pation of Baron, fronmonger, in the parish of St. Martin's in the Fields, London, which I hold under the Dean and Chapter of Westminster, to her, Mary Wood, to hold, during her own natural life only, all my estate, right, title, and interest therein, subject nevertheless to the payment of all fines and rents as they become due, yearly and for every year; and likewise to the due performance of all and singular the covenants, clauses, and agreements, which, on the lessee's part and behalf, are to be paid, done, and performed: and I further will and direct, that, as soon and immediately on the decease of her, Mary Wood, all the leasehold estates shall be vested in and unto John Girdler and William Tothill, their executors and administrators, in trust that they manage and do the best for the interest and improvement thereof, as their judgment shall direct; that they receive all rents due, or to become due thereon, out of which, nevertheless, they shall, during the time of their trust, have care to pay all fines, rents, dues, and other demands, and be subject to all the covenants, clauses, and agreements, which, on the lessee's part, are to be paid, done, and performed. And it is my will, that the trust do commence immediately on the death of Mary Wood, and be continued until my great nephew, William Capel, the grandson of my late brother, shall attain and complete his full age of twenty-one years, when the trust shall cease, and then be conveyed or assigned over to him, William Capel, to whom, and his heirs lawfully begotten, I do hereby will and bequeath the same, to have and to hold all the remaining term, right, title, and interest, which I now have in all the leases in Northumberland-street and the Strand, with all accumulations."

The testator died a few months after the date of his will.

The bill was filed in 1822, by William Capel against Mary Wood, the tenant for

life.

After setting forth the will of the testator, and the plaintiff's interest under it, the bill alleged, that the messuage and premises in the Strand, had been held by the testator as assignee of the same, and of a certain lease thereof, bearing date the 12th of December, 1792, granted by the Dean and Chapter of Westminster, for the term of forty years from Michaelmas then last,

under the yearly rent of 12s., and subject to certain covenants and agreements therein contained :-that although it is not usual for the Dean and Chapter of Westminster, to covenant in the leases granted by them for a renewal thereof; yet it is customary, upon applications of the parties beneficially entitled to such leases, for the Dean and Chapter to renew such leases every seven years at the least, upon payment of fines calculated according to the number of years expired of the respective leases ;-and that the defendant had hitherto neglected to renew, or apply for a renewal of the lease, though the plaintiff, having been advised that, according to the terms of the testator's will, Mary Wood ought to have obtained or applied for a renewal of the leases at the usual and accustomed periods, had frequently requested her to do so.

The prayer was, that the defendant might be decreed to apply for, and procure a renewal of the lease from the Dean and Chapter of Westminster, so as to make the term unexpired upon the same as beneficial to the plaintiff, and for the same number of years, as if she had renewed the lease at the accustomed period next after the decease of the testator, and duly from time to time subsequently; and that she might be decreed to pay the necessary fine or fines to the Dean and Chapter for that purpose.

The defendant, by her answer, insisted, that she was entitled to the full profits of the leasehold during her life, unencumbered by the expense of procuring any renewal of

the term.

Pending the suit, Mary Wood died, and her executors were brought before the Court by bill of revivor.

The lease from the Dean and Chapter of Westminster did not contain any covenant, from the lessors, for renewal, nor impose any obligation upon the lessee to renew. But there was uncontradicted evidence to the following effect:

"That the custom of the Dean and Chapter of Westminster, with regard to the renewals of leases granted by them, is to take fines on such renewals, according to the number of years elapsed in the existing leases, and to grant renewed terms of years to the extent of the number of years elapsed, so that the further period, obtained by the renewal, added to the years in being in the

existing lease, may fill up the number of years for which the original lease was granted; that the renewals of leases granted of houses for forty years, are usually made as soon as the first fourteen years have elapsed, and at any time subsequent thereto, so as to grant a renewal for the full term of forty years; that the renewals of leases of farms and lands, which were granted for twentyone years only, are usually made every seven years, or at any time subsequent, so as to grant a renewal for the full term of twenty-one years;-that the renewals are generally made upon the terms expressed in the original lease, and at the request of parties interested in the lease, and on their showing their title to take to such renewal ; -that the fines payable on the renewals, are optional with the Dean and Chapter, who require but moderate and reasonable fines on such occasions ;-and that the renewals of leases for years, are never refused by the Dean and Chapter, if the terms required by them are complied with.

