remainder to trustees to preserve contingent remainders: remainder to Ann Willoughby for life, without impeachment of waste: remainder to trustees to preserve contingent remainders: remainder to the first and other sons in tail male: remainder to the daughters, as tenants in common in tail; remainder to the use of Ann Willoughby, her heirs and assigns for ever. Other premises, situated in Shaftesbury, were settled upon the trusts, afterwards declared concerning certain leasehold and mortgaged premises; and, as to the South Sea Annuities, a trust was declared for Ann Willoughby until the marriage; and afterwards to permit her husband to receive the dividends during his life; and after his decease to permit his wife to receive the dividends for life; and after her decease to divide the stock among the younger children of the marriage in equal proportions; and in case there should be no younger children, to the person or persons, who, at the decease of Richard Jackson and Ann Willoughby should be entitled to the said premises at East Knoyle by virtue of the uses aforesaid.

The settlement contained a proviso, that it should be lawful for Richard Jackson and Ann Willoughby during their joint lives by any deed or deeds, writing or writings, under their hands and seals, and executed by them in the presence of two or more credible witnesses, to alter or revoke all or any of the uses, before limited, of said farms and premises at East Knoyle, and to limit any new uses

in lieu thereof. The same power was given as to the [*358] stock. Powers of leasing were also given to the husband and wife; and for a separate provision for her she conveyed to the same trustees certain premises described, and all other her real, leasehold, and personal, estate, in trust for her sole and separate use, subject to a power of appointment by her; and in default of appointment, for the wife, her heirs, executors, &c.

All the issue of the marriage died infants during the lives of their parents. By Indentures, dated the 25th of November, 1745, Richard Jackson and his wife demised the Lye Farm and the Burnthouse Farm for one thousand years, to be void on payment by Jackson, and Ann, his wife, or either of them, their or either of their heirs, executors, administrators, or assigns, of 2001., lent to Richard Jackson by Child, with interest. Richard Jackson afterwards borrowed 4007. more from Child; which sum also was by indentures, dated the 31st of December, 1745, and the 1st of January, 1746, charged upon the same premises for the residue of the term; with a similar proviso for redemption by Richard and Ann Jackson, &c. Jackson and his wife also covenanted to levy a fine; which, it was declared, should enure to Child during the term; subject to the said proviso ; and after the expiration or sooner determination of the term, to the use of Jackson and his wife for their lives, and the life of the survivor, and after both their deceases to the use of the heirs of their bodies, and, for default of such issue, to the right heirs of the survivor of Jackson and his wife; with covenant for farther assurance. A fine was levied accordingly. Richard Jackson afterwards paid

off the mortgage; and took an assignment of the term, and a reconveyance of the estate to himself in fee. Ann Jackson died [*359] in 1772 without issue; leaving her husband surviving; and John Cooth, her heir at law, who died in 1776; leaving Charles, his eldest, and Edmond, his second, sons. Charles Cooth borrowed 600l. from Richard Jackson; to secure which sum by indentures, dated the 15th and 16th of January, 1784, reciting, that the premises, after mentioned, would descend to Charles Cooth after the death of Richard Jackson, who was entitled thereto for his life, as tenant by the courtesy, Charles Cooth granted the reversion of the Lye and Burnthouse Farms to Jackson and his heirs, subject to redemption on payment of 600l. and interest.

Charles Cooth, not having paid the mortgage, died in 1786, without issue; leaving his brother Edmond his heir at law; and having by his Will, dated in 1782, devised all his reversionary interest in the Lye Farm to Hester Bower, her heirs and assigns; whom he appointed his executrix. Richard Jackson died in 1796: having by his Will, dated in 1795, devised all his lands in East Knoyle to the Defendant Gilbert Jackson, in fee-simple, charged with some annuities. Hestor Bower died; leaving the Plaintiff Innes her heir at law.

The Bill in the first cause was filed by Innes and Edmond Cooth; praying an account and redemption, and a reconveyance by Gilbert Jackson of the Lye Farm to the Plaintiff Innes, and of the Burnthouse Farm to the Plaintiff Cooth; suggesting that the reservation of the equi. of redemption by the indentures of 1746 to the survivor of Rich. Jackson and Ann, his wife, was a mistake or inadvertence of the person, who prepared the deed; or an imposition on Ann Jackson; as she had no intention of parting with the inheritance of her estate farther than to assist her husband in making a security to Child for the loan of 400l.

