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STOCKLEY

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STOCKLEY.

"Age of Twenty-one Years, all that my Messuage or "Tenement, now in the Possession of Edward Foster, as "Farmer thereof," subject to certain Annuities; "I give "and devise to my Son Thomas, all that my Messuage and "Tenement, wherein I now live," subject also to certain Annuities.

The Testator died in September, 1782. At the Time, when he made his Will, he occupied the Farnı called Gore's Tenement, the Two Meadows called Long-Shoot and Rush-Hey, and Two of the Moss Closes; and he resided in the House, Part of Gore's Tenement; the Residue of the Property comprised in the Lease of 1771, together with the Four remaining Moss Closes, and a House thereon, being held by Edward Foster.

In January, 1787, a Meeting took place; at which the Executors and Widow of the Testator, the Plaintiff Thomas Stockley, the Defendant Benjamin Stockley, and Benjamin Stockley the elder, their Grandfather, were present, in order to settle the Affairs of the Testator.

At that Meeting, Stockley, the Grandfather, stated to the Plaintiff and Defendant, that, as the Two Closes, called Long-Shoot and Rush-Hey, were comprised in the Lease of 1771, it would be more convenient, that the Defendant should have them; and should give, in Exchange, the Four Closes of Moss Land, demised to Foster; adding, that he knew the latter were not so valuable as the former; but that he would make Amends to the Plaintiff; to which Proposal the Plaintiff, who was then an Infant, and the Defendant, then adult, agreed; also that during Foster's Lease the Defendant should pay the Plaintiff a certain Rent.

The Defendant was soon after put in Possession of the Two Closes, called Long-Shoot and Rush-Hey; and bad

had ever since continued in Possession. He also paid the Rent to the Plaintiff until the Expiration of Foster's Lease, in February, 1789; when the Plaintiff was put into Possession of the Four Moss Closes, and had ever since continued in Possession of them; as also of the other Two Moss Closes, and of the Messuage and Premises called Gore's Tenement, comprised in the Lease of 1768; but no Conveyance had ever been executed by the Plaintiff or Defendant, either of the Four Moss Closes, or of LongShoot and Rush-Hey.

The Defendant having commenced an Action of Ejectment to recover the Four Closes of Moss Land, and the House thereon, the Plaintiff filed his Bill; insisting, that if any Doubt could arise on the Construction of the Will, he was entitled to an Execution of the Agreement, upon Part-performance and Acquiescence for nearly Nineteen Years, and Improvements by him; that Stockley, the Grandfather, had left the Defendant a Moiety of an Estate at Burscough; which he would not have done, in case he had suspected, that the Defendant would have endeavoured to set aside the Agreement; which Estate the Defendant now enjoyed; and praying a specific Performance of the Agreement, with the consequential Directions for mutual Conveyances.

The Answer insisted, that the Testator, by the Words of his Will, bequeathed to the Plaintiff only the Messuage or Tenement, where he then lived; and that the Lands, belonging to Stockleys, at that Time in the Occupation of the Testator, were not included; but only such' Lands, as were usually held with Gore's Tenement. The Defendant admitted the Meeting; but stated, that on his objecting to the Proposal, made by his Grandfather, the latter in a threatening Manner said, that he would force the Defendant to be quiet; or would leave him worse;

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from which the Defendant apprehended that his Grandfather would alter his Will, by which, as the Defendant had Reason to believe, the whole of the Estate in Burscough was given to him; and, therefore, because he stood very much in Awe of his Grandfather, he forbore to urge his Claim any more. The Defendant denied the Agreement, and the alledged Acts of Part-performance; but admitted, that the Plaintiff had got into Possession of the Four Closes of Moss Land, and was still in Possession of them; the Defendant being restrained, by the Threats of his Grandfather, who died in 1805, from sooner asserting his Right to the Moss Closes. He farther stated, that he was under the original Will, made by his Grandfather, to have taken the whole of his Estates; and that his Grandfather, by revoking his original Will, and giving the Defendant only a Moiety of the Estates, the whole of which were at the Meeting promised to him absolutely, had deceived and disappointed him; and he therefore submitted, that he was no longer bound to acquiesce in the proposed Arrangement. The Defendant also insisted upon the Statute of Frauds (a) in Bar to the Relief, sought by the Bill.