Mr. Horne and Mr. Whitmarsh, appeared for the plaintiff;

Mr. Shadwell and Mr. Merivale, for one defendant executor ;

Mr. Sugden, for the other defendant

executor.

In support of the bill, it was contended, that though there was no clause in the lease, binding either the lessors to grant, or the lessees to accept, a renewal of the term, yet the Court would not overlook the circumstance,-that, in point of fact, the lease could be, and that such leases usually were, renewed at stated intervals, and upon certain terms. This custom of renewal was always considered as adding to the value of those leases; and it never could be the intention of the testator, that this privilege should be thrown away. If the defendant was not obliged to renew, the privilege of renewal was lost; for it never could be imagined, that the remainder-man was to renew for the benefit of the tenant for life. The remainder-man and the tenant for life, were equally the objects of the testator's bounty; yet, if the first taker was under no obligation to renew, the probability always was, and the result now proved, that little or nothing would remain for the son ultimately entitled.

per

The point, however, was not here left to any general indication of intention. The words of the will contained an express intimation, that Mary Wood was to take the church lease, subject to the burthen of renewal. It is given to her for her life, subject nevertheless to the payment of all fines and rents." Now, the lease was not charged with the payment of any thing, except a few shillings of yearly rent. What, then, could the testator mean by this express mention of fines? He must have had in his contemplation, the fines payable upon the customary renewals.

This conclusion acquires additional strength from the circumstance, that, in the bequest of the leasehold in Northumberland-street, the term "fines" is not introduced. With respect to it, there is no custom of renewal, and accordingly the testator devises it subject only to the rents that were payable for it. But as to the other leasehold, with respect to which there was a custom of renewal upon the payment of a fine, he devises it to the same persons to whom he had given the other, subject, however, to fines and rents, and not to rents only. There being nothing to satisfy the word "fines," except the fines payable upon renewal, it must be held that the tenant for life was bound to renew the existing term, at the customary periods of renewal.

On the other hand, it was insisted, that the defendant could not be bound to renew, when there was no right of renewal, and the lessor might either refuse absolutely to renew, or renew only upon such terms as he pleased. Suppose, that the Court made a decree, such as the plaintiff asked for, and that the Dean and Chapter of Westminster refused to renew, or demanded an exorbitant fine, what course was then to be followed? If there was a positively expressed trust for renewal, the case would be different. But here there was no such trust expressed or declared. It would be extravagant to derive a trust out of the occurrence of the single word "fines," which was probably inserted without any very definite meaning, and to cover any incidental charges, which might be occasioned in respect of the leasehold, exclusive of the yearly rent. Where the testator wished to create a trust for the preservation and improvement of the pro

perty, he had expressed himself fully. This was manifested by the directions which he gives to the trustees, who, after the death of the tenant for life, are to manage and do the best for the property.

In reply, Mr. Horne observed, that the reason of the specific directions, with respect to the trustees, was, that their trust was to be executed during the infancy of the plaintiff.

The Master of the Rolls.-The testator gives to Mary Wood, for the term of her life, the leaseholds which he held of the Duke of Northumberland, subject to the payment of the rents, and the performance of the covenants reserved by or contained in the leases. He then gives as follows: "Item, I bequeath to Mary Wood, during her natural life, all the messuage, &c. which I hold under the Dean and Chapter of Westminster, to hold, &c. all my estate, &c. therein, subject nevertheless to the payment of all fines and rents, as they become due, yearly and for every year, and likewise to the due performance of the covenants, &c." After the death of Mary Wood, he gives the leaseholds to the plaintiff.

The lease from the Dean and Chapter of Westminster, contained no clause of renewal. But the plaintiff says, that there was a habit of renewal upon the payment of such fines as the Dean and Chapter required; and he insists, that the word "fines," occurring as it does in the will, imposes on the tenant for life an obligation to renew according to the habit of renewal, and to pay the fines necessary for procuring a renewal. The consequence would be, that the tenant for life might have been a loser, instead of being a gainer, by the bequest to her. To create so burdensome an obligation, more than inference or conjecture is required.

