brown lord CARBERY Appellant edward weston and others Respondents that may  Mews dig I a for pound grant a annuity for his own life of pound a year to b  and charge it upon a estate represent to be of the clear yearly value of pound  and b agree that a shall be at liberty to redeem the annuity at six month  notice on payment of the purchase money and all arrear a suffer the annuity to  run great in arrear and the estate turn out to be subject to prior encumbrance  exceed its annual income on a bill file against a for a specific performance  of his covenant to pay this annuity the court decree accord and hold that b be  not oblige to resort to his remedy at law or to the in sufficient security of  the estate in the year one Timothy Callaghan a attorney apply to the  respondent brand a barrister at his chamber in the temple on behalf of the  appellant then George Evans esquire and inform he that the appellant have  occasion for money will grant a annuity of pound sterling for his life out of  the several manor of Bulwick and Laxton otherwise Laxton engine and the  advowson of the rectory of Laxton and other farm and land in the county of  Northampton whereof he be seize for life and the respondent brand have be  previous desire by the Rev John grant to inform he if any annuity of a year or  thereabouts shall be offer to sale tell Callaghan that he will choose to see  the appellant himself who in a short time after come with Callaghan to Mr  brand chamber on talk the affair over and Mr brand have no reason to suspect  the account give by Callaghan he inform Mr grant then in the west of England  of such application for and the term of the sale of such annuity who approve  thereof Mr brand do on his behalf contract with the appellant for the purchase  of a annuity of pound sterling Payable to Mr grant during the appellant life  and to issue out of the manor land and premise abovementioned at the price of  pound be seven year purchase and the common market price at that time for  annuity for the seller life but redeemable on payment of the say pound and all  arrear of the annuity on the that of march or at any time afterward on six  month notice give by the appellant pursuant to this agreement by indenture  tripartite date the that of December between the appellant of the first part  the say John grant of the second part and the say Joseph brand of the three  part the appellant in consideration of pound pay he by brand on grant behalf  do grant to the say John grant his executor administrator and assign a annuity  or yearly sum of pound to be issue out of and Chargeable upon the  beforementioned manor land and premise in Northamptonshire brown during the  appellant life Payable quarterly by equal portion clear of all deduction and  the appellant thereby covenant to pay the say annuity on the respective day  and at the place thereby limit and express and also that he be seize of the  say manor land and premise for his life without any charge thereon except a  rend charge of pound to his lady some small annual sum for chief rend and a  modus in lieu of tithe and procuration that the say premise be of the clear  yearly value of pound above all charge except as aforesaid and that he have  full power to grant the annuity of the appellant also by the appointment of  the say John grant do thereby demise the say premise to the pay Joseph brand  for the term of ninetynine year if the appellant shall so long live at a  pepper corn rend in trust for better secure the say annuity and in this deed  there be a proviso that if the appellant shall pay to the say John grant his  executor administrator or assign the sum of pound on the that of march at the  royal exchange London between the hour of twelve and one at noon or at any  other time afterward at the same hour and place give six month notice thereof  in write to brown er p the say John grant his executor administrator or assign  or on pay one quarter be annuity all arrear of the say annuity of pound be  first satisfy then the say John grant interest and possession in the say  annuity of pound shall absolute cease and determine at the time of this  transaction the appellant be in the thirty three year of his age in full  health and of a good constitution but notwithstanding the above covenant and  the appellant assurance it soon after appear that the premise exclusive of the  pound a year rend charge Payable to his lady be not worth more than the yearly  sum of pound and have be subject by he to the payment of other annuity and  rend charge to a very large amount prior to the annuity thus sell to Mr grant  and that all or many part of the say estate be in the possession of such prior  annuitant or creditor under execution and other legal process the appellant  however pay the annuity to Mr grant down to Michaelmas but from that time by  reason of the say prior encumbrance Mr grant can never procure any far payment  and die on the that of February leave the respondent Weston Bulkley Michael  Peter and Lucy wait his executor the appellant by the death of Lord carbery  his father in come to a very considerable estate in Ireland but refuse to pay  the arrear of this