It can 1795. CRICKETT V. DOLBY, I think a wife would certainly come under the same exception as a child (12). I do not find it in the books. hardly ever happen, that a wife has not some other provision; and that may make a difference in the case of a child. If maintenance is given generally to the child, so that the A wife as well whole may be exhausted by the maintenance, that shews the testator meant it to carry interest: but if a partial maintenance is given, as if an annual sum less than the interest is that a legacy given for maintenance, the child shall have no more; and does not bear the executor paying that sum shall have all the rest. as a child within the excep tion to the rule, interest,till it is payable. (See (12) This dictum over-ruled, post, Stent v. Robinson, Vol. n. 12.) XII, 461. Lowndes v. Lowndes, XV, 301. Raven v. Waite, Legacy from 1 Swanst. 553. parent to child payable in fu turo: if maintenance is given generally, it shall carry interest: but if an annual sum less than the interest is given for maintenance, the executor paying that shall have the rest. LAKE v. THOMAS. THE bill stated the following case. 1795. Dec. 16th. The Plaintiff William Bill against the heir of Lake is the eldest son and heir at law of William Lake the devisee of deceased, who was the eldest son and heir at law of William mortgaged Lake deceased. William Lake the Plaintiff's grandfather being premises by seised and possessed or otherwise entitled to a certain estate, mortgagor for called Trugwall, borrowed 120. of Robert Nicholls; and for discovery and securing the re-payment thereof with interest executed some redemption, indenture or indentures of mortgage of the said premises for charging acsome long term, or otherwise conveyed the said premises in knowledgmortgage to the said Nicholls, who assigned his interest in the ments, that mortgaged premises to John Thomas, who by his will gave all the estate was his interest in the said premises and the money due thereon held in mortto his son, the Defendant Henry Thomas, who by virtue of gage, and that such will or otherwise became possessed of and entitled to the been kept: plea said mortgage security. John Thomas during his life got into of possession possession of the premises, and received the rents and profits for fifty years till his death. Henry Thomas, the Defendant, having become under entitled as aforesaid, entered upon the said premises, and has veyances from been ever since and still is in possession. William Lake, the the mortgagee accounts had con ordered to stand for an answer. 1795. LAKE v. THOMAS. [ *18 ] Plaintiff's grandfather, died some years since intestate, leaving William Lake, the Plaintiff's father, his eldest son and heir; who died in or about the year 1781, leaving the Plaintiff his eldest son and heir at law then an infant of tender years, and who has only lately attained his age of twenty-one years. The Plaintiff's father in the year 1789 applied for a redemption; but being a sea-faring man was prevented from prosecuting his said claim at that time; and the Plaintiff being an infant, and in *Holland at the death of his father, where he continued until the 11th of August, 1792, the said mortgagees were suffered to hold and continue in possession and enjoyment of the said mortgaged premises, and to receive the rents and profits. The Plaintiff upon the death of his father became entitled to the equity of redemption. The rents and profits received by the Defendant and his father have been much more than sufficient to keep down the interest. The Defendant refuses a redemption, alleging, that he can make it appear, by deeds and writings in his custody, that the premises are not liable to be redeemed, but which he refuses to produce. The bill charged, that the premises were not sold, but only mortgaged, to Nicholls, and assigned by way of mortgage to Thomas; which would appear, if the Defendant would produce the said conveyances and other deeds and writings relating to the said premises and mortgage now in his custody or power; that the said John Thomas always considered the said premises as in mortgage only to him; and some time ago before his death acknowledged, that the said premises were held by mortgage only, and declared, he should be well satisfied with payment of the said principal mortgage money so advanced upon the same as aforesaid and the interest due thereon, or to that effect; that the Defendant in the year 1769, wrote a letter in the name and by the desire or direction of the said John Thomas or with his privity or consent, and sent the same to the Plaintiff's father, whereby the said Thomas declared his readiness to accept the principal and interest due upon the said mortgage, viz. "Reverend Sir, "I did not receive your favour of the 26th of May until Sunday last, so could not answer you 'ere now; and in answer thereto I some time since shewed the debt upon "Tridgwell "Tridgwell mortgages to William Lake and to parson Walsars "also: the first said, he thought it was the full value of it, 66 66 " and that I was welcome to it; and the latter, that he would "wash his hands of it; their very express answers. This is some years past, and with the growing interest, &c. it is "advanced so high as about 400%., and Mrs. Jordan alive " and well, and am informed a better life than she was some "time past, and may live twenty years for age. If you or "William Lake have a farther mind to talk about it, when "you come into the country, shall be glad to see you and "him also. The quantity of acres are about ten; and my "father took it in a public survey at 10l. per annum during “Mrs. Jordan's life; which is supposed always the full value " of every estate so taken. I am for my father John Thomas "your most humble servant, " HENRY THOMAS." Which letter the Plaintiff is ready to produce. The bill farther charged, that the Defendant had lately since the