[* 360]

*The Defendant Gilbert Jackson by his Answer represented, that the object of the fine was, beyond the mortgage, for the purpose also of destroying the ultimate limitation to the heirs of Ann Jackson; that the mortgage to Child having been paid off by Richard Jackson in 1754, chirograph of the fine and indenture of 1746 were delivered up to Richard Jackson; and were afterwards lost or mislaid by him; and were missing for a great number of years; that Richard Jackson, during the whole time they were missing, apprehended, that for want of them, the premises would descend to the heir of Ann Jackson; as if the fine had not been levied, or the deed executed; and under that mistake the mortgage was taken from Charles Cooth; insisting, that, as that mortgage was executed under mistake, and with the idea, that, if the deeds should not be found, Cooth would be entitled, and, as they have been since found, and are now in the Defendant's custody, the said mortgage was void; and the Plaintiffs have no right of redemption.

The Cross Bill, filed by the Defendant Gilbert Jackson, repre

sented that Richard and Ann Jackson, in January, 1746, agreed to revoke their former uses in their marriage settlement respecting the mortgaged premises; and to resettle the same; and that having about the same time occasion for the farther sum of 400l., they borrowed that sum from Child; and Jackson also executed a bond and warrant to Child for the sum of 600l. The Cross Bill farther stated, that Ann Jackson by her Will, dated the 16th of December, 1770, and duly executed, gave and devised to her husband Richard Jackson, his heirs and assigns forever, all her estate, real and personal, to be entirely at his disposal after her decease, by deed, will, or otherwise, as he shall think fit; and she did thereby bar all her right, claim, &c. as far as in her lay, against all other persons whatsoever; leaving him said Richard Jackson *her sole [* 361] executor and possessor in fee of all, that she should die possessed of, or in any wise entitled to.

The prayer of the Cross Bill was that the mortgage of 1784 may be declared to have been executed by Richard Jackson under such mistake, as before-mentioned, and to have been afterwards abandoned and given up; and that the Defendant may be decreed to deliver up the deeds, to be cancelled, and assign the term.

An objection was taken by the Plaintiff in the cross cause; on the ground, that there was another person, entitled as heir to the Lye estate, who was not made a party: the Defendants in that cause on the other hand against the suggestion, that it should stand over, insisting, that this objection always comes from a Defendant; and formerly the Bill was dismissed: but the modern practice has relaxed that strictness; permitting the Plaintiff to amend on payment of the costs of the day; but a Plaintiff, bringing his cause to a hearing without proper parties, cannot put it off without consent; the Defendant has a right to have his cause heard; and the Plaintiff must either proceed with the record, as it is, or to have his Bill dismissed.

The Lord CHANCELLOR [ELDON].—I do not know an instance of permitting a Plaintiff to take an objection for want of parties against the will of the Defendant: a practice, which would strike at the root of all the principles, by which testimony has been guarded in this Court. Cases of exception may occur, where, for instance, the Plaintiff was not aware of the existence of persons, whose claims could touch the interests of those who are upon the record: but that ought to be clearly established; and the Plaintiff ought to apply, as soon as he has obtained that knowledge. [* 362] These parties are therefore entitled to insist, that the cross cause shall proceed.

Mr. Richards, Sir Samuel Romilly, and Mr. Heald, for the Plaintiffs in the original cause.

The Equity of the Plaintiffs in the original suit is, that no intention to change the use is shown by recital, or otherwise: an intention, which must have been known to the husband of Mrs. Jackson;

whose acts are perfectly inconsistent with the knowledge of it. There is no distinction upon the ultimate limitation of the uses of of the fine to the survivor of the husband and wife. The earliest case upon this subject is Broad v. Broad (1): á very imperfect note certainly; and there are several old cases to the same effect: viz. that, where a married woman has joined in a conveyance by fine of her estate, and the Equity of redemption is reserved to the husband alone, yet there is a resulting trust for the wife: the operation of the fine so levied, not extending beyond the special purpose: either to let in any other incumbrance; or to exclude the future interest of the wife: no agreement or intention appearing to displace her interest farther, or to give any other interest to him. Another class of cases is, where the wife joins in a mortgage of her estate for her husband's debts; reserving the equity of redemption to herself: she shall be a creditor upon the husband's estate. That was decided in Clinton v. Hooper (2); where all the authorities on the subject are collected; and the result is, that, though the wife appears in the most solemn manner to have encumbered her estate for her hus

