brown case richard STONE Appellant earl OF Anglesey and others Respondents  that may I S agree to sell a wood upon his estate to W and to give he a  certain time for cut and carry it away the purchaser be interrupt by person  who pretend a title to the estate after the death of I S who they insist be  only tenant for life and therefore have no power to sell bring his bill for a  performance of this agreement the court upon the hear be of opinion that this  be only a colourable agreement set up in order to try the defendant title in  equity which be proper triable at law and therefore dismiss the bill with cost  but on a appeal the decree be reverse and a issue direct to try the title the  respondent the earl of Anglesey be as he declare seize in feesimple or fee  tail of a parcel of enclose ground call Camolin park former and before the  same be enclose know by the name of Knockangarrow in the county of Wexford on  which there be stand a great quantity of timber and other wood and be dispose  to sell such timber and wood the appellant treat with he for the purchase  thereof and in consequence of such treaty the earl by deed date the that of  August agree to sell the say wood to the appellant for the sum of pound and to  give he seven year time for the cut and carry it away the appellant afterward  and in order to dispose of the timber again treat with several person for the  sale thereof but the respondent the Lord Altham and Mr Bayley with a design to  prevent the appellant dispose of the wood give out that the earl be but tenant  for life of the same and therefore have no power to sell they also pretend  that the Lord Altham be seize of a remainder in tail of the say premise and  that Bayley have buy all the say wood from the Lord Altham and they both  threaten that they will hinder any vendee from cut or carry away the wood and  will get the injunction of a court of equity for that purpose whereupon the  appellant exhibit his bill on the that of January in the court of chancery in  Ireland against the respondent pray that the earl and the other defendant may  discover and set forth their respective title to the premise and if it shall  appear that the earl have a good title to and can sell and dispose of the say  wood then that the appellant and his vendees may be quiet therein against the  respondent Lord Altham Bayley and annesly but if the earl shall not make out a  good title to the wood then that the appellant may be release and discharge  from his purchase the earl by his answer to this bill admit the agreement with  the appellant brown er p and say he be Willing to perform the same and as to  his title he insist that he be seize in fee of the premise for that his  grandfather Arthur earl of Anglesey be seize in fee thereof do on the marriage  of his son James earl of Anglesey settle the same on his say son for his life  with remainder to the brown son of that marriage successive in tail male and  that the say James his father have three son James afterward earl of Anglesey  his first son John late earl of Anglesey his second son and the respondent  Arthur now earl of Anglesey his three son that the say James the first son die  without issue male whereby the land descend to John the second son who be so  seize suffer a common recovery and be by virtue thereof seize in fee devise  the land to the respondent Arthur earl of Anglesey his brother and therefore  insist that the appellant shall perform the agreement the respondent Lord  Altham by his answer allege that the say James earl of Anglesey the respondent  earl Arthur elder brother do by his will devise the say land to earl Arthur  for life with contingent remainder in tail to all his son with a remainder in  tail to the respondent Lord Altham and he insist that the appellant have no  better title to the land than earl Arthur have who be but tenant for life  subject to impeachment of waste the respondent Richard Bayley by his answer  insist as the Lord Althain have do that the appellant have no right to the  wood for that earl Arthur be but tenant for life subject to impeachment of  waste and that the Lord Altham be tenant in tail of the premise have by deed  of lease and release convey the same to he and have sell he the say wood the  other respondent Charles annesly by his answer say he believe that James late  earl of Anglesey be seize in fee of the premise and devise the same to the  respondent the earl for life with remainder to all his son successive in tail  male and for want of such issue to the respondent Lord Altham for life with  like remainder to his son successive in tail male and for want of such issue  to Charles annesly uncle of the say earl James for his life with like  remainder to all his son successive in tail male and that he be the first son  of the say Charles annesly who be dead the cause be at issue witness be  examine on behalf of the appellant and of the respondent the earl and Lord  Altham the appellant prove his agreement with the respondent the earl and he  prove the settlement set forth in his answer to have be make by his  grandfather that the say James earl of Anglesey his brother die without issue  male and that John earl of Anglesey thereby become seize and suffer a recovery  of the land whereon the wood grow and by his will devise the same to the  respondent earl Arthur and his heir but the respondent Lord Altham do not make  any proof of a title in himself to the premise as he have allege by his answer  on the saint of July the cause be hear before the Lord chancellor when his  lordship have hear the plead open and the proof read and what be offer by  counsel on all side be please to take time to give his judgement and on the  that of November follow his lordship be please to declare that the appellant  purchase appear not to be brown real but only colourable in order to try the  other defendant title in equity which can not be do be proper at law and  therefore decree that the appellant shall be at liberty to make use of and  give in evidence the deposition take in the cause which be deposition take on  behalf of the earl of Anglesey against the defendant the Lord Altham Bayley  and annesly to show that Knockangarrow be the same land with Camolin park but  as to the rest of the bill that it shall be dismiss against those defendant  with cost and as to that part of the bill which seek to stop the respondent  the earl from recover the purchase money his