death of John Thomas acknowledged, that the said premises were in mortgage, and that he held the same as mortgagee only, or to that effect; also, that the Defendant had kept some accounts of his receipts or payments on account of the said premises under an idea, that he might be called upon in respect thereof; and had always or at some time considered himself as mortgagee only of such premises. The bill prayed a discovery, and that the Plaintiff might be at liberty to redeem, and that the Defendant might be decreed to account for the rents and profits received by his father or himself or by their order or for their use; and that an account might be taken of the principal and interest due upon the mortgage; and that upon the Plaintiff's paying what should appear due the Defendant should be decreed to reconvey, and that possession should be delivered to the Plaintiff, together with all the title-deeds, &c. As to the redemption and discovery, and the account of the rents and profits received by John Thomas or by the Defendant or by their order or for their use from the estates in the bill mentioned, and as to so much of the bill, as sought to have possession of the said estates or of the title-deeds and writings 1795. LAKE v. THOMAS. [ *19 ] 1795. LAKE v. THOMAS. [ *20 ] writings relative to the same, the Defendant pleaded in bar, that in 1731 the said William Lake being seised or otherwise well entitled to the messuage or tenement after mentioned, subject to a rent-charge of 10l. per annum to Elizabeth Lake, borrowed 601. of John Hearle and William Pearce; for securing which he by indenture, dated the 27th of January, 1731, demised to them, their executors, administrators and assigns, all those messuages, lands, tenements and hereditaments, called Trugwall (describing them) to hold for 1000 years subject to redemption; and in 1741 the said William Lake being so seised or entitled, subject as aforesaid, borrowed of Thomas Roskruge 901.; for securing which he by indenture, dated *the 28th and 29th of August, 1741, conveyed the Trugwall estate to Roskruge, to hold to him and his heirs for ever subject to redemption; that these mortgages became absolute; and Roskruge in 1742 conveyed to Robert Nicholls, his heirs and assigns for ever, all the said premises, to hold to him, his heirs and assigns, subject to the mortgage; and by indenture of the 12th November, 1742, Hearle reciting, that he was entitled by surviving Pearce, assigned to Robert Nicholls, to hold to him, his executors, administrators and assigns, for the remainder of the term of 1000 years; that by indentures, dated the 6th and 7th of October, 1746, Nicholls conveyed and assigned the mortgage in fee, and the remainder of the term for years subject to the said mortgage, to John Thomas, who in 1746 got into possession of the said premises and so continued quietly to his death upon the 15th of May, 1770; and by his will, dated the 10th of May, 1769, he devised and bequeathed to his son Henry Thomas all the rest of his goods, effects and chattels, either in fee, lease, mortgages, reversions or expectancy, with all his stock in trade, cash, book debts, bills, bonds, notes, dues and demands, whatsoever, first paying all his just and lawful debts, to him and his heirs for ever; and appointed him sole executor; and after the death of John Thomas, the Defendant by virtue of his will and as his eldest son and heir at law entered upon the said premises, and received the rents, and peaceably enjoyed the same till the filing of the bill; and he insisted upon the length of possession and quiet enjoyment. 1 Mr. Alexander, for the plea. Great convenience will arise from supporting this plea, if possible. The possession, upon which the defence is founded, is fifty years. As to the mode of defence, in Aggas v. Pickerell, 3 Atk. 244, though Lord Hardwicke doubted at first, and ordered precedents to be searched, he ultimately determined, that a plea was proper. An objection will be made upon the charges, that the father of the Defendant always considered the premises as in mortgage only, and declared, he should be satisfied with principal and interest, and the Defendant himself lately acknowledged, that the premises were in mortgage, and he held as mortgagee only. I doubt, whether any thing by parol only is sufficient. It must be a solemn, distinct and deliberate, promise; as was held by the Master of the Rolls in a case before him in 1792. In that case the Master of the Rolls said (13), there was an exception to the rule, if the mortgagee treated it as a mortgage; as by stating accounts, &c. He states the case to be, where a deliberate solemn act in writing took place, and said, Perry v. Marston, 2 Bro. Ch. Ca. 397 (14), was the only case of parol evidence; and there the decree of the Master of the Rolls was reversed by Lord Thurlow. He said, he would not lay it down, that no parol evidence should be admitted; because the case before him did not call for it; but if evidence is to be admitted, it ought to be clear, and to shew a deliberate intention to permit redemption; and he dismissed the bill without costs. The charges amount to nothing more than that the title was a mortgage title; which the plea admits. It states only acknowledgments to that effect a great while ago, not that he declared it upon an application to be redeemed. There is no appearance of a deliberate intention or wish to be redeemed. The letter contradicts the claim; shewing rather a treaty for the sale of an irredeemable interest than a redemption. It never was proceeded in, and must be considered as abandoned. As to the infancy, it is not stated, that William Lake the father was an infant at the death of the grandfather; consequently the bar had attached long before the death of the (13) Whiting v. White, Coop. 1. (14) The depositions are stated from the Reg. Book, Coop. 165, 1795. LAKE v. THOMAS. [ *21 ] |