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Saville Finch pg 2

 

Finch against Finch

 

THE PROCEEDINGS cont'd

 

" Reports of  Cases argued and determined  in the High Court of Chancery " published in 1820 was compiled by William Browne Esq. Barrister at Law

 

Cont'd from page 1

 

By indentures of lease and release 24th and 25th January 1769 between Saville Finch of the first part, Mary Finch [ who was no party to the lease for a year] of the second part, Lord Middleton of the third part, and William Sitwell of the fourth part; reciting the mortgage to Lord Middleton that Elizabeth Finch was lately dead, and that Saville Finch as the only son and heir at law of the said Elizabeth Finc, and also under the general divise in her will, was to become entitled to the equity of redemption in the premises, subject and charged, together with the other estates of the said Elizabeth Finch, with the payment of 20,000lis to Mary, and reciting that there was due to Lord Middleton, for principle and interest 18,020 lis; and that Sitwell at the request of Saville and Mary, had agreed to lend Saville 25,000lis on the security of the premises, and that Mary had consented and agreed to release the premises from the payment of the sum of 20,000lis. But nevertheless without prejudice of her right of claiming the same and the interest thereof out of the other herediaments charged with the payment thereof. In consideration of 18,020 lis paid to Lord Middleton and 6980 lis  to Saville Finch, Lord Middleton released, and Saville and Mary released and confirmed to Sitwell and his [ see below *] heirs the premises comprised in the mortgage of July 1758 to hold to Sitwell and his heirs, discharged of the 20,000 lis to Mary and interest, and of the proviso of redemption in Lord Middleton's mortgage, but subject to a proviso for redemption by Saville upon payment of the mortgage money and interest.

 

There was also a bond from Saville to Sitwell for payment of the mortgage money and interest, and performances of covenants. A bargain and sale was enrolled in the Chancery of the same date with the mortgage. Saville Finch and Judith his wife of the first part, Mary Finch of the second part, William Sitwell of the third part covenant that Saville, Judith his wife , and Mary would levy a fine to Sitwell of the premises, but which does not appear to have ever been levied. There was a further charge to Sitwell by deeds of 2nd July 1772 for 5,000 lis in which Mary joined but the covenant of redemption was by Saville only, and another charge of 3,000 lis more by endorsement in July 1775, but Mary did not sign this endorsement, nor did she receive any of the money borrowed upon the mortgages, or any consideration for joining therein.

 

The plaintiff Mary had been paid the 20,000lis given by the mothers will in 1774.

 

Saville Finch by will dated 21st August 1788 duly attested to pass real estates, gave several legacies and annuities and inta alia gave to his sister Mary Finch one annuity or yearly sum of 200 lis for and during her natural life. Subject to and charged with the payment of the legacies, annuities and debts, and bequeathed all and every his real and personal estate whatsoever and wheresoever, and of what nature or kind soever the same might be unto Judith his dear wife, her heirs executers, and administrators and appointed her sole executrix. and by a codicil dated 24th August following over and above the 200 lis a year he had given to his sister by the will, he further gave her the additional sum of 300 lis more payable in the same manner as the 200 lis a year. and ordered this to be added to and make a part of his will. This codicil was attested by two witnesses only.

Saville Finch died 20th September 1788 three weeks after the date of the will leaving the defendant Judith his widow but no issue.

 


 

 

[ *] The widow having gotten possession under the will, and also having possession of the deeds and writings the bill was filed praying [ among other things which  were either compromised or deserted at the hearing of the cause ] an account of the rents and profits of the estates in Kent, and at Brinsworth and Rotherham. and that they might be paid to her that 20,000lis with interest from the death of Elizabeth Finch, might be  paid to the plaintiff out of the personal and real assets of the said Elizabeth Finch, as a legacy given by her will, or as a debt due from Saville Finch. That the two annuities of 200lis and 300 lis under the will and codicil of Saville Finch might also be paid to her, and that the estates at Brinsworth and Rotherham might be exonerated.


 

 

 

THE QUESTIONS AND ARGUMENTS

 

The questions at the hearing which lasted several days were reduced to three.

1st

As to the plaintiffs claim of a life estate in Brinsworth and Rotherham.

 

2nd

As to her claim of two sums of 20,000lis each one under the agreement between Elizabeth Finch and Saville her son, by the memorandum of the 14th Aril 1759 and the other under the will of her mother.

 

3rd

A question of satisfaction from the two annuities given to the plaintiff given by the will and codicil of her brother Saville Finch.

 

Mr. Attorney General, Mr. Richards, and Mr Sutton for the plaintiff.

The first question is upon the right of the plaintiff to the Brinsworth and Rotherham estate - Saville Finch having died without issue, the plaintiffs right under the settlement came immediately into possession. There can be no objection to her title, unless anything arising from the mortgages can affect it. As to that, the instruments are such as to effect a mortgage upon the Yorkshire estates. They are all to raise money for the brother, and are his debts only, and not hers. In none of the instruments is the equity of redemption reserved to her. Therefore as between her and her brother there is nothing to [ see below ]disappoint the limitations.

So if a wife pledges her estate for the husbands debt it continues his debt and his effects are liable to it, she has a right therefore to have the estate exonerated of the mortgage. The recital that Saville Finch was entitled to the equity of redemption was a mistake. Mary was entitled to redemption as far as it went to her life estate in remainder, and if she executed that deed under a mistake the court will relieve her from the effects of that mistake.

 Secondly as to her claims to the two sums 20,000 lis each her claim to the first sum is under the agreement of 1759 by which the mother diverted the Yorkshire estates out of herself, and the brother covenanted  to pay to his sister 20,000 lis when he should come into possession of the Kentish estates for her fortune. It is objected that she has already been paid one sum of 20,000 lis and has given a release for it, and it is satisfied by the same sum being given that where a party has entered into covenants for valuable considerations to pay a certain sum of money and afterwards by a will gives the same sum without any expressions showing that he intended an additional fortune, by the will he must be intended to have adverted to the obligation by the covenant, but here nothing was incumbent on Mrs. Finch with respect to her daughter Mary.

It was all bounty and argues that she did not mean to add to the former sum, they must argue on the other side that where she gave by her will 20,000lis to her daughter she must have meant it as a gift not to her daughter but to her son to whom she gave the estate subject to the charge. Where there are gifts of two instruments they must both operate unless there is evidence to show the intention to be otherwise. But this being a case of mere bounty is more like the case of legacies where two sums are given in different instruments they must both prevail.

 

Con'td

Saville Finch pg 3

 

 

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Transcribed by John Doxey from:

" Reports of  Cases argued and determined  in the High Court of Chancery " published in 1820 was compiled by William Browne Esq. Barrister at Law

 

 

 

 

 

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