lordship decree that the bill  shall be dismiss with cost from this decree the appellant appeal t Lutwyche  because the ground assign by the Lord chancellor for dismiss the bill be that  the appellant title be proper triable at law whereas the appellant have no  grant in law of the wood and can therefore make no defence to any action which  may be bring for any of the wood he shall cut neither have he any of the  family deed or write to show the title of the earl of Anglesey under who he  claim brown er p that shall the appellant have cut down the wood without know  the right he have to it he will subject himself to a action which may be bring  after the earl death and when he can not have the aid of the earl to make out  his title if he have one and if his lordship title to the wood be not good the  appellant can have no remedy for recover the money he have pay in case his  lordship shall not leave asset and even if he do it may be difficult to find  they that the prayer of the bill be conceive to be just for if the earl have  sufficient power to sell the wood it be against conscience for the Lord Altham  and the other respondent to set up groundless pretention in prejudice of the  appellant right under the earl and if on the other hand the earl have no power  to sell the wood it be but reasonable that he shall relinquish any claim to  the purchase money and not force the appellant to pay the money and have he  engage in a law suit which may eventual ruin he it be therefore high necessary  for the appellant before he proceed to cut the wood to know what right he have  to cut it and this he can not do otherwise than by a suit in equity if the  Lord chancellor have be of opinion that this right to the wood ought rather to  have be try at law than in equity his lordship may have order the appellant to  have cut a tree and the party who allege they have the property in it to have  bring a action within a limit time and on failure to have grant the appellant  a perpetual injunction against they or he may have direct a issue to try  whether earl James the brother of the respondent earl Arthur have power to  devise the land on which the wood grow so that it may thereby appear whether  earl Arthur be tenant for life only or not as to the objection that the  appellant be no real purchaser but that his agreement be colourable only and  that therefore the court shall do nothing to aid he it be answer that there be  no proof in the cause brown on which to ground any such surmise the agreement  do not import that any money be pay and therefore it can not be incumbent upon  the appellant to prove the payment of any money but have prove the execution  of the deed he have do all that be necessary in the cause admit however that  this suit be real bring to try the earl of anglesey right to cut the wood it  be conceive that there be no just reason to dismiss the bill for since the  earl have a intention to cut the wood and it be dispute whether he have a  right so to do it be fit the right shall be determine before the wood be cut  for by this mean the wood may be preserve if the earl have no right to cut it  and expensive suit at law prevent where very unequal damage may be give beside  by the constant practice of court of equity to grant injunction to stay the  cut of wood they necessary bring the title into question that cost be give to  the respondent Lord Altham and Mr Bayley although they confess give the  disturbance to the appellant which he complain of in his bill and insist upon  title which neither of they prove and consequent have altogether fail in their  defence although the court have in some measure relieve the appellant against  they by give he liberty to make use of those deposition which prove  Knockangarrow and Camolin park to be the same land that if the appellant be  not entitle to relief against the other respondent he seem to be clear entitle  to relief against the earl of Anglesey for if the appellant have no right to  the wood the earl can have no right to the pound purchase money and yet the  bill be dismiss as against his lordship with cost and the appellant be leave  to recover that money as he can whereas if what be surmise by the court and  seem to be the main foundation of the decree be true videlicet that the  agreement be only colourable and set up mere to try the earl title his  lordship ought in that case rather to pay the appellant his cost than receive  cost from he it be therefore hope that this decree of dismission will be  reverse on the part of the respondent the earl it be say p York that have by  his answer admit the agreement with the appellant for the sale of the wood and  have prove his title thereto he ought to have a full performance of that  agreement which he be ready and Willing to perform on his part the other  respondent print no case against this appeal nor do they either put in a  answer to it or appear at the hear and therefore after hear counsel for the  appellant and the respondent the brown er p earl it be order and adjudge that  the decree complain of shall be reverse and that the say court of chancery  shall direct a issue to be try at the king bench bar by a jury of the county  of Dublin whether James late earl of Anglesey elder brother of the respondent  Arthur earl of Anglesey be seize in fee of the land now call Camolin park  former Knockangarrow and whether he devise the same in which cause Arthur Lord  Altham Richard Bayley and Charles annesly be to be plaintiff and be to take  upon they the brown proof that the say James earl of Anglesey be seize in fee  of the say land and do devise the same and the appellant and Arthur earl of  Anglesey be to be defendant and the say court of chancery be to give all  necessary direction about the say trial and the say Arthur earl of Anglesey  and the appellant and those who shall derive title under they shall be at  liberty to make use of the deposition take in the say cause on the behalf of  the say Arthur earl of Anglesey on the say trial and if the say Arthur Lord  Altham Richard Bayley and Charles annesly shall refuse to deliver a  declaration or to proceed to trial by such time as shall be appoint by the  court the issue shall be take against they pro acknowledged admitted fact and  it be further order that after such trial have or such issue take pro  acknowledged admitted fact the court of chancery shall proceed to make such  decree as shall be just jour vol p