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Saville Finch pg 3

 

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

 

THE QUESTIONS AND ARGUMENTS

Cont'd from page 2

 

Mr. Solicitor General, Mr. Mansfield, Mr. Mitford, and Mr. Campbell for the defendant

 

The questions are reduced to three.

1

Whether the plaintiff is entitled to the Brinsworth and Rotherham estates?

2

A question arises out of this whether if entitled to the estates she is to take them exonerated of the charge?

3

Whether she is entitled to two sums of 20,000lis each, or to one only?

 

The first and last of these questions depend on all the transactions.

Miss Finch must make out, that it was the intention of her mother that she should have the estates as well as the 20,000lis.

I f the plaintiff has any right it must be under the voluntary settlement of 1759 by which Elizabeth Finch in consideration of natural love and affection agrees to assure Saville Finch all her estates in Yorkshire, and that the son agrees to pay off the mortgage debt, and to pay to his sister when he should be in possession of the estate in Kent 20,000lis for her and as her fortune.

The Brinsworth and Rotherham estates were part of the Yorkshire estate which passed under this voluntary settlement. The second settlement only varies this as to the rents and profits. The question is whether the Brinsworth and Rotherham estates were not within these agreements; and it seems to have been the intent of the parties that it was, and that Miss Finch was to receive 20,000lis for her interest in those estates. Then comes the will whereby she charges and makes subject all the estates to the payment of 20,000lis as and for a fortune for her daughter and directs it to be paid six months after her decease, and among the enumeration of the estates which are subjected to the charges are all her freehold manors, messuages , lands tenements, tithes, and herediaments, whatsoever. Now she had no tithes but in Brinsworth and Rotherham and subject to the charges she gives all real estates to her son.

She therefore intended he should take all the estates upon paying the 20,000lis. How is it then possible to argue that giving it as a fortune, she meant this to be a second fortune?

Suppose the whole effect of the first agreement not to be done away by the second, it cannot be conceived that Mrs. Finch meant that after settling the Brinsworth and Rotherham estates that Miss Finch should both take them and the 20,000lis She might is she chose to abide by the agreement take either the 20,000lis or the estates, but that was the utmost , she could not take both.

Then in 1766 Mrs. Finch died, the plaintiff was not then very young the meaning of the family in the transaction was then very well known. The present bill was not filed until 1791 when the meaning of the parties was not so well known, but they had not been left in ignorance what it was.

 

Then as to the mortgage to Sitwell it is certain that where two persons entitled to different interest in an estate mortgage it to a third person, and the equity of redemption is reserved to one of them only, it may vary their interest. It is necessary for this purpose to look into the recitals of the deeds.

It is true that if a man mortgage his wife's estate and reserve the equity of redemption to himself he shall still continue seized " jure usoris ' but if it is not so, if by the recital if it appears that the intent of the parties is defferent.

The intention of the mother was that Miss Finch should receive 20,000lis for her interest in Brinsworth and Rotherham. She did receive 20,000lis and gave a release for it, and never thought of claiming the other 20,000lis until 1791.

She by her acts and by joining in the security put a construction on the transaction, and has bound herself by a limitation for a valuable consideration, therefore we submit she has no claim on the Brinsworth and Rotherham estates.

If we are wrong in this point the prayer of the bill to have the estates exonerated is also wrong; the utmost  claim. she could have would be for a pro rata contribution.

 

 

 

 

" To be continued"

 

 

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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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