annuity and the estate whereout it be Payable not be near  sufficient for clear the arrear by reason of the prior annuity and encumbrance  the respondent together with the say Thomas wait in Hilary term file their  bill in the court of chancery in Ireland against the appellant and the  respondent brand pray a account of the arrear of the say annuity of pound that  the appellant may pay they what shall appear due on the balance thereof that  his covenant to pay brown this annuity shall be carry into specific execution  and he decree to pay the same from time to time as it shall grow due to this  bill the appellant put in several insufficient and evasive answer give the  respondent every possible delay and put they to very extraordinary expense in  sue process of contempt and sequestration against his land by some of his  answer he pretend that a unjust advantage have be take of his distress that  the contract for this annuity be unequal and that the court ought not to aid  this demand be contrary to the several statute make against usury by decree a  specific performance of his covenant and that if the respondent will not  accept the principal sum advance he by their testator with interest which he  allege he be ready to pay the court ought not to grant they any relief but  leave they to their remedy at law and to resort to the land grant for secure  the same although in his last answer he discover several annuity rend charge  and encumbrance on his aid estate in Northamptonshire amount to above pound a  year prior to this annuity and admit that they exceed the annual income and  value of the estate the respondent Joseph brand by his answer say that the  agreement for this annuity be make with the appellant in the manner above  state that he do not know or suspect at the time the appellant grant such  annuity that his estate in Northamptonshire be subject to any prior debt or  encumbrance except those mention in the deed the appellant and his attorney  both affirm the contrary and believe that Mr grant have not then any notice of  any prior encumbrance he also say that the purchase of this annuity be a fair  and honest transaction do at the then full market price in London at the  earnest and repeat solicitation of the appellant and his attorney Callaghan  and without any application of Mr grant who be then in the west of England and  that the appellant be not impose upon or deceive by this respondent or any  other person to his knowledge or belief the respondent have reply issue be  join and a witness examine by they to prove the fairness of the transaction  but not one witness be examine by the appellant either to prove the contrary  or for any other purpose the cause come on to hear on the that of July before  the Lord chancellor of Ireland when his lordship be please to decree that it  shall be refer to a master to take a account of what be due to the plaintiff  on the foot of the annuity of pound a year in the plead mention brown er p the  master accord by his report date the that of December certify that he find  there be due to the plaintiff on the foot of the say annuity to and for the  that day of October then last be the that of September old style the sum of  pound English value which at the rate of pound S d by the hundred make pound  Irish value this report be by a order date the that of December absolute  confirm brown and on the that of February the cause come on again upon the  master report and the merit when his lordship be please to decree that the  appellant shall pay to the respondent the executor of the say John grant the  say sum of pound together with interest for the same from the that day of  December then last pass be the time of confirm the say report and that the  appellant shall also pay to the respondent the grow annuity of pound a year in  the plead mention in English value from time to time as the same shall become  due that be to say one half year by the time the other shall become due and  Payable accord to the covenant in the deed mention and the respondent Joseph  brand be to have and recover his cost against the other respondent and they to  have the same over together with their own cost against the appellant and each  party be to be at liberty to resort to the court for such further direction as  shall from time to time be think necessary from both these decree the present  appeal be bring and on behalf of the appellant it be contend c Pratt t jewel  that the power of court of equity to carry contract into execution be mere  discretionary shall never be exercise but in case where the contract  themselves be free from every imputation of injustice unfairness or hardship  but the contract with the appellant be of a different nature the term of it be  usurious and corrupt insomuch that have the appellant redeem the annuity in  question at the time limit Mr grant will have receive for the loan or use of  pound for three year and a quarter the sum of pound which be above nine time  more than the legal interest but suppose this in strictness of law not to  amount to usury yet consider the circumstance and great distress of the  appellant and the inequality of the