The CASE of Sir Robert Cleark, In an Appeal against Henry Serle, Esquire.
SIR John Berkenhead died seized in Fee of four six parts of Little Lincolns-Inn-Fields, and possessed of another sixth part, for the remainder of Ninety-nine Years (The other sixth part was bought of Sir William Hooker) and of a personal Estate in Books and other Goods. And by his Will in December 1679. gave all his Lands to Rupert and Randolph Berkenhead, to perform his Will; which if they did not in six Months, he then gave his Estate to his Executors, Sir Richard Mason and Serjeant Brampston, for the uses aforesaid.
Dr. Birkhead, a Creditor of Sir John Berkenheads, being acquainted with the Plaintiff, Sir Robert Cleark, told him, That he believed there might be a very advantageous bargain bought of the said Fields; and Sir Robert Cleark being next Chamber-Fellow in Lincolns-Inn to Mr. Serle, and well acquainted, told him of the said bargain; who earnestly desired, that he might be admitted a sharer with them in the said Purchase; to which Sir Robert (believing him to be an honest man) consented, and so did the Doctor upon Sir Robert's Request.
They proceeded in a joynt design of Purchasing. And the 7th. of January 1679. they made an Agreement in Writing with Rupert and Randolph Berkenhead, for Sir John's Real and Personal Estate, which was to this Effect: That they should satisfie Sir John's Debts and Legacies, according to his Will, and to pay 642 l. to Rupert, and 600 l. to Randolph Berkenhead.
The 13th. January 1679. Rupert and Randolph, in consideration of 1200 l. Execute a Conveyance of the Fields to Mr. Serle, and his Heirs; for which, Sir Robert Cleark became joyntly bound with Mr. Serle, to pay each of them 600l. a piece at the end of three Months, with Interest; and of the remaining 42 l. to Rupert, Sir Robert paid down Eighteen Guinues, and Mr. Serle the rest.
The 16th. January 1679. Mr. Serle Executes a Conveyance under his Hand and Seal, to Sir Robert Cleark, reciting the Deed before made to him of the said Fields; and declaring, That it was in Trust for Sir Robert Cleark and his Heirs, as to one third part thereof, he paying a third part of the purchase Money; and of all the Debts, charges and incumbrances thereon. And at the same time, Executes the like Conveyance to Dr. Birkhead, for another third part; upon the Sealing of which, the Doctor gave up a Bond of 500 l. (being a Debt of Sir John Berkenhead's) to be Cancelled, and entred into another of 1000 l. to Mr. Serle, to pay the remainder of his third share of the Purchase Money.
February, 21th. 1679. For a further Confirmation of the former Agreement made with Rupert and Randolph Berkenhead; The two Executors, Sir Richard Mason and Serjeant na Bmpston, make a Bill of Sale of all the personal Estate to Sir Robert Cleark and Mr. Serle; who thereupon became joyntly bound to Mr. Bully, for the payment of 200 l. ar to Sir Henry Bernard for 250 l. to pay the Debts of the Will.
T [...]dhe 6th. of March, 1679. Dr. Birkhead delivers up his Deed of Trust for the Equall benefit of Sir Robert and Mr. Serle; and thereupon they became joyntly bound to pay him 500 l. with Interest (which Sir Robert has Since paid.)
The 13th. of March 1679. for a further Coroboration of their Title to the Fields, The two Executors, and Rupert and Randolph Berkenhead, all joyn in a Conveyance of the Fields to Mr. Serle and his Heirs. (The Estate being Conveyed to him at first.) And at this time, Mr. Serle (it seems) designing some Advantage thereby, told Sir Robert, That he need not joyn in the Bonds to the Berkenheads as before; for that he was bound for Money enough already, till the Estate in Law was conveyed to him; and that he would perswade the Berkenheads to take his single Bond, which they did accordingly; and the former Bonds were delivered up.
Sir Robert Cleark about three Years after sells his Moyety of the said Fields to Dr. Barbon for 3000ll. of which 2000 l. was paid down, the other 1000 ll. was to be paid upon Sir Roberts Executing a legal Conveyance to the Doctor, his Heirs or Assignes.
Sir Robert, that he might perfect his Agreement with the Doctor, desires Mr. Serle to Convey to him the Moyety of the Fields: Which he refusing to do, he brought his Bill before the Right Honourable the Lord Keeper; who, upon hearing the Cause, thought fit to decree, That he should have a Moyety of the Personal Estate; but did not decree him his Share of the Fields; for the reason (as he humbly conceives) that he believed, that Sir Robert waved his Interest, and promised to deliver up his Deed; and the chief proof of this Evidence, is from what Samuel Ogle, the Servant of Mr. Serle, and Randolph Berkenhead Swears; which are to this Effect:
All which Sir Robert Cleark hath, in Two Answers, upon his Oath, denyed; and how improbable it is to be true, which he swears, will appear by these Circumstances:
I. There could be then no such Condition as Ogle swears: That is, That Sir Robert should pay his Money when the Executors should joyn: For they had not then Agreed with the Executors; and therefore could not tell, whether they would joyn, or no. They were then no ways obliged to do it; and it was not necessary, the Title being Good without.
