CAP. V. Advowson. Vide title Trust and Trustees, under the divifion, Refulting Trufis, and Trufts by Implication. Agreements, Articles, and Covenants. (A) Agreements and covenants which ought to be performed in fpecie. P. 2. (B) Parol agreements. oz fuch as are within the ftatute of frauds and perjuries. P. 12. (C) Woluntary agreements, in what cafes to be performed. P.13. (D) Concerning the manner of performing agreements. P.17. See Eq. caf. abr. (A) Agreements and covenants which ought to be pers 16. 2 Tr. Atk. fozmed in fpecie. Auguft the 2d, 1739. 127. Id. 385, 386. Henry Stapilton an infant, by Ann his mother Plaintiff. Defendants. Ćale 2. Be Y a deed dated on the 21st of August, 1661, Philip Stapilton tenant of the premiffes in question for 99 years, if he fo Philip Stapilton long live, remainder to trustees to preserve contingent remaintenant of the ders, remainder to his first and other fons in tail male, repremiffes in que- mainder to his right heirs. ftion for 99 years, if he fo Fong lived, remainder to his first and other fons in tail, remainder to his right heirs, having two fons, Henry and Philip, they by leafe and release of the 9th and 10th Sept. 1724, in order to fettle and per petuate the manors, &c. in the name and blood of the Stapiltons, and for making provifion for his fons, and for preventing difputes that might poffibly arife between them or any other perfon claiming an intereft in the eftates, and for barring all eftates tail, release and confirm to two truftees all thofe manors, &c. to hold to them and their heirs, (as to part) to the ule of Philip the father, his heirs and affigns for ever, and (as to another part) to the ufe of the father for life, to Henry the fon for life, remainder to trustees for preferving, &c. remainder to his firft and every other fon in tail male, remainder to Philip the fon for life, with like remainders to the daughters of Henry in tail, remainder to the daughters of Philip the fon in tail, remainder to the right heirs of Philip the father. And as to the other part, to the use of Philip the father for life, remainder to Philip the fon for life, &c. Philip having two fons, Henry and Philip, they by deeds of lease and release the 9th and 10th of Sept. 1724, reciting, that for fettling and perpetuating all manors, &c. in the name and blood of the Stapiltons, and for making provision for his two fons, &c. for preventing difputes and controverfies that might poffibly arife between the faid two fons, or any other perfon claiming an intereft in all or any of the eftates therein after mentioned, and for barring all eftates tail, and for answering all and every the purpose and purposes of the parties thereto, and for and in confideration of the fum of 55. release and confirm to Thomson and Fairfax all those manors, &c. To have and to hold to them, their heirs and affigns, to the use (as to part) of Philip the father, his heirs and affigns for ever, and as to another part, to the ufe of Philip the father for life, remainder to Henry the fon for life, remainder to trustees to preferve contingent remainders, remainder to his first and every other fon in tail male, remainder to Philip the fon for life, remainder to trustees to preserve contingent remainders, remainder to his first and other fons in tail male, remainder to the daughters of Henry in tail, remainder to the daughters of Philip the ion in tail, remainder to the right heirs of Philip the father. And as to the remaining part, to the ufe of Philip the father for life, with like limitations in the firft place to Philip the son and his iffue, and then to Henry and his iffue, remainder in fee to the father. releafe 28th and There were covenants to fuffer a recovery within 12 months, and likewife for farther affurances.-N. B. To this deed, the heir of the furviving trustee in the deed in 1661 was not a party. But by deeds of lease and release dated the 28th and 29th of By leafe and Sept. 1724. to which the heir of the furviving trustee of the 29th of Sept. deed of 1661 was a party, the father and two fons make Thompfon and Fairfax tenants to the præcipe, in order to fuffer a recovery for the purposes mentioned in the former deeds of 9th and 10th of Sept. Before any recovery fuffered Henry died, leaving iffue plaintiff. 