consideration give for the annuity a court  of equity ought not to have lend its aid towards carry into execution a  contract attend with such extraordinary hardship on the appellant and even if  the respondent can be consider as have a absolute right to the annuity the  court shall have leave they to their remedy at law but further as the annuity  be only grant in the nature of a security for the pound advance to the  appellant and be redeemable therefore if the respondent be entitle to any  relief the court shall have confine it within the common rule of equity and  direct a account to be take of what be due to they for principal and interest  after a deduction and allowance of the several sum pay by the appellant to  their testator and either have decree the appellant to stand foreclose of all  equity of redemption in default of payment of what shall be so find due or at  most ought only to have decree he to pay what shall after such deduction and  allowance be so find due for principal and interest that suppose the  respondent to be clear entitle to the annuity and the arrear thereof yet they  can only be so entitle subject to the appellant right of redemption but the  decree be absolute for payment of the annuity for the future as well as the  arrear brown without any power or right of redemption of which right the  appellant be thereby preclude contrary to the term of that very contract under  which the respondent claim the annuity bedside by this decree the court have  extend its relief beyond the penalty of the bind execute by the appellant at  the time of his enter into the contract which penalty be and in a case so  circumstance ought by a court of equity to be consider as the standard and  measure of damage for a breach of the contract fix and settle by the  respondent testator himself on the other side it be insist a forester e bishop  that from the nature of this whole transaction there do not appear to be the  least ground for impute any imposition or unfairness either in Mr grant or hip  counsel the respondent Mr brand who be a gentleman of very fair character and  credit in his profession and who alone transact the whole of this affair on  the part of Mr grant without the intervention of any broker or other assistant  the first closely joined to brown er p cion for sale of the annuity move from  and be make by Callaghan the appellant attorney and strong second by the  appellant himself unsought for and unsolicited either by Mr brand or Mr grant  who reside in Cornwall and be neither acquaint with the appellant or his  circumstance and the money pay by he be a full and adequate consideration  accord to the then current price of annuity in London for the life of the  seller that the appellant be himself guilty of very great imposition and  misrepresentation not only as to the yearly value of the estate but in  covenant that he be seize for life of the promise subject to this annuity  without any charge thereon except a rentcharge of pound to his lady and some  small annual outgo when by his last answer he have himself discover and admit  that at the time of grant this annuity and prior thereto there be several  other annuity rentcharge and encumbrance of his own make amount to above pound  a year on the estate although the same do not exceed the clear yearly value of  pound the appellant have therefore very little reason to insinuate any  unfairness on the part of Mr grant or Mr brand nor can his behaviour entitle  he to the reversal or variation of a decree obtain with so much difficulty by  reason of his repeat and affect delay that by the proviso in the deed the  appellant be at liberty on repayment of the purchase money to Mr grant  together with the arrear of the annuity at any time after the expiration of  four year to have determine the same and may yet do it at any future time on  those term this be a beneficial clause to he and manifest not only his own  caution but the purchaser candour in settle the agreement but instead of  comply with this proviso the appellant now contend that the deed of annuity  ought to be consider only as a security for the money advance by Mr grant with  interest at four per cent which be contrary to the letter of the deed as well  as the intention of the party that the many encumbrance on the appellant  Northamptonshire estate to upward of three time its value prior to this  annuity have render it total insufficient to pay or secure the annuity brown  or any part of it the respondent whole dependence therefore for such payment  or security be the continuance of the appellant life and the benefit result  from the decree which after great delay and expense they have obtain against  he after hear counsel on this appeal it be order and adjudge that the same  shall be dismiss and the decree therein complain of affirm and it be further  order that the appellant shall pay to the respondent the sum of pound for his  cost in respect of the say appeal at the same time be hear another appeal  between Lord carbery and one mr Wilson in a cause of the same kind which be  support and defend on the same ground and determine in the same manner jour  vol p appeal