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![handle is hein.slavery/ssactsengr0640 and id is 1 raw text is: PENVILL V. LUSCOMB
plaintiffs the creditors of the intestate, would charge him before the Master according
to this inventory, and the defendant insisted, that when he put it in, lie thought all
the goods in the house were the goods of the said .Ryan Seys, whereas he had since found
out, that great part of them were the goods of the said Richard Seys ; to prove which,
lie examined a witness in 1727, then [72] about twenty-two years of age, who deposed,
That she was a servant in the house in 1714, at the time that Richard Seys died, and
that she lived in the said house some years after, and perfectly well remembered
the said goods ; and her evidence was disallowed by the Master, because she swore
to the remembrance of goods when she was not above nine years of age, and at about
thirteen years distance, without having taken any note or memorandum of them;
but on exceptions to the report, the Lord Chancellor thought her a very good witness,
because she was not examined to the value of the goods, but only as to their being in
the house ; and though she was but nine years old at the testator's death, she lived
three of four years after in the family, and saw the furniture every day ; her evidence
agreed too with what another person swore, but his Lordship offered them the liberty
to try it, which they declined.
You may move before the i!faster of the Rolls, to discharge the order made by the
Lord Chancellor, on a motion of course, or an order made ex parle, for only one side
being heard, it is a continuance of the same motion.
Case 46.-PENVILL and LUSCOMB.
At the Rolls. Eodem die.
See post, Cas. 75.
A fine will bar him who has an equitable title, if lie does not bring a bill within
five years. 1 Vern. 226; 1 Chan. Cas. 268.
Luscombe the father, made a mortgage in fee, and died after forfeiture, leaving
a son and a daughter by one venter, and a son by another; the eldest son dies, and the
single question was, Whether the equity of redemption belongs to the sister of the
whole blood, as heir to her brother, or to the brother of the half blood, as heir to his
father ? And it was urged that here was no Possessio Fratris; that if the elder brother
had left a widow, she would not have had dower out of this estate, tho' a widow is
allowed to redeem a mortgage for years, because a lease for years at law is no bar of
dower, and the possession of the mortgagee is so far from being the possession of the
mortgagor, that if the mortgagee continue twenty years in quiet Fossession, it will give
him a title even against the mortgagor.
Master of the Rolls. I do not remember that this question ever came in judgment
before the Court, and the reason is, because there are so few mortgages in fee ; most
mortgages are made for a term of years, reserving a rent, a pepper-corn at least, and
then the possession of the mortgagee is the possession of the mortgagor, for the
possession of the lessee is the possession of the lessor ; as be acknowledges by
paying him rent (for it is necessary that lie pay him some rent) ; but when a
mortgage in fee is forfeited, [73] the whole estate is standing out, and there can be
no constructive possession of the mortgagor or his heir : but it is said, that this mort-
gage was satisfied by perception of profits, in the life-time of the eldest son, and therefore
the mortgagee was only a trustee for him, but then to make the sister his heir, lie must
have been in possession of this trust, either by filing a bill against the mortgagee, or
by the mortgagee paying him the rents and profits, so the statute of fines bars him
who has a legal title, if he does not enter within five years, and him who has an
equitable title, if he does not bring his bill within five years, Which amounts to an
entry, and Lord Coke says, there might be Possessio Fratrs of a use, before the statute
for transferring uses into the possession, which is what we call a trust now, and as
the possession of lands is gained by entry, so the possession of a trust is by bill, and
therefore the elder brother not having exhibited a bill against the mortgagee, I think
the equity of redemption belongs to the second brother, but I shall make no decree
now. It has been adjudged in this Court, that if tenant in tail male special, remainder
in fee, dies without issue inheritable, that there can be no Possessio Fratris of the
M OSELY, 72.](ViewImageLocal?handle=hein.slavery/ssactsengr0640&div=1&collection=&method=preview&ext=.png&size=3)