The Express.
London, England, 1852-11-10 00:00:00

BIONILE VIM-CVO/tit KIIMIIIALIT.
Plugs

The ohject of this suit is to recover P leasehold estate of
cov•ith cable value in the couaty of York.
The arguments, which INCTO commenced yesterday, occu-
pied th.r duct throughout the day, and were not concluded
at the rising.

Biro's VICII.CIIANCILLLOR 81CL1T.
rLAYPORD r. PIATFORD.

The plaintiff in this suit e eldest son and the first
ten.utt in tail under a family settlement. In order to rinse
a sum of money fur bis benefit his father and mother
joined with himself in certain indentures in 1831, whereby
the estates were conveyed and have become vested in mort
mere in fte. Henry Playford, the tither, died in .la-
' nuary, 1811, and in the month of November in that p.m.,
' his widow, the then tenant for life, assuming to exercise
the power of leaving contained in the settlement, demised
the family evtato to the defendants, thu Playfords, the
younger brothers of the plaintiff, for 21 rears from the Ilth
of October in that year, at a rent of 94. The le ate con-
tained clauses throwing the onus of the repairs on the land-
lords, and a provision entitling the mother, in addition to
the rent, to reside with the lessees. There had been great
litigation between the parties. This suit was instituted for
the purpose of setting aside this lease, on the ground that
it had been executed in a fraudulent exercise, as
it was alleged by plaintiff, of the power con-
tained in the settlement of the 7th of October, 1790.
It being questionable whether a portion of the land in the
parish of Overstrand, part of the family estate, was free-
hold or copyhold ; and whether, in consequence, it was
subject to the trusts of the family settlement of 1790, and
comprised in the lease ; the plaintiff asked for a declara-
tion, that whether freehold or copyhold it was bound by
the trusts of the settlement.

The principal grounds on which the plaintiff founded his
ease were that the Issuing power was extinguished by a
subsequent din ntailing deed, and that if not, t►e lease was
one not warranted by the power, inasmuch as the h moors
were to du substantial repairs ;' that the farm wait let at a
grossly insufficient rent : that the proviso, ti•at the tenant
for life, Mrs. l'layforil, should reside in the house, was in
the nature of a premium, and therefore in con ntion of
the power; that the 'case also extended to lands not the
subject of the power; and, lastly, that it was dated as an
erasure. : . .