II. It is not probable, there was such a Condition annexed; for Ogle swears it, that drew the Deed; and had it been true, might as well have put it into the Deed. And Mr. Serle is a Counsellor, that directed the Deed, and would not have suffered his Servant to omit such a Condition, because he knew it would not then be good in Law.
III. There was no Occasion for such a Condition; for Sir Robert Cleark had, Three Dayes before the Deed was Sealed, paid his Proportion in Money, and by being bound with Mr. Serle to the Two Berkenheads; which were not due in a Month after the Time the Conveyances were sealed by the Executors;
Besides, it is not probable to be true, what Ogle swears, That Sir Robert, on the 13th. of March, 1679. did not pay his Purchase-Money; and therefore, afterwards, waved his Interest, and promised to deliver up his Deed of Trust.
Nor what Randolph Swears; That, at the time of the Executors joyning in the Conveyances, he took Sir Robert aside, and asked him, Why he was not Bound with Mr. Serle? And he told him, It was because he was afraid he should not be able to raise his share of the Purchase-Money.
I. For the Money was only then paid by Bond; and Sir Robert might have been better able to have paid his share of the Bonds, when Due, as well as those other, wherein he was before bound, by having a share in the Field, which were of very great Value; then he could be to pay the other Bonds without a Share.
II. For on the Sixth of March, (being Seven Days before) he was bound to Dr. Birkhead, to pay Five hundred Pounds for his Third Share of the Lands; and in that short time, there doth not appear any Change in the Value of the Estate; and therefore no reason (on a sudden) to change his Mind; for it was before any Opposition to the Building from Lincolns-Inn: And about that time, they were offered, by Dr. Barbon, One thousand Pound profit for that Third Share: And before that, they valued the Fields at Twenty thousand Pounds, as appears by Proof.
III. There is not the least Proof, That Mr. Serle did give, or offer'd him any Consideration, for the waving his Interest, and promising to give up his Deed of Trust.
IV. Nor any Proof, That he was to be saved harmless, and Indemnified from those Bonds he had entred into, to Dr. Birkhead, Mr. Buily, and Sir Henry Bernard.
V. There is Proof, That after the Thirteenth of March, and Time of the pretended Waver, Sir Robert concern'd himself in getting a Patent from the King, to build the Fields; and his Name is in the Petition and Bill for the Patent.
VI. There is Proof, That Sir Robert Agreed after the Thirteenth of March, 1679. to buy an House in Chancery-Lane, to make a better Way into the said Fields; and concerned himself in the Modal for Building, and staking out the Fields.
VII. Besides, after the Thirteenth of March, Sir Robert, in an Answer to Mr. Cary's Bill, Exhibited for his Right of some Privileges in the Fields, swears, He had an Interest with Mr. Serle in the said Fields: Mr. Serle, in his Answer to the said Bill, does not deny it; and they joyntly maintain'd the Suit: Whereas, had Sir Robert then waved his Interest, he might and would certainly, in his Answer, have disclaimed All Interest in the Fields, and saved himself the Charge and Trouble of the Suit.
All which makes it probable, that what Ogle, and Rupert Berkenhead have sworn, is not true, but on the contrary: The Reason why Sir Robert did not joyn in the Bonds, was, by the Artifice of Mr. Serle, telling him, there was was no occasion; For that Berkenhead were content to take his single Bond.
But if it had been true, it is but a Discourse, and ought not to set aside a Deed under Hand and Seal, since the Act made against Frauds and Perjuries; which has provided, That no Deed nor Declaration of Trust, shall be Assigned, made Void, or Altered, but by Writing.
I. For this Decree makes a Breach upon an Act of Parliament, and will leave a Gap open hereafter for crafty and designing Men, who know it is easier to get Words and Discourse sworn, than to Alter what is written; and therefore, the Law was made to defend Men's Estates against such intreagues; and how dangerous may the Consequence be, is obvious; since it is a time, when Perjuries, to the Amazement of Man-kind, have been practiced.
II. If this Decree should not be repealed, it will be the occasion of perpetual Suits in Chancery: For Cleark's Case will be cited for a Precedent, by all those, whose Interest it is to make use of a Discourse, to avoid a Deed: And if it should be Confirmed by a Decree of the House of Lords, it will have the greater Authority: Now there will be an Act of Parliament against Frauds and Perjuries, for those that are on the contrary side; so that it will remain solely in the Breast of the Court of Equity, which side to take, which cannot be known, but by a chargable Suit.
III. If there should be such a Power left in a Court of Equity, to allow a Discourse, to alter or make void a Deed, then no Man can purchase with any Safety: And that Act which was made for the Benefit and Security of the Purchaser, will become his greatest prejudice; for before this Law, the Purchaser had a Remedy upon his Covenant against Incumbrances, if by any Discourse or Evidence of that sort, his Title was prejudiced. But now, (by this Law) Discourse is no Incumbrance; so that, the Purchaser may lose his Estate, (as will be the Case of Dr. Barbon, if he be not relieved) and he has no Remedy against the Person that Sells.