Reference
AN28/13
Title
Copy decree in Chancery of foreclosure in which Humphrey South was plaintiff and Sir Oliver Ayshcombe and Dame Elizabeth, his wife, Daniel Sellwood and Martha, his wife and Simon Folkes were defendants and in which Sir Oliver Ayshcombe and his executor John Ayshcombe were plaintiffs and Simon Folkes and Humphrey South were defendants
Date free text
22 June 1706
Production date
From: 1696 To: 1706
Scope and Content
- Humphrey South’s case was heard 17 June 1706 and that part against Daniel and Martha Sellwood and Dame Elizabeth Ayshcombe was dismissed with costs to be taxed by Samuel Rock but a decree was pronounced against Sir Oliver Ayschcombe who petitioned a rehearing which was granted on depositing £10;
- the cause was reheard and the substance of the bill appeared to be that Sir Oliver Ayshcombe was seized of the manor of Berkford and lands in Gloucestershire, Bedfordshire and Huntingdonshire which he had mortgaged for £1,500, then had mortgaged to Humphrey South for £2,000 to pay off the £1,500 mortgage and have additional monies on 8 July 1697 [AN28/11] with another £500 on 24 August 1697 making £2,500 in all;
- Sir Oliver Ayshcombe was further to Simon Folkes by a bond of 14 August 1699 for £738/6/3; Folkes being indebted to South in that amount for dealings between them and delivered a bond for that sum;
- account of 20 December 1699 showing £3,616/19/6 owing to South which Sir Oliver Ayshcombe promised to pay “but hath not paid”;
- the principal debt remained and was more than the value of the mortgaged premises and so the scope of South’s bill was that Sir Oliver Ayshcombe should either redeem the mortgages or be foreclosed;
- counsel for Sir Oliver Ayschombe alleged that on 8 August 1697 he was seize of the property but could not remember the mortage to Folkes of 16 August 1696 [sic 16 September 1696?] “but avers that he never released or borrowed of Folkes £1,500 or the principal money due on the said bond pretended to be entered into by him to Folkes or is or then was indebted to Folkes one farthing upon any account whatsoever and that Folkes is greatly indebted to him, that several persons by the said Folkes’ appointment kept him the said Ayshcombe continually at hard drinking that when any design was on foot Folkes might get him to execute any conveyance of his estate and believes if any mortgagors or accounts stated were sexecuted by him to or with Folkes the same were got by contrivance and believes the mortgage and bond to Folkes and the said assignment to South if any such there were, were so obtained for that he remembers nothing thereof but hath heard and believes Folkes introduced such matters to be done when he the said Ayshcombe was intoxicated or unsettled in his senses and that he had no notice or draught of such pretended deeds beforehand to advise upon or consider of but believes Folkes having his writings intrusted in his hands got the said mortgage and assignment ingrossed and the defendant Ayshcombe fraudulently drawn in to execute the same without the plaintiff South’s executing a counterpart or his examining the nature of the defendant’s title or estate which implies a secret trust or fraud in the plaintiff South and hopes it will appear that all the transactions were by fraud and collusion between the said South and Folkes without a farthing consideration paid to the defendant all the pretended payments made by South being either by his giving notes or credit in his books to Folkesand by thieving the securities and declaring of trust from one to the other and that South very well knew Folkes was not capable of lending such a sum as is pretended he being greatly indebted to other persons at that time and particularly his Plantation mortgaged to the said South for £2,000 and upwards and submits to the Court how the said premises shall be charged with South’s pretences”;
- counsel for Folkes alleged that Sir Oliver Ayshcombe was indebted to him for £1,500 made the first mortgage of 16 September 1696 [AN28/10] which was afterwards assigned to South [AN28/11] and believes Ayschombe borrowed £500 in 1697 from South secured by a bond; that Ayshcombe “being really indebted £738.6.3 and Interest to him the said Folkes gave the said Bond dated the 14 August 1699 of £1,500 penalty conditioned for payment of £738.6.3 and Interest on the 15th of November then next and he the said Folkes then owng more money to the said South and did with Sir Oliver’s consent and privity deliver the same to South for payment of so much believes that the 20th of December 1699 Sir Oliver not having paid South, for both their better satisfaction and to ascertain what was then due such accounts was stated as in the Bill” and the scope of the said Sir Oliver’s Bill being to be relieved against the said mortgage and assignment and other mortgages, bonds and securities Ayschcombe had executed “to one Jacob”;