A question having arisen, with respect to the costs, Mr. Horne insisted, that, as there was here a doubt arising upon the will of the testator, the costs ought to be paid, either out of the general assets of the testator, or out of the particular fund, to which the doubt related. If they were to be borne by the specific fund, then they would fall upon the plaintiff and the defendants, in proportion to the amount of the interest, which they took respectively in the lease.

A disclaimer may be, and generally is, a species of answer; and will satisfy the word answer, in an order of the Court.

An order had been obtained, that a defendant might answer without oath.

Under this order, the defendant had tendered a disclaimer to the Six Clerk, in order that it might be filed. The Six Clerk refused to file it.

The objection made to filing it was, that it was not an answer.

An application was now made to the Court for an order, that the disclaimer might be filed.

The Vice Chancellor made the order. He remarked, that a disclaimer was not a distinct substantive form of pleading. It was most usually an answer, averring that the party had no interest in the subject of the suit. At other times, it was in the nature of a plea: but the practice was to accept it without objection, under the common order for time to answer, plead, or demur, not demurring alone.

A mortgagee had filed a bill of foreclosure.

The mortgagor having become bankrupt, his assignees made the usual applicacation (1) under the 7 Geo. 2. c. 20, in order that the sum due on the mortgage might be ascertained and paid off.

To this application it was objected, that it could not be made, except on the behalf of all who were interested in the equity of redemption; that, if the cause had been brought to a hearing, the decree would have reserved the power of redemption to the bankrupt, as well as to his assignees; and, therefore, that the motion could not be granted, when made on behalf of the assignees alone.

The Vice Chancellor was of opinion, that he could not grant the motion. The act of parliament enabled the Court to take this course of proceeding, only when the application was made by the defendant or defendants having a right to redeem the mortgaged premises. The bankrupt had a right to redeem them. The decree at the hearing would give him, as well as his assignees, the power of redemption; and, therefore, the application could not be made, unless he concurred in it, or consented to it.

(1) The 2d section of that act provides, "That where any bill or bills, suit or suits, shall be filed, commenced, or brought in any of his Majesty's courts of equity, in that part of Great Britain called England, by any person or persons having or claiming any estate, right, or interest in any lands, tenements, or hereditaments, under or by virtue of any mortgage or mortgages thereof, to compel the defendant or defendants in such suit or suits, (having or claiming a right to redeem the same,) to pay the

plaintiff or plaintiffs in such suit or suits, the prin

cipal money and interest due on such mortgage, together with any sum or sums of money, due on any incumbrance or specialty, charged or chargeable on the equity of redemption thereof, and in default of payment thereof, to foreclose such defendant or defendants of his, her, or their right or equity of redeeming such mortgaged lands, tenements, or hereditaments, such court or courts of equity, where such suit or suits shall be depending, upon application made to such court by the defendant or defendants in such suit, having a right to redeem such mortgaged lands, tenements, or hereditaments; and upon his or their admitting the right and title of the plaintiff or plaintiffs in such suit, may and shall, at any time or times before such suit or cause shall be brought to hearing, make such order or decree therein, as such court or courts might or could have made therein, in case such suit or cause had then been regularly brought to hearing before such court

Notice-Registry-Evidence of plaintiff's title, on a motion for dissolving an injunction. A purchaser of lands, in a register county, is not bound to search the register.

Search of the register, up to a particular date, will not operate as notice of incumbrances registered at an earlier date.

Search of a register, admitted or proved generally, fixes a party with notice of all the contents of the register.

Semble Where the instruments creating the plaintiff's title, and the facts giving him title, under those instruments, are neither admitted nor denied in the answer, it is sufficient for him, upon a motion to dissolve an injunction, to verify by affidavit the instruments; and it is not necessary for him to state by affidavit, all the circumstances constituting his personal title under those instru

ments.

By indentures of lease and release, bearing date on the 5th and 6th days of August, 1755, reciting that a marriage was intended between Nathaniel Hodgson and Emma Willoughby, certain estates were limited to N. Hodgson for life, remainder to Emma Willoughby for life, remainder to the use of the first and other sons of Nathaniel Hodgson, on the body of the said Emma lawfully to be begotten, successively in tail male, with other remainders over, and the ultimate reversion in fee, to the right heirs of Nathaniel Hodgson.

The property was situated in the North Riding of Yorkshire; and these indentures of lease and release were duly registered, shortly after their execution.

Nathaniel Hodgson died in 1794, (his wife having died in his lifetime); whereupon Nathaniel Bryan Hodgson, his only son, became entitled, under the settlement, as tenant in tail to the premises.

Nathaniel Hodgson continued, during the whole of his life, in possession of the estates, but did not suffer any recovery, and died

or courts; and all parties to such suit or suits shall be bound by such order or decree so made, to all intents and purposes, as if such order or decree had been made by such court, at or subsequent to the hearing of such cause or suit."

on the 5th of January, 1821, leaving an infant son, his heir at law, who claimed the premises as tenant in tail, and a widow who asserted, that she was entitled to dower out of them.

Nathaniel Hodgson had, on the 18th of October, 1815, demised the property to Ambrose Dean, for a thousand years, to secure the payment of 2,000l. and interest. On the 19th of June, 1817, N. B. Hodgson executed another mortgage to Dean, for 1,000l.

In April, 1728, the property had been mortgaged; and though the mortgage debt had been paid off long before the execution of the indentures of the 5th and 6th of August, there had been no reconveyance of the legal estate. But by indentures of lease and release, dated the 11th and 12th of May, 1759, the legal estate was conveyed to N. Hodgson, in fee, and, at his death, descended upon his son, Nathaniel Bryan Hodgson, who was thus enabled, in the mortgage to Dean, to convey a good legal estate. Availing himself of that legal estate, Dean, shortly after the death of Nathaniel Bryan Hodgson, commenced an action of ejectment to recover the possession of the mortgaged premises.

The bill was filed by the infant heir of Nathaniel Bryan Hodgson, claiming under the entail created by his grandfather; and also by his mother, the widow of Nathaniel Bryan Hodgson, against Ambrose Dean. After stating the above-mentioned circumstances, it charged that Dean, or his agents or solicitors, before he advanced the money upon the mortgages, or executed the securities, had notice of the lease and release of the 5th and 6th of August, 1755.

The prayer of the bill was, that the indentures of mortgage to Dean, might be declared fraudulent; that he might be decreed to deliver up to the plaintiffs, the title deeds, and the evidences of the estate; and that he might be restrained from proceeding in his ejectment.

The defendant, by his answer, neither admitted nor denied the indentures of the 5th and 6th of August, 1755, and the title of the infant under them, as tenant in tail. He denied notice of these deeds: but he admitted, that on the 4th of October, 1815, his solicitor directed a search to be made

at the Registry-office, for incumbrances affecting the property, from the 1st of January, 1794; and that on the 11th of the same month, the following answer was sent to his solicitor, by a clerk of the Registeroffice:

"A search has been made in the name of Nathaniel Bryan Hodgson, from the 1st January, 1794, down to the present period, for incumbrances affecting certain estates, situate, &c.; and nothing has been found, except indentures of lease and release, dated 4th and 5th May, 1801."

Dean further admitted, that, in June, 1817, being about to advance money on the second mortgage security, caused another search to be made from the 18th of October, 1815, downwards.

He admitted also, that, if the search at the Register-office had been continued for upwards of sixty years back, his solicitor might have seen, but he denied that he did see or learn, that the indentures of 5th and 6th August, 1755, were registered.

The common injunction had been obtained as of course; and now, upon the coming in of the answer, the defendant moved to dissolve the injunction.

Mr. Sugden and Mr. Rose appeared for the defendants;

Mr. Hart and Mr. Barber appeared for the plaintiff.

As the defendant had neither admitted nor denied the settlement of August, 1755, or, supposing the settlement to have been made, the title of the plaintiff under it; affidavits had been filed in opposition to the motion, asserting the existence of the settlement, and the fact of the infant's title. These affidavits, however, did not verify the fact of the marriage of his father and mother. This, it was argued, was a circumstance, which it was necessary to prove, before he could set up any title under the deeds of the 5th and 6th of August, 1755; and, therefore, even if the merits were with him, he was not at present in a condition to maintain his injunction.

Upon the merits, it was argued for the defendant, that he was a purchaser for valuable consideration, and without notice. of the deeds, under which the title of the plaintiff arose; and, consequently, that a