band's debt, the presumption is, that she meant to stand [* 363] as a creditor: an agreement to that effect, not appearing, but being presumed. The principle of that clear doctrine applies to these circumstances; affording the inference of an agreement, that the limitations were to remain, as they previously stood. This must be determined upon the same principle, as if Doctor Jackson, having a son, had levied a fine, and left the estate to a stranger; could he thus through the medium of mortgage make himself tenant in tail, and acquire the right of immediately vesting in himself the whole estate? Those, who represent the wife, have the same right to have the estate brought back, as the children would have had in that case. Here is no evidence of an intention to carry the fine farther than the object of creating a security to Child, the mortgagee: on the contrary all the positive evidence is against that: the fine to be levied upon the request of Child, his executors, &c. The conclusion upon the deed is, either that the parties were ignorant of the limitations of the settlement, or that an imposition was practiced upon the wife by the representation, that a fine was necessary, instead of a deed of revocation; by which her attention would have been called to the terms of the settlement, and the consequence of going farther than to let in the mortgage.

Sir Arthur Piggott, Mr. Leach, and Mr. Daniell, for the Defendant in the original cause.-The evidence of the Plaintiff's pedigree is very loose; consisting merely of understanding and belief; unsupported by any reason; not referring to declarations of particular persons, competent to make such declarations; which certainly may be evidence upon a question of this description. As to the princi

(1) 2 Ch. Ca. 98, 161; 1 Eq. Ca. Ab. 222.

(2) 3 Bro. C. C. 201; ante, vol. i. 173. ·

This is

[* 364]

pal question, the authorities, referred to, reach this case. an attempt to extend that doctrine to an express limitation, after the determination * of the estate, created for the purpose of the mortgage, to various uses: not in the form of a reservation of the equity of redemption; not by words, which would give a right to call for a redemption; but by a substantive settlement of the estate by persons, having complete power to change the original uses; forming an essential distinction from all the cases, that have been mentioned. The proviso for the cessation of the term on payment of the money cannot receive a construction, inconsistent with all other parts of the deed. That provision regarded only one object, the mortgage. The mortgagee might have had a perfect security, without a fine, under the power to alter or revoke the uses, and to limit new uses. The settlement of this estate, which the Court is required to strike out of this deed, by turning the person, who has the legal estate, into a trustee for the original uses, commences from and after the expiration or sooner determination of the term; and is not connected with the redemption of the mortgage. Has any case yet occurred, in which, after providing all, that was necessary for the security of the mortgagee, there was an ultimate limitation of new uses to the husband and wife for their lives, and to the heirs of their bodies, and the right heirs of the survivor? What other intention than to resettle the estate can be ascribed to them? That intention was not to be collected in the cases, that have occurred, from a mere reservation of the equity of redemption to the husband and wife and their heirs. When this transaction took place, the contract of marriage, not three years before, could not have been forgotten; and can this special limitation to the survivor, after payment of the mortgage, and the determination of the mortgagee's interest, making the benefit depend upon accident, be accounted for by the simple purpose to create a mortgage, and not to affect the subsisting uses farther? The act shows the intention as * effectually as any recital. The [* 365] claim even of a child under the old uses could not be sustained against this complete revocation, the clear effect of their deliberate purpose. In the case of Clinton v. Hooper (1) the question was, not upon the wife's title, but upon the right to exoneration, and the admission of evidence to rebut the inference; and in all the cases, previous and subsequent, the question was only as to the purpose and intent, to which the wife's estate was pledged.

The letters of the Defendant, which have been read by the Plaintiffs, acknowledging the title of the heir at law of Mrs. Jackson, are considered as inconsistent with the claim, now set up by the Defendant; and to that evidence is added his acceptance of a mortgage of that very reversion from the heir; which is considered as decisive. All this admits explanation; and may be attributed to mistake, inadvertence, and surprise. The letters show complete forgetfulness of

(1) Ante, vol. i. 173; 3 Bro. C. C. 201.