1804 GIFFARD v. HORT. In Feb. 1745, that cause was again heard, and a decree for a sale was had; and the surplus directed to be paid to Sir T. Giffard, that is, to the person who clearly was not only not entitled to that surplus, but who ought to have been obliged to pay out of his own pocket a considerable part of the sum for which the estate was sold; however, such a decree was made. The cause was re-heard on the 26th of July, 1746; for what purpose or to what effect it was reheard I have not learned, except that the grounds on which the decree was to be framed had not been fully laid before the court at the first hearing. It is, I suppose, in consequence of the practice of not stating in the petition for a re-hearing, the gravamen on which the decree is impeached, Petition for re- that I cannot ascertain on what ground the cause was rehearing ought heard, or what was then discussed; a practice which I think to state the grounds on extremely mischievous, because I see it applied to cases which it is sought to re- where perhaps all that is meant to be re-heard is some trifling hear the cause. point, and on which perhaps the cause cannot be re-heard, the rule being that more than one re-hearing cannot be had. Now, at the time this decree was pronounced, as to two denominations, Sir Thomas Giffard had really nothing in the lands, for Killinagh and Ballycorvan had been conveyed in trust to be sold to pay debts; and consequently his interest in those lands was no more than a right to have them applied in discharging those prior mortgages and the incumbrances affecting the Castle Jordan and Hardwood estates; and with respect to a third denomination, the Hardwood estate, he was tenant for life, with remainder to his first and other sons in tail. The sale being decreed, the estate was put up, and purchased by persons who meant to conduct themselves as fair purchasers; looking into the title, they saw it was not a good one, and therefore they objected to completing their purchase. On that ground they were discharged from their purchase, and when they were so discharged because no good title could be made to them, the court of Exchequer in effect determined that its decree was erroneous; and the plaintiffs in that suit, in proceeding to a second sale after that determination of the court, were clearly guilty of a fraud on the court; it was a fraud and imposition on the court to insist on another sale when the court had said it could not protect the purchasers, instead of filing a new bill, for the purpose of bringing before the court the persons claiming under the settlement of 1739. That fraud appears to me to contaminate all the subsequent proceedings: and I think it highly important so to consider it, be cause nothing can be more important in the administration of justice, than that the parties in a cause should not be permitted by any contrivance, or by the holding back of any circumstance, to deceive the court, and make it act in one instance contrary to its solemn decision in another. This is a sort of proceeding which the court cannot suffer to be carried on without expressing its indignation in the strongest terms, and no proceeding of that description can have any effect to defeat the rights of parties which the court meant to preserve: such must have been the intention of the court of Exchequer in discharging these purchasers from their purchase. When therefore a person comes in as a purchaser under such circumstances, it would be monstrous to say that he can maintain himself. It is palpable that the archbishop of Tuam bid for this estate as a bargain: the estate was put up again to sale, and it sold for less than had been before bid for it, and why? because it was known that no person could make a good title under that decree. The archbishop appears by his letters and by all his conduct to have been apprized of the settlement of 1739; and I apprehend that previous to this he had become possessed of the two charges which he had on the Castle Jordan estate; being possessed of them, he 1804. GIFFARD V. HORT. 1'804. GIFFARD V. HORTI was familiar with the property; he must have been so from the correspondence which appears to have taken place: he must therefore have been aware what was the true situation of the property at the time he bid for the estate. Indeed, the course he has taken demonstrates it; for instead of proceeding under the decree in the Exchequer, as a person would have done who had been a bona fide purchaser without apprehension of any thing wrong, he took his conveyance from the representative of Dillon as mortgagee; and though he paid this money into the Exchequer, and made application to get part of it out, and that was not opposed by Sir Thomas Giffard, the money not being now forth-coming, I have a right to presume that he, Sir Thomas Giffard, got the rest, and then it is a manifest fraud. This conveyance was in 1749; and after several ineffectual attempts to get a conveyance from Sir Thomas Giffard and his son, the archbishop files a bill, in 1750, stating the settlement and praying to have the benefit of his purchase ; admitting that at that moment he considered his title so incomplete, that he was to institute a suit to have the benefit of the contract he had made. If that cause had come to an hearing, the court could not have decreed him the benefit of that purchase: the court must have said "the ori ginal decree was erroneous; the account must be taken "again; you must have an account taken of what was due " on the mortgage: if the trustees had done their duty "they would have said, such and such estates are settled for "the purpose of paying these debts, and then the sale must "have been of those estates, and not of Hardwood." That would have been the purport of the decree which the court of Exchequer would haye pronounced, and they would also have taken care that Sir Thomas should pay the arrear of interest, and that it should not be paid out of the capital of the estate. However, an answer was put in to this bill, objecting to the transactions, and the archbishop never proceeded further in that cause. He filed a bill at the same time in Chancery, as assignee of the charges under the settlement of 1696; nothing is more striking than this circumstance: he chooses to file his bill to complete his purchase in the Exchequer, and to file his bill for raising those two sums, in Chancery. It is very striking, if one considers what would have been the proper decree if these two causes had come on together in the same court: if both causes had been in the same court, it would have been, that the mortgaged estates should be sold for payment of the mortgage in the first place, and then that the surplus of the purchase money should be applied to pay these two charges, instead of directing it to be paid to Sir Thomas Giffard: one of these charges would have been paid out of the surplus, supposing the purchase to be completed. When one considers that, by the settlement of 1739, these charges were to have been paid out of the mortgaged estates, in which very estates the archbishop had acquired an interest as purchaser, and as purchaser at an under value; it is plain that his filing these bills in different courts must have been for a fraudulent purpose; for the purpose of harrassing the Giffard family, and of urging them to execute the conveyance. These were the circumstances of his title when the archbishop made his will in 1751. There is no specific devise of this land which he claimed under the deed of 1749: he had no title but as mortgagee; he admitted his title to the purchase was at least incomplete, and I conceive that he never could have completed it, that the court never could have held that it bound the rights of the persons claiming under the settlement. He makes then a general devise to Josiah G. Hort for life, with remainder to his first and other VOL. I. 3 F 1804. GIFFARD V. HORT. 1804. GIFFARD. υ. HORT. sons, then to Sir John Hort and his first and other sons, and Josiah George Hort, who was his residuary legatee, ob tained administration with the will annexed, the executors having renounced. The consequence was, that Josiah G. Hort was in possession of an ambiguous title; if the archbishop had been a purchaser, he had an estate for life, with remainder to his first and every other son, &c.: if the archbishop was mortgagee only, then his title was in the cha racter of residuary legatee. Clearly it was only a mortgage title at that time, for if the decree in the Exchequer could not be set up to bind the rights of persons claiming under the settlement of 1739, then it was unquestionably liable to redemption; and he himself had a bill depending in court, acknowledging that he could not sustain that purchase. Therefore when the will was made, it was made under circumstances which enabled him to dispose of no more than the money which was secured by the mortgage which he had by assignment from Dillon, and that assignment liable to all the impeachment which I have stated; because all the costs of those erroneous proceedings on Dillon's mortgage, after he had notice, would have been no charge against the persons claiming under the settlement. In the year 1751, the archbishop died: and in February 1755, F. G. Hort filed his bill for the purpose of raising the charges under the settlement of 1696, which I apprehend was grafted on the suit before instituted by the archbishop. To that bill an answer was put in by Sir Thomas Giffard and his son; and in that answer they state particu larly the situation in which the archbishop stood with respect to this property, and they objected to the plaintiff's receiving any thing in respect of these charges, because they said that he was in possession of the estates which were conveyed by the settlement of 1739, for the purpose of paying these charges, and had obtained that possession by a fraudu |