The defence involved various points, the moat impor-
tant of which seemed to be, that the power of leasing
*stained in the settlement was not barred at all events in
equity by the dieentsiling deed—that the land in Over-
strand was enpyhold, and we,s never comprised by intention
or otherwise in the marriage settlement, and that they
as deviates of their father were entitled to it; that the
right reserved fur the mother to reside on the farm was no
part of the consideration for the lease; that the rent re-
served was not an inadequate one ; and ill case tho lease
ahead be detective in any of the above points, they asked
to be at liberty to rectify it wider the recent act, the 12 and
13 Vie., e. 26, fur granting relief against defects in lames
made under powers of leasing in certain eases. The case
was argued for three days, and the wort eat till a late
hour last evening, when it was closed.
The Vice•Chansellor delivered the following judgment
at the sitting of the court this day. Ile said the main ques-
tion in this case was as to the plaintiff's right to have it de-
dared by the court that five parcels of land in the parish of
Overstrand, in the county of Norfolk, were included in the
marriage settlement made in the year 1790. The bill was
filed by the plaintiff, as owner of the inheritance of On
estates comprised in the settlement, to set aside a lee snide
in the year 1841 by the tenant for life then in posaession
under the settlement, and purporting to be under the power
of leasing contained in the iettlement, which lease extremely
comprised the five parcels of land in the parish of Over-
tstrand. If the lease of 1841 were invalid, either in equity
or at law, as an executor of the power, and if the five par-
i cols of land in question were included in the settle-
mead of 1790, and if, as the plaintiff asserted, the legal
estate, as to the whole or a part of those five parcels, were
vested in the defendants, his brothers, he came into equity
as against them, to recover that possession under
the settlement of 1700 which he could not
recover as against them in a court of law.
The settlement of 1790 purported to be a settlement
of lands in the two parishes of Monism* and Oventrand,
both in the county of Norfolk, and the lands were described
as having been successively occupied by Edward Loynes,
Margaret Playford, and Stephen Chapman. The more
material wmals of description in the settlement relied on
by the plaintiff were those which referred to the lease, and
under which the lands occupied by Stephen Chapman were
held by him. If the plaintiff bad succeeded in proving
that the five parcels of land in Oventrand were included
with lands oceupied by Stephen Chapman under a lean to
him dated in 1788, for a term of 21 years, at a rent of 10.51.,
he would have established his allegation that three five
parcels were included in the settlement of 1790. The bur-
den of proof in this part of the case rested on the plaintiff.
But he had, in his endeavour to prove his case, encoun-
tered a considerable difficulty from a question which bad
arisen as to whether the whole or some part of the five
parcels of land in Overstrand were not of copy-
bold tenure. The settlement of 1790 was by lease
and release and contained no covenant for the surrender
of copyholde, nor was its purports to comprehend any lands
of copyhold tenure. Nevertheless, il the description of the
land comprised in it did clearly include copyhold lands,
although not deneriboi se oopybolds, the plaintiff would in
a court of equity bum been entitled to insist OS having his
title to than segyholie mapleted by a eterresier osier the
decree of the MUM V the weight of inidenm IS 10 the
tenure of the loads is Oeewtrnad, it ippon to me es the
whole tvjeimably elm that they woo osityleeM. But
whether &wield or copyhold, is order to net that they
wont osoodeei in the osielmest of 17110. It vonii sot be
=Cal• dam Shot dm cow is OR is for oesopstion of
Charesits, but it wadi be neoeseary to pont that
they were in his occupation under the lease of 1788. To
ealeblade this point the plaintiff had put in evidence from
higneas of panhonent which appeared to be parts of the
less to Chamois is 1788. But unfortunately for the
iiimistill as to ems Otis few fragments so given in evidence
it went to inure that Chapman was in occupation of lands
which he held under another lease than that of 1788, and
upon the whole evidence it seemed impossible is hold that
the plaintiff bad succeeded in proving that the five parcels
of land in Oventrand Wen included in the settlement of
1700, or had now succeeded so far as to make out such a
priiMi fade case as could justify the court in allowing the
unfortunate litigation between the parties to be further
protracted by directing a trial of an issue, as was pressed
for by the plaintiff's counsel, or by directing any further
inquiry on this point. It was not immaterial to observe '
that by the litigation between these parties before the Vice-
Chancellor Wigram, as to the transaction in 1831 relative
to that mortgage, in which the father and mother of the
plaintiff concurred with him, and in order to complete
which the plaintiff, as tenant in tail under the settlement
of 1790, suffered a recovery, It had been decided that the
five parcels of land in Overstrand were not included. It
anemias that the plaintiff had failed in establishing his
case so far aa related to the parcels of land in Overstrand,
there was little difficulty in disposing of the reet of the
case. The relief sought by the bill, was there reduced to
the plaintiff's claim to have the law of 1841 set wide as to
thane lands which were admitted to be comprised in the
settlement of 1790, and to have that lease set aside on
objections which were admitted to be valid legal objections
to the lease, and in respect of which the plaintiff might set
aside at law and recover the possession unless there was some
sufficient reason to prevent him from having the assistance
of a court of law; that the lease purporting to be made in
encution of a power of leasing in the settlement included
other lands not subject to that power, and reserved one
entire rent for the whole ; that the rent reserved was not
the best rent or the fair annual value; that the lessor,
being herself tenant for life, reserved to herself a benefit as
' to residence In the premises, which was in the nature of a
foregill, not to enter into other minor objections to the
4 lease which hail been diseumed at the bas: all these were
. I oanteisedly objections *sinkable by a court of law. The
1 1 plaintiff, however, alleged in this part of the cam that he
I' , was obliged to come into equity because the legal estate
r' was outstanding in the mortgagee's ; but it appeared plainly
I enough that it was by the act of the plaintiff that the legal
• estate had become vested in the mortgagees; nay, that the
. question of the invalidity of the lease of 1841 had been
r mooted by the plaintiff himmelf in the litigation
before Vice-Chancellor Wigrem, and relief prayed (al h
I not in that suit granted) in respect of that invalidity. 01
0 the plaintiff, by force of the decree of Vire-Chasealior ,
Wigrem, compelled the three defendants, the lerneets to 1
• convey that legal estate, by his (the plaintiff's) dinettes, Y'
1 1842, to the mortgagees. It was diffisult to no bow the
i want of a legal estate, of which the plaintiff tbeedellikendely
I deprived himself, after he had raised** sosellos of the
r validity of the lease, could justify his 1101110111gatil NMI trim
0 the proper jurisdiction of • court of kw sendoff
I equity. But the defect of equity in as phistilra ere is
I still 111010 obvious from the frame of his bill. Hie ems
0 aaertgasses, to whom he conveyed the legal estate, an mats
iellemillude to Me hill, on an ellegation that they roam le
Jebel alimisillii If they hod joined, loft dr kipl