'Equity against a purchaser shall not be:' a seventeenth-century case study in landholding and indebtedness

'Equity against a purchaser shall not be:' a seventeenth-century case study in landholding and indebtedness* The restoration of the Stuart monarchy in 1660 brought numbers of suits into chancery over the next decade for redemption or foreclosure of mortgages entered into during or before the Civil War. A general equity of redemption had become established by about 1630, without any express limitation as to time. The W a r itself had then made it futile for many mortgagors to offer to redeem, since their redeemed estates would have been immediately liable to Parliamentary sequestration, and in the 1660s chancery was allowing redemptions on mortgages forfeited thirty years earlier. In 1672 Lord Chief Justice Hale attacked this indefinite equity of redemption, saying it had become 'a distinct kind of inheritance quite different from an estate in land or a trust', and Lord Keeper Bridgman concurred.1 The argument was put thus by Lord Keeper Finch (the later Earl of Nottingham) on assuming office in 1673: The relief upon forfeited mortgages hath gone so far that it hath almost spoiled all real security, and the ill consequences of this hath been that men can hardly borrow money upon their estates without a gage of at least treble the value, for men expect tedious payment, dead2 interest, a chancery suit, slow proceedings, and very troublesome accounts. Therefore to recover the credit of landed security it will be necessary to returntoas much strictness as good conscience wdl bear ...3 The purpose of this paper is to follow the course of chancery litigation, arising out of debts on mortgage, between representatives of the Lowther and Wybergh families during the Restoration period, to ascertain the rather complex factual background of these suits and to set it in the context of the history of the two families and their local communities. A cursory glance at estate papers in County Record Offices reveals the many boxes of lawsuits which land owning generated and any account of the gentry families in early modem England, while rarely pausing to untangle the details, acknowledges the length, cost and frequency of litigation between landowners, and on occasion cites such litigation * The quotation is a maxim of chancery, and the title of section 6 of Lord Chancellor Nottingham's Prolegomena of Chancery and Equity, in Heneage Finch, Earl of Nottingham, Manual of Chancery Practice and Prolegomena of Chancery and Equity, ed. D. E. C. Yale, Cambridge, 1965 (hereafter Two Treatises). This paper is an expanded version of the second half of the one I read at the Conference. I thank the referees for suggestions, and Martin Holt for advice and assistance in carrying them out. 1 Two Treatises, pp. 285-86. * I.e. simple. Two Treatises, p. 165. P A R E R G O N ns 11.2, December 1993 70 C. Churches as the reason for a family's decline, or its use in the hands of the more powerful to coerce and control neighbours. It seems worthwhile in this instance to examine the details. The bulk of chancery suits survive only as bill and answer (the cause being then dismissed, compromised or abandoned) and we have no way of penetrating to the truth of the matter depending. But in this case it is possible to trace the origins and the real basis of a suit, to see what preliminary moves had already been carried out, to discern the purposes of the parties in selecting and colouring their facts and elaborating their fictions andtoobserve the effects of the progress of litigation, or its failure to progress, within the local community of potential deponents, because besides a large volume of chancery documents which include depositions, there is an estate correspondence which affords weekly reports on developments.4 The Wyberghs had held the manor of Clifton in Westmorland since the fourteenth century, and the Lowthers of nearby Lowther Hall had been there even longer. In 1599 thefirstof four successive Thomas Wyberghs who will concern us purchased the manor and rectory of St Bees, which included the embryonic port of Whitehaven, on the Cumberland coast, in a collaboration, unhappy from the start, with a Lowther younger son. H e seems to have been...