1826.--Watkins v. Stone.

and her heirs, all his interest in the property, subject to the estate and interest therein of Philadelphia Watkins and the heirs of her body: that Watkins died, many years ago, in the lifetime of Philadelphia his wife; and that Edward Watkins, her eldest son by him, died in 1816, in her lifetime, without issue: that John Watkins, the plaintiffs' father, her second son by William Watkins, also died in her lifetime, leaving the plaintiffs his only children and co-heirs at law that Philadelphia Watkins died in January, 1823, leaving the plaintiffs the heirs of her body by Wm. Watkins, and, as such, entitled to the estates in question, subject only to what, if any thing, was due on the mortgage: that, by indentures of lease and release, dated the 23d and 24th of June, 1758, to which Wm. Watkins and Philadelphia his wife were named as parties, and which were duly executed by Wm. Watkins, after reciting that Ann Constable had paid 1,6007., being all that was due for principal and interest on the mortgage, the whole of the mortgaged premises were conveyed to her in fee, subject to a proviso for redemption, on payment of the 1,6007. and interest, by Watkins and Philadelphia his wife, or either of them, or the heirs of either of them; and it was thereby provided that upon payment thereof A. Constable should re-convey the premises to the uses of the indentures of April, 1755; and they thereby covenanted for payment of the 1,600/. and interest accordingly that Ann Constable had been long since dead: that, by [*562] indentures dated the 14th and 15th of November, 1780, *and ex

pressed to be made between Philadelphia Watkins and Edward Watkins, her eldest son, and heir at law of Wm. Watkins by Philadelphia Watkins, of the first part, Sir Edward Williams and Edward Allen, the executors and devisees of Ann Constable, of the second part, and James Jenkins, of the third part, that part of the estates called Gelly Vaur were conveyed to James Jenkins in fee: that James Jenkins afterwards died intestate, and without issue, leaving John Jenkins his only brother and heir at law; but the plaintiffs were unable to discover who was his personal representative, or whether letters of administration of his estate were ever granted: that, by indentures dated the 6th and 7th of December, 1787, Gelly Vaur was conveyed by John. Jenkins to Joseph Lewis, one of the defendants, in fee simple: that, by indentures, dated the 22d and 23d of November, 1819, some estate in Gelly Vaur was conveyed by way of mortgage to Wm. Jones, another of the defendants, by or by the direction of Joseph Lewis: that many years ago Sir Edward Williams and Edward Allen, as devisees and executors of Ann Constable, and Philadelphia Watkins and Edward Watkins, conveyed the remainder of the mortgaged estates to John Price, another of the defendants, in fee simple, who afterwards conveyed them to Edward Watkins, by way of mortgage, for securing 2,500l. and interest: that Edward Watkins by his will gave his personal estate (subject to some legacies,) and his securities for money, including the estates so mortgaged to him, to his niece, the defendant, Sarah Jenetta, the wife of the defendant, Martin William Lucas, and her heirs, executorsand administrators, and appointed Richard Constable, John Constable, and

1826.-Watkins v. Stone.

Richard Owen Stone, executors of his will: that, by settlement previous to the marriage of Mr. and Mrs. Lucas, the mortgaged pre- [*563] mises, and the money thereby secured, were conveyed to Richard Owen Stone and William Owen Stone, upon certain trusts for the benefit of M. W. Lucas and his wife, or one of them: that the several persons claiming by the instruments before mentioned, were, during the life of Philadelphia Watkins, in possession or receipt of the rents and profits of the premises comprised in the indentures of April, 1755, as mortgagees thereof, and which were much more than sufficient to keep down the interest of the mortgage money; and that the whole of the interest due on the mortgage to Robert Lucas had been fully paid by means of such rents and profits; that, therefore, the plaintiffs were entitled to have the estates re-conveyed to them on payment of what remained due on that mortgage, and to have an account of, and be paid the amount of the rents and profits accrued since the death of Philadelphia Watkins: that the defendants pretended that the estate tail, created by the indentures of the 24th and 25th of April, 1755, had been barred by a fine levied in Easter term, 18th Geo. 3d, or in Hilary term, 3d Geo. 4th, and that the equity of redemption had become vested in them; but the plaintiffs charged that such fine, if levied, was inoperative in barring the estate tail, Philadelphia Watkins not having been a party to it, and it having been levied by Edward Watkins alone, who died in his mother's lifetime, and never acquired any estate in the property in question: and, as to the fine alleged to have been levied in 3d Geo. 4th, that the estates were derived from William Watkins, the late husband of Philadelphia Watkins; and that, although Philadelphia Watkins was alleged to have levied such fine, yet that the plaintiffs, who then were the tenants in tail of the *estates expcctant [*564] upon her death, were not parties to the fine, or consenting thereto, and, therefore, that the estate tail was not barred: that the indentures of the 24th and 25th of April, 1755, or the substance and effect thereof, were well known to the persons through whom the defendants derived title to the equity of redemption of the premises, and were recited or referred to in the deeds. by which the equity of redemption was attempted to be conveyed; and that those deeds, and the indentures of April, 1755, were then in possession of the defendants: that the defendants had in their possession divers deeds, &c. relating to the estates, and whereby the truth of the matters aforesaid would

appear.

The bill prayed for a re-conveyance of the estates by the defendants to the plaintiffs, and for an account, and payment to the plaintiffs of the rents arisen from the estates since the death of Philadelphia Watkins, and of what was due in respect of the mortgage-debts, after deducting the amount of the rents and profits what had been received, and were properly applicable in reduction or payment thereof, the plaintiffs offering to pay what should remain due in respect of such mortgage; and for delivery up of possession of the premises, and of all deeds, &c. in their power relating thereto.

1826.-Watkins v. Stone.

The defendant William Owen Stone, put in a plea to the whole of the bill, except such parts as sought a discovery of the purchase of the estates by William Watkins; of the execution of the deeds of the 24th and 25th of April 1755, and whether those deeds were in the possession of the defendant; as to the consideration of 9801. having been paid: as to the mortgage to [*565] Ann *Constable, by the indentures of the 24th and 25th of June 1758; as to all the estates comprised in the deeds of April 1755 having been derived from William Watkins; as to the substance-and effect of those deeds having been known to the parties through whom the defendants derived their title, and having been recited in the deeds which conferred the defendant's title; as to the estate and interest which the defendant claimed in the premises; and as to the defendant having deeds, papers, &c. in his possession.

The plea was, that Philadelphia Watkins being seised in tail of the hereditaments and premises in the bill mentioned, and called The Pant, a fine sur conuzance de droit come ceo, &c. was, in or as of Trinity term 1822, levied, in due form of law, before the justices of the court of common pleas at Westminster, between John Price, plaintiff, and the said Philadelphia Watkins, defendant, of the said hereditaments and premises called The Pant, by the description of three messuages, three gardens, three orchards, one hundred acres of land, fifty acres of meadow, fifty acres of pasture, five acres of wood, and twenty acres of furze and heath, with the appurtenances, in Llanvetherine, and also one annual rent of 41. 5s. 2d. issuing out of the tenements aforesaid, upon which fine proclamations were duly made according to the form of the statute in that case made and provided; and the defendant averred that the hereditaments and premises, called The Pant, of which such fine was levied as aforesaid, were the only part of the hereditaments and premises claimed by the bill in which he claimed any estate, title or interest; and that Ann Constable was the sister

in-law of Philadelphia Watkins, being the daughter of the father of [*566] *Philadelphia Watkins by another mother, and that the purchase of the

hereditaments and premises, called The Pant, by Wm. Watkins, was agreed for and made by him with the approbation, and on the behalf of Ann Constable; and that she gave and advanced to Win. Watkins the consideration money for the purchase thereof, upon condition that the hereditaments and premises should be settled and conveyed to the uses declared thereof by the indentures of the 24th and 25th of April 1755; and that those hereditaments and premises were settled and conveyed to such uses, in performance of the said condition; and under the circumstances aforesaid the defendant insisted that the hereditaments and premises, called The Pant, were derived from Ann Constable, and not from William Watkins; and he pleaded the matters aforesaid in bar, &c.

The plea was accompanied by an answer to those parts of the bill that were excepted in the plea.

Mr. Turner, for the plea :-This plea and answer will, probably, be objected to on the ground that too extensive a discovery has been given by the answer.

1826.-Watkins v. Stone,

But, as the bill contains a charge that the estates were derived from William Watkins, it was necessary to meet that charge by averment in the plea, and to support the averment by an answer. The legal interest in the estates did, in fact, pass from William Watkins; and the answer, therefore, could only contain a qualified denial of the estates having been derived from him, stating the circumstances under which they were so derived. The defence, therefore, was properly framed, by excepting out of the plea all such parts of the bill as referred to the derivation of the *estates from William Wat- [*567] kins. The question to be determined upon this record is, whether these estates can be held to have been of the inheritance, or purchase of William Watkins, so that it was not competent to his widow to bar the entail by fine in consequence of the proviso contained in the statute 32d H. 8th, c. 36. The object of that proviso was only to prevent women from alienating lands settled upon them by their husbands, not to control their power over lands derived from their own relations. Eysten v. Studd.(a) There have, indeed, been some cases where lands, which were the absolute property of some member of the husband's family, having been settled in consideration of marriage and of money paid by the wife's relations, the settlement has been held to be within the proviso in the statute. But those cases are distinguishable from the present. The husband there became a purchaser by the marriage. In this case, the settlement is post-nuptial; and the estates never were the absolute property of the husband. He held them only as trustee. The proviso in the statute does not even reach the case of a settlement of lands by a stranger. Ward v. Walthew. (b) Without eutering into a minute examination of the cases, it is sufficient to establish that these estates were not of the inheritance or purchase of the husband. They were not derived to him by descent, and he did not purchase them with his own moneys. As soon as the estates were conveyed to him, the trust resulted to Mrs. Constable, who might, at any time, have filed a bill to have the settlement executed.

*Mr. Jacob, for the bill:-The plea is bad in form. The fine is [*568] pleaded, not to the whole bill, but to a part, the other part being answered, and the answer admitting the deeds, &e. and facts stated in it. But, if the plea be good, it is an answer to that part as well as to the rest. Every plea, except a negative plea, admits the truth of what is stated in the bill. It cannot, therefore, be necessary to accompany it with an answer containing admissions. The office of an answer in support of a plea, is to deny charges in the bill, which, if true, would defeat the plea: any other answer overrules the plea, being unnecessary, and inconsistent with the principle on which the plea rests.

The bill, amongst other thing, calls on the defendant to set forth what claim he makes to the estates. If the plea be good, i. e. if the plaintiffs have no title, he is not bound to state his title: accordingly he pleads to this part of the

(a) Plowd. 463; 1 Inst. 366, a.

(b) Cro. Jac. 173.

1826--Watkins v. Stone.

bill. But he also answers it, stating that he claims to be a mortgagee. Here again the plea is overruled.

The plea is that a fine was levied of part of the estate, The Pant: and it states that, as to the other parts, the defendant claims no interest. This ought to have been pleaded separately, as a disclaimer. By inserting this disclaimer in the plea it is rendered double. It tenders two distinct issues, as to the different parts of the estate: with respect to one part, he declines answering, because the plaintiffs are, he says, barred by the fine: with respect to the other part, he declines answering for an entirely distinct reason, viz. because he claims an interest.

[*569]

*This species of disclaimer, if it were good in form, would not afford a sufficient defence to that part of the bill which it applies to. An account of the rents and profits is sought. The defendant must, therefore, answer whether he has received the rents and profits of that part of the estate in which he disclaims all interest. If he has received them, he cannot disclaim the liabilty to account for them.

As to the merits, the fine was inoperative, if Philadelphia Watkins was, as we contend, tenant in tail, ex provisione viri, within the meaning of the statute, 11th Henry 7, c. 20. Now the land was purchased and settled by her husband: the 9807. 10s. paid on the purchase, was indeed advanced by the wife's sister; that did not, however, render her the owner of the estate; first, because part of the purchase money (1,500.7) remained on the mortgage; and the husband became personally liable (as between himself and the vendors) to pay that sum, or indemnify them against it. If the estate had fallen in value below 1,500l., he must have made good the difference. His undertaking this liability was part of the consideration on which the vendors conveyed : thus the consideration for the purchase, moved partly from him, and partly from the wife's sister. It is also stated by the bill, and must therefore be taken as true, that he afterwards paid off part of the mortgage money; and, by the deed of the 24th of June 1758, he covenanted to pay it off, and to convey to the uses of the settlement.

Secondly, the 9807. 10s. is recited to have been lent or advanced to him by the wife's sister. It is not said that the purchase was made by him, as agent or trustee for her: but he bought, for himself, with borrowed money. [*570] Hence, in the interval between the *purchase and the settlement, he

might have repaid the 9807. 10s. and have kept the estate. It was, therefore, his property during that time.

The cases establish that, when the consideration for the purchase of the settled lands moves partly from the wife's relations and partly from the husband or his relations, the case will be within the statue; and also that, when the settlement is made by the husband or his relations, the circumstances of it being partly in consideration of money derived from the wife's family, will not take it out of the statute. Thus, in Piggot v. Pulmer, (c) land was purchased (c) Moore, 250; 14 Vin. Ab. 551, pl. 5.