BLENNER- v. DAY. [111] 1811. Dec. 16. [112] Statute of Frauds; not being signed by the testator, or by any person by his direction. A purchase by an arbitrator of claims under reference, cannot be supported. Where the facts constituting fraud are in the knowledge of the party, and he lies by for twenty-five years, he cannot get relief. Where possession has been obtained under a forfeiture, and has been acquiesced in for seventeen years, a bill to charge the party as mortgagee in possession should not be entertained. Relief cannot be given against a forfeiture created by Act of Parliament. But a court of equity will see that the proceedings working the forfeiture, have been regular. A party acquiescing, and receiving money under a misapprehension of his rights, is not bound by it, as in the case of a contract for a disputed title, or the compromise of a litigated right. In cases of fraud, time in order to bar the remedy, will not begin to run till the party acquires a knowledge of the facts constituting the fraud (1). A court of equity will, if it can, relieve against a forfeiture. * THE Attorney-General, Serjeant Ball, Serjeant M'Mahon, Mr. Townsend, Mr. O'Connell, and Mr. Dwyer, for the plaintiffs. The Solicitor-General, Mr. Plunket, Mr. Burton, Mr. Rice, Mr. Franks, and Mr. Day, for the defendants. [The facts of this case are sufficiently stated in the following judgment:] THE LORD CHANCELLOR: The plaintiffs in this cause are Thomas and John Blennerhassett, who claim, in right of their father, the late Rev. John Blennerhassett, to be entitled to an interest in a lease for three lives, with covenant for *perpetual renewal, executed in the year 1714; afterwards renewed in the year 1775, and then mortgaged for an arrear of rent at that time due to the head landlord, Lord Milton, to the amount of near 800l. The other plaintiffs, Fitz-Maurice and wife, and Ann Fitz-Gerald claim, under a title somewhat different, an interest or share in the said leasehold premises. The bill is brought by these persons against the Hon. Justice Day, who in 1786, became the purchaser of the reversion from the said Lord. Milton, subject to the said lease; against the trustees in his marriage settlement, the trustee to whom the mortgage was assigned for Judge Day, and also against the representatives of the late Archdeacon Day, who claim under a deed of September, 1783, which is impeached by this bill; and the other defendant John (1) Trevelyan v. Charter (1835-44) 4 L. J. (N. S.) Ch. 209; affd. in H. L. 11 Cl. & F. 714. Fitz-Gerald, the heir-at-law of Francis Fitz-Gerald, who claims title to the tenant's right, under this lease, in a manner adverse to the plaintiffs; but who has a concurrent interest with them in the relief prayed against the other defendants. In 1803, this bill was filed seeking a redemption of the mortgage executed in 1775, and several questions have arisen in this cause for the consideration of the Court. First, whether the plaintiffs have successfully impeached for fraud, the title of Judge Day to the tenants' interest in this lease, or if not; secondly, whether the proceedings under the ejectment of 1786, have effectually, both at law and in equity, evicted and barred the tenants' right under this lease; or if, there be any legal objection to these proceedings, whether this Court, either by permitting a redemption of this mortgage, or by removing it as a temporary bar, will enable the plaintiffs to avail themselves of such legal objections, by trying at law the validity of the eviction. In 1714, the lease was granted by Connor to James Fitz-Gerald the elder, and his son Edward, and their heirs, for three lives renewable for ever, at a rent of 130l. per annum. In 1727, James the father by an indorsement on the lease, as it is alleged, and of which some proof has been given, limited his moiety to himself for life; remainder to his son Edward for life; remainder to James the eldest son of Edward by his first wife, and his heirs. This moiety, so far as the title to it is established by proof of pedigree, and by the above indorsement, devolved upon the Rev. J. Blennerhassett, to whose rights the plaintiffs have succeeded. They have also, in failure of that indorsement, another title deed, namely, the deed of 1738, which, if the indorsement did not sever the joint-tenancy, might have effect; and under which in the events that have happened, the plaintiffs, the Blennerhassetts, might be intitled to a moiety of the leasehold premises. The plaintiffs Fitz-Maurice and wife, claim to be intitled to a moiety of these premises, under the will of Edward, one of the original lessees, and which will could have no effect, unless the indorsement above-mentioned severed the joint-tenancy, and, if it did, the operation of that will appears to be extremely doubtful. These plaintiffs also in failure of their rights under the will of Edward, have title to a different share or proportion of the said leasehold interest, under the deed of 1738. Anne Fitz-Gerald, the other plaintiff, also claims, either under the will of Edward, or the said deed of 1738. B.R.-VOL. LIII. 6 BLENNER HASSETT v. DAY. [ *113] [ *114 ] BLENNER- DAY," [ *115] This property from the year 1738, when Edward, one of the original lessees, died, or from 1742, when James the other lessee died, became the source of ruinous litigation in this family. In 1774, there were four different suits in equity, depending between different claimants of this family to the lessees' interest in this property, and several ejectments had been brought respecting it. At this time all the lives in the original lease had expired, and a considerable arrear of rent and fines had accrued; and the Rev. J. Blennerhassett and Francis Fitz-Gerald, (under whom the defendant John Fitz-Gerald claims,) apprehending perhaps an eviction by the head landlord Lord Milton, came to an agreement to divide this property between them, the Rev. J. Blennerhassett agreeing to take the entire amount of the rent in arrear, and renewal fines, about 1,400., as a charge upon his moiety. There is no attempt to connect Judge Day with this transaction; but I think it clearly appears, that at this time the Rev. John Blennerhassett had no great confidence in his title; or why should he consent to encumber his moiety with so large a sum as was due for rent, and renewal fines? But then it is alleged, that he was a weak man, greatly embarrassed, and the complete dupe of