- South’s counsel admitted that the proposal for the mortgage for £2,000 was made to South by Folkes “the plaintiff Sir Oliver being an absolute stranger to him” and that Fokes brought the assignment ready engrossed that morning it was executed “without any advice taken by Sir Oliver thereon”;
- South had been employed for several years by Folkes as his factor “to take up and dispose of such effects as came from a Plantation which he had in Barbados in right of his wife” and on execution of the assignment paid £1,500 to Folkes “by giving him credit for the same in the accounts then between them” and paid £500 to Sir Oliver Ayshcombe “by giving him a note under his, the said South’s hand, for the same payable to him the said Sir Oliver or Bearer and that Folkes soon after bringing the said note and demanding the said £500 he, the defendant South, paid him the same by giving him credit for the same and the said account that the £500 lent to the plaintiff Sir Oliver upon his Bond of the 24 August 1697 was paid to him by the said defendant South’s giving him a note under his hand for the same payable to him the said Sir Oliver or bearer and that he did really pay the said last £500 to the person who brought the said last note from the plaintiff Sir Oliver which, he believes, was the defendant Folkes”;
- Folkes owed South £2,000 and interest on 8 July 1697 on mortgage of the Barbados plantation but only the interest and not the principal was brought into the account then running between them; Folkes also owed South on the running account about £738.6.10 but no part of the £2,000 was discharged or intended to be discharged by Sir Oliver Ayshcombe whose bond of £738.6.9 to Folkes of 14 August 1699 had since been satisfied by Folkes “on account that he being dissatisfied with his security did by a Declaration of Trust dated 12 August 1699 acknowledge himself a Trustee for Folkes for £800 and interest part of the said £2,500 and interest but on the 11th of September 1700 being better satisfied with his security Folkes by a Note then acknowledged to have received of the defendant the said £800 and interest declaring all the monies on the said mortgage to be his the defendant South’s own proper money, denies he is a Trustee for Folkes or any other in any incumbrance that affects the plaintiff Sir Oliver or his estate as to the said £738.6.3 and interest and denies all fraud in obtaining the said Securities and upon payment of the said £2,500 and interest for such other sums as are made principal by the stated account and satisfying Folkes the said £738.6.3 and interest or being indemnified touching the land he is ready and willing to assign his security as the Court shall direct”;
- “upon long debate” and studying: South’s books of account; a letter signed by Ayshcombe to Morgan in July 1700; AN28/10; AN28/11; receipt for £500 signed by Ayshcombe; account between Ayshcombe and South dated 20 December 1699; South’s gross bill and proofs taken in the causes, Lord Keeper of the Great Seal [William Cowper] judged: South was distinguished from Folkes and Greenway “it not appearing that he was engaged with or was privy to the transactions which did appear to have been carried on between them the said Folkes and Greenway with the defendant Sir Oliver Ayshcombe” and ordered Samuel Rock, a Master in Chancery, to take account of what Folkes owed South on account of the Barbados plantation or otherwise on the running account between them at the time of AN28/11 and what was really paid by South to Folkes in money or discount and to compute interest on what was really paid by South to Folkes and to better make account South was to examined on what is to come to his hands and is to produce all books of account and writings relating to the matters in question;
- on payment by Ayshcombe of what Samuel Rock certified to have been paid or discounted by South with interest and costs of South it was ordered that South reassign the mortgaged premises to Ayshcombe free from all incumbrances;
- South was to deliver all deeds to Ayshcombe but if Ayshcombe defaulted he was to be foreclosed.
Level of description
item