consideration of £4500 paid to the Earl by one Cropper, the premises should remain and be to the use of the said Cropper for a term of 1000 years, subject to redemption on payment of the £4500 and interest; and after the expiration, or other sooner determination of the said term, to the use of the said Countess Elizabeth, and her assigns, during her natural life; with remainder to the appellant, and the issue of his body; and such other remainders over as were limited by the first settlement. And by this deed, the Earl covenanted that he would pay off the mortgage-money.

[2] On the 2d of January 1683, Cropper, together with the Earl and Countess, assigned over this mortgage to one Mr. Newport and Sir William Cooper; subject to a proviso or agreement, that if the Earl and Countess, or either of them, should pay the £4500 and interest, the term of 1000 years should be assigned to the said Earl and Countess, or to one of them, or as they or either of them should appoint.