Francis Fitz-Gerald. Characters of this description I have frequently found exceedingly *well dressed up, to induce the Court to believe, that whoever has any dealings with such a man, must himself be a knave; but I do not think that the Rev. Mr. Blennerhassett has very well supported that character; indeed his conduct towards Mr. Justice Day has been marked by any thing, but simplicity or fairness. In 1775, a new lease, in pursuance of the agreement of 1774, is granted by Lord Milton to the Rev. J. Blennerhassett and F. FitzGerald, at the old rent, and with a covenant for perpetual renewal. Now, whilst we are talking of fair dealing, this transaction will not very well bear that test; that these two persons should take to themselves the legal estate in this lease, without any declaration of trust, though perfectly conusant of the title of the other persons interested, and conscious of the many claims existing on this property, is not altogether free from suspicion. In the same year, 1775, a mortgage of this lease is executed to Lord Carlow, in trust for Lord Milton, to secure the sum of 7781., the arrear of rent due, the residue of the debt being paid. This transaction was ill calculated to silence the claims of the other branches of this family, or to rescue this property from litigation; and we find James (the minor), as he has been termed, immediately starting up, and filing his bill, in assertion of his rights; and the litigation continuing until the year 1783, when all the parties agreed to refer their several claims, and rights, to the arbitration of the defendant Judge Day, and of a Mr. Rice. About this time (that is) in September, 1783, pending this reference, James (called the minor, but then of age), representing himself to be entitled to nine twelfths of this property, entered into a contract with the defendant's brother, Archdeacon Day, for the sale of a moiety of his interest. This is alleged to have been in trust for Mr. J. Day; if this allegation had been proved, it would indeed have made a most serious case against the defendant. That a person, chosen as an arbitrator, should buy up the unascertained claims of any of the parties to the reference; that he should purchase an interest in those rights, upon which he was to adjudicate, could not be endured. It would indeed be to corrupt the fountain, and it would not only contaminate the award; but it would pervade and vitiate every other transaction of Judge Day, relative to this property. But, how is this charge established by any proof in the cause? Why, it rests on the single testimony of Thomas Hurly, who swears to a conversation had sixteen or seventeen years ago, with the late Archdeacon Day, and with the defendant Judge Day, and that he believes that this purchase was made in trust for Judge Day. This is positively denied on oath, both by Judge Day, and his late brother the Archdeacon, who died before issue was joined in this cause; and it is very extraordinary indeed, if there be any truth in the charge, of a trust by the Archdeacon for his brother, that during a period of seventeen years, whilst these brothers (the defendants) were perfectly off their guard, little suspecting that the Rev. J. Blennerhassett, whilst he was living upon the bounty of Judge Day, and expressing his friendship, and his gratitude towards him, was contemplating an attack upon his property, and a libel upon his character; it is, I say, very extraordinary, if the charge were founded, that no one circumstance should occur to corroborate the testimony of Thomas Hurly, during so long a period, and in my judgment that alone would be sufficient to set aside the evidence of Hurly, if the other facts in the cause did not clearly show that the Archdeacon made the purchase for himself, and not in trust for his brother. Indeed this Hurly, who has been liberated from prison, by the activity of one of the plaintiffs, BLENNER HASSETT v. DAY. [116] [ *117 ] BLENNER- ข. DAY. [ *118] [ *119 ] is ready to swear to any thing that may serve the cause. He is ready to sacrifice his own character as attorney to James, the minor, if the Court will believe all the calumny he has uttered against the late Mr. Robert Fitz-Gerald and the defendant Judge Day. He swears to his belief of facts, which he does not know, and to his knowledge of facts, which no other man can believe. This allegation therefore of a trust rests upon evidence, not intitled to any credit, and if this deed of September, 1783, cannot be affected on this ground, the next question is, whether this Court can set it aside as a purchase made by the late Archdeacon Day for himself. I agree with the plaintiff's counsel in many of the observations they have made upon this deed. I think it a most objectionable transaction, and, if within any reasonable time this deed had been impeached, I do not see upon what ground, it could have been supported; but it appears that no attempt was made to attach fraud upon the deed, in *the hands of Archdeacon Day, till the year 1808, twenty-five years after the transaction. And I do not conceive that this Court could entertain a suit, to set aside a deed for fraud, twenty-five years after the execution of it, and after the death of both the parties to it, upon facts, that have been within the knowledge of the plaintiffs, during the whole of that period. There is an observation of Sir W. GRANT in one of the reported cases that appears to me to have a great deal of weight, and strongly applies to the present case. He says, "It is with reluctance that the Court unravels matters at a great distance of time, when the circumstances may have undergone a great alteration, and it is possible, that if the transaction had been questioned recently, the party would have conceived he had very little interest in disputing what was done" (1). It is upon this ground therefore that I am of opinion, the plaintiffs, the Fitz-Maurices, are not entitled to be relieved against this deed of September, 1783; and although I cannot anticipate what would have been the defence of Archdeacon Day, if the deed had been impeached for fraud within a reasonable time, I do not mean to say, he could not have defended his title and his character. But, to proceed in the other parts of the cause. On the 31st of March, 1784, the award was made, and under it the Rev. J. Blennerhassett is declared entitled to one moiety, and James, the (1) Randall v. Errington, 8 R. R. 18 (10 Ves. 428). |