1724, the father. and two fons the make Thompfon and Fairfax te nants to the præ the cipe, in order to fuffer a recovery for the purpofes mentioned in the former deed: Before any recovery suffered Henry died, leaving issue the plaintiff 12th and 13th of Afterwards, by leafe and release the 12th and 13th of Afterwards, by Apr. 1725, to which the heir of the furviving truftee of the deed leafe and release, of 1661 was a party, Philip the father and Philip the fon cove- April 1725, Phinant to suffer a recovery, in which Thompson and Fairfax were lip the father and to be tenants to the præcipe, to the ufe, as to part, of Philip Philip the fon the father, his heirs and affigns; and as to the other part, to the fer a recovery, ufe of Philip the father for life, remainder to Philip the fon in fee. in which Thomp fon and Fairfax, were to be tenants to the præcipe, to the ufe, as to part, of Philip the father and his heirs and as so the other part, to the use of Philip the father for life, remainder to Philip the fon in fee. covenant to fuf In Trinity term was fuffered, in In Trinity term 1725. a recovery was fuffered, in which were 1725, a recovery the fame tenant to the præcipe, the fame demandant, and the which were the fame vouchees (except Henry who was dead), as were covefame tenants to nanted to be by the first deed; it was likewife fuffered within the præcipe, the twelve months after the first deed. fame demandants and the fame vouchees (except Henry who was dead), as were covenanted by the firft deed, and within 12 months after this deed. tiff, as fon and to establish his The father being The father Philip Stapilton being dead, the plaintiff, as son dead, the plain- and heir of Henry, brought his bill to establish his title to the heir of Henry, premiffes in queftion, and for the whole eftate as tenant in tail brought this bill under the old fettlement, and to be let into poffeffion, and for title to the an account of rents received by Philip Stapilton the fon, due miffes in quefti fince the death of the plaintiff's grandfather, and to have the on, and for the fame applied for the plaintiff's benefit during his infancy, and tenant in tail un- for an injunction to restrain the defendants from receiving any pre whole eftate as der an old fet tlement. The defendant Philip the fon infifted Henry was a baftard, more rents. The defendant, Philip the fon by his anfwer confesses the feveral deeds before mentioned, but fays, Henry was a baftard, and that by virtue of the deed of 1725, and of the recovery, and that by the he was intitled to the whole estate in question. deed of 1725, and the recovery, Upon an iffue directed, Henry was found illegitimate, and he was intitled to the caufe was now heard upon the equity reserved, when the the whole eftate. counfel for the plaintiff, waiving the claim to the whole eftate, Henry upon an iffue found ille- infifted upon these two points. gitimate, and the caufe came on now on the equity referved. The plaintiff is ift, That the recovery fuffered in Trinity term 1725 fhould intitled to the enure to the use of the deeds of the 9th and 10th of Sept. 1724, remainder to his and not to the uses of the deed in 1725. lands limited in father, by the 2dly, Suppofing it did not, yet that the deed of 1724 was deeds of the 9th fuch an agreement, as this court will carry into execution. and 10th of Sept. 1724, according to the ufes therein, notwithstanding the illegitimacy of his father; a court of equity being defirous of laying hold of any juft grounds to carry agreements into execution, made to establish the peace of a family. As to the first point; It was faid that the uses when once declared cannot be altered, unless all the parties intitled to the. ufes join in the new declaration, and Henry did not join in the deed of 1725. Tenant in tail may part with his eftate, and it fhall be good against him, tho' not against his iffue. For tenant in tail is not aided by the ftatute of Westminster the 2d, but only his iffue, therefore by the deed of 1724, the ufes being executed by the ftatute of H. 8. Henry gained a bafe fee which is not avoidable by Philip during his life, and as his iffue are barred by the fubfequent recovery, they will not be able to avoid it, and confequently Henry's eftate which was before defeafible is made indefeafible by the recovery. If tenant in tail confeffes a judgment, or mortgages the ands, and afterwards fuffers a recovery to a collateral purpose, that recovery shall enure to make good all his precedent acts and incumbrances. 1 Ch. Caf. 119. (Lord Chancellor mentioned a cafe in lord King's time, where father tenant in tail, remainder to himself in fee, contracting debts on specialty, his fon after his death levying a fine let in his father's creditors.) And if a recovery fuffered for another purpose will fubftantiate any prior act of the tenant in tail, much more, in this case, this recovery will fubftantiate the firft deed, where there are all the parties who covenanted by that deed. As to the second point; This cannot be confidered as a voluntary agreement, for Henry's legitimacy was then doubtful, and if he had proved legitimate, Philip would have come into this court to have the agreement executed, and Henry would have been bound by it. This court has decreed the performance of agreements like this founded upon mistakes; as in the cafes of Frank v. