HASSETT v. DAY. minor, to the other moiety of this property, subject to some life BLENNERinterests in part of it. With respect to the title of James, he could only establish it to a moiety of this leasehold property under the will of Edward; and that will could not have effect, unless the indorsement in 1727 was a severance of the joint-tenancy; and in that case it is difficult to understand how that will could have the operation which the award has given it. In the attestation it is stated, that the testator declared, that the reversion in the moiety should go to John, under whom James, the minor, derived his title. And cases (1) have been referred to, to show that that was a good devise of the reversion. Those cases are prior to the Statute of Frauds (2), and not applicable to the present case. The words of the statute are: "All devises of land shall be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his directions, and shall be attested and subscribed by three witnesses, in the presence of the devisor." What have these persons attested? That the testator declared that the reversion should go to John. The testator did not sign such declaration, nor did any other person by his direction. I do not think therefore, that it is assuming too much to say, that the title of James was very *doubtful. When parties refer their legal rights to arbitration, the arbitrators must award according to law, else the award is not binding. Here indeed, Francis FitzGerald refused to abide by the award, and none of the parties. interested attempted to enforce it; so that the rights of the parties were as much at sea as ever. In 1785, another project is attempted to quiet the claims of this family, and a deed, called the partition deed, is entered into, by which the Rev. J. Blennerhassett gives up a moiety of what was awarded to him to Francis Fitz-Gerald; but Francis refuses to execute this deed, and the attempt proves abortive. This deed is relied upon, as a proof of the influence of Judge Day upon the Rev. J. Blennerhassett, in prevailing upon him to surrender so much of his right to Francis Fitz-Gerald, in order to secure to James, or rather to the Archdeacon, that which belonged to them. But the letter which had been produced by the defendants, from the Rev. J. Blennerhassett to Francis Fitz-Gerald, completely disproves that allegation; and indeed, this letter shows very forcibly how little reliance can be placed on the evidence of letters, (1) Dime v. Munday, Sid. 362, 8 Vin. Ab. 122; Nash v. Edmunds, Cro. Eliz. 100; Browne v. Sackville, Dyer, 72. [ *120 ] BLENNER- V. DAY. [ *121 ] [ *122 ] unless every letter constituting the correspondence be produced. It shows, how materially the tenor and result of a correspondence may be affected by the suppression, whether by design or accident, of a single letter forming part of it. I make this observation in consequence of the great stress that has been laid by the plaintiffs upon letters, which have been very carefully preserved, and, possibly, as carefully selected by them. Another argument against the defendant Judge *Day, upon this deed is, that he, being in treaty, or having agreed at this time for the purchase of the reversion, took an active part in this partition deed to further and advance his own views upon the lessees' interests. Surely, there is not much weight in this observation ; would not this family have been more disposed to redeem, and more capable of redeeming this estate, after their respective rights had been finally settled and adjusted; would they not with more facility have raised the money, and with more prudence have embarked it upon this lease, after the litigation amongst them had terminated, than upon a disputed title, and a disturbed possession? It seems to me therefore, that this partition deed was more calculated to defeat, than to promote any design of Mr. Justice Day to break this lease. Then, what was the situation of the Rev. J. Blennerhassett, in 1786, when the ejectment was brought? He had a claim to a moiety of the leasehold interest in this estate; but that claim had been disputed for upwards of forty years, and not nearer to a termination, than when the suits commenced, and he had no possession consistent with his title. The estate was encumbered by a heavy arrear of rent; a mortgage also upon it, with an arrear of interest from the date of the deed; and there was a scramble for the possession. The same description of embarrassment applies to the other parties interested in this lease. Thus circumstanced, they are expressly informed of Lord Milton's intention to bring an ejectment for non-payment of rent. What then was to be done to save the estate? They must pay off the arrear of rent, or otherwise the eviction was inevitable. Which of *them could have been advised or enabled to redeem the estate, situated in the manner I have described it; surely, it was an interest hardly worth preserving at the expense of the debt that was charged upon it. The ejectment then is brought under a demise by Lord Milton, and possession is delivered to the defendant Mr. Justice Day, as the purchaser of Lord Milton's interests. But the plaintiffs allege, that the defendant Judge Day promised to secure to the Rev. J. Blennerhassett his moiety of the lease, and a letter is produced from the Rev. J. Blennerhassett to Judge Day, with such an allegation in it. That letter however is immediately answered by Judge Day, positively denying any such promise, or that the Rev. J. Blennerhassett, after the expiration of the six months, from the habere executed, had any right or title whatever under the lease. It is perfectly clear that, at this time, not only Judge Day, but all the parties interested in the lease, conceived the tenant's right to be absolutely barred both at law and in equity, and under that impression it was, that Judge Day, as an act of bounty, agreed to give the Rev. J. Blennerhassett an equivalent in value to one-fourth of the interest, under this lease. The payments are made by Judge Day, and accepted by the Rev. J. Blennerhassett, and after an acquiescence of seventeen years, and having received from Judge Day upwards of 2,000l., this clergyman assigns his rights to his two sons the present plaintiffs, begins to collect materials for the suit, and this bill is put upon the file, alleging amongst other things, as a fraud, that he accepted from the bounty of Judge Day, more than he would have been contented to have taken under the partition deed of 1785. If ever plaintiffs came into this Court with unfavourable claims and unclean hands, they are the Blennerhassetts, waiting, until the father had received the last shilling from the generosity of Judge Day, and then endeavouring, by this suit, to wrest from him his property, by an attack upon his character, and by charges and aspersions unfounded and malevolent, asking for relief, and doing the most monstrous injustice. If the bill were merely confined to this charge of fraud, I should have no hesitation in dismissing it, as against the Blennerhassetts, with costs; and, as to Fitz-Maurice and wife, they were, I have no doubt, brought here by the Blennerhassetts, and under their controul. What is the nature of their complaint? Why, by Hurly's evidence, they endeavour to make the defendant Judge Day, their confidential adviser, and by clothing him with that character, to raise a trust for their benefit; but the letters, that have been produced, put that as completely out of the case, as the other allegation respecting the deed of 1783. Hitherto I have considered this case merely on the ground of fraud. And if it rested here, if the only ground upon which the plaintiffs could show a title to relief, was, by establishing a case of BLENNER HASSETT V. DAY. [ *123 ] BLENNER- v. DAY. [ *124 ] [125] fraud; I should have no hesitation in saying they had failed in the proof of that case, and their bill ought to be dismissed with costs; but there is another ground, upon which the plaintiffs call for the interposition of the Court. They insist that the proceedings under the ejectment in 1786 were perfectly irregular and *illegal ; and that their rights ought not to be barred, or themselves precluded from trying at law the validity of that eviction. The first objection is, that the judgment in ejectment having been obtained on a non-suit, the rent in arrear should have been ascertained by an affidavit, which has never been made. But the answer I give to that is, that from the evidence in the cause, it appears to me, to have been had upon a verdict, or at least to be very doubtful, and after the lapse of such a length of time, be the judgment obtained either on verdict or non-suit; this Court will presume that every thing was regularly done, and that the parties by not complaining sooner, were satisfied (1). The second objection is, that Mrs. Fitz-Maurice, one of the parties claiming an interest, was, at the time of the service of the ejectment, a feme covert, and that her rights are expressly saved by the several ejectment statutes (2). To that I answer, that I conceive the statutes only regard legal rights, and that it was not necessary for the lessor to serve any but the lessees, under the lease of 1775, with notice of the ejectment; otherwise it would be to render the statute inoperative, as it would be impossible for the landlord to discover who had equitable claims on the property; unless it be deemed necessary for him in every case to file a bill of discovery. The third objection is, that the mortgagee, not being served with the declaration in ejectment, his interest is not barred, and that the tenant has a right to redeem in his name. It is not necessary for me here to decide that point, for whatever might be the question taken abstractedly, I should think it hardly possible after a party has got possession, not as mortgagee, but under a forfeiture, and has continued so without claim or complaint for seventeen years; has been dealt with as such, by persons, who, acknowledging their rights to be gone, have accepted a bounty from him; that at the expiration of such a period, persons, so conducting themselves, could insist upon his being considered, and charged as a mortgagee in possession, and to account during the whole of that period for the rents and profits of the estate. Upon this point also (1) See Doe v. Lewis, 1 Burr. 614. (2) 11 Ann. c. 2; 4 Geo. I. c. 5; 8 Geo. I. c. 2. I should say, that this Court would not entertain such a suit by If this be a well founded and legal objection to the proceedings, BLENNER HASSETT v. DAY. [ *126] [ *127] |