The Decree, made at the Rolls on the 27th of June, 1809, which, it was admitted, had not been drawn up according to the Intention of the Court, directed, that the Bill should be retained for Twelve Months, and that the Defendant should be at liberty to bring an Ejectment for the Recovery of the Property, and proceed to Trial; and, on the Trial, the Plaintiff was not to set up the Statute of Limitations; and the Injunction, which had been granted, restraining the Defendant from proceeding at Law, was continued; and all farther Directions were reserved, with liberty to apply in the Mean-time.

(a) Stat. 29 Ch. 2. c. 3.

From

From this Decree the Plaintiff appealed to the Lord Chancellor.

Sir Samuel Romilly, and Mr. Bell, for the Plaintiff.

This is a Bill to carry into Execution an Agreement, entered into a long Time ago; but that Agreement has been acquiesced in, from the Period, when it was entered into, until the filing of the Bill; between Eighteen and Nineteen Years. The Defendant conceives, that he is entitled to extricate himself from the Obligations, imposed upon him by the Agreement, because the Grandfather has not given him all that he expected. The Grandfather did devise to the Plaintiff and Defendant according to his Promise; and it is quite immaterial in what Proportions; or what was the Value of the Estate, given to each of them.

In 1806 the Defendant for the first Time sets up a Title, not only to the Property he gave, but also to that he received in Exchange; contending, that the Devise to the Plaintiff extended only to the House, in which the Testator resided; and not, as it must be construed, to the whole Farm, occupied by him. Whatever may be the Construction that ought to be put upon the Will, the Master of the Rolls, if his Opinion was, that the Defendant should proceed in Ejectment, should have dismissed the Bill; as it proceeds upon the Principle, that the Plaintiff here has no remedy at Law. Nothing, indeed, can be tried by this Ejectment; the legal Estate of the Four Closes being certainly in the Defendant; and, the Object of this Suit to get a Conveyance from the Defendant of that legal Estate. When the Circumstances are considered, that the Agreement was entered into under the immediate Auspices of the Grandfather, who has made a Disposition of his own Property on the Faith of it; the long Acquiescence;

the

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the Construction of the Parties, especially the Defendant, an Adult, at the Date of the Agreement; the Plaintiff is entitled to the Decree his Bill seeks; admitting that the Defendant would, at Law, be entitled to recover the Four Moss Closes. The Objection from the Statute of Frauds is answered by the Fact, that there has been a Part-performance. It is next contended, that the Agreement was made with the Plaintiff, when an Infant: but every Agreement with an Infant is not void; and the Plaintiff, when adult, acquiesced in, and confirmed this Agreement. The Defendant himself acquiesced in it, until the Death of his Grandfather; and then, as he has not got the whole of his Grandfather's Property, would disturb it: but supposing the Agreement not beneficial to him, yet, having waited until his Grandfather's Death, it would be a Fraud in the Defendant to impeach it; the Grandfather having made his Will on the Faith of it. The Agreement was a Family Arrangement; to establish the Peace of a Family; and in this respect the Case resembles Stapilton v. Stapilton (a). The only Difference is, that the Grandfather here held out, that he would make a Provision.

Mr. Martin and Mr. Heys, for the Defendant.

The Closes Long-Shoot and Rush-Hey were not demised by those Names: nor mentioned by those Names in the Will. This Agreement was intended as an Exchange; which is not immaterial; since, if the Plaintiff was ejected from the Closes he received in Exchange, he would be entitled to recover those he gave. One of the Grounds, on which the Plaintiff's Claim to a specific Performance rests, is, that the Defendant takes an Advantage under his Grandfather's Will. That is not in Proof: neither does any Thing appear on the Face of the Will to cor(a) 1 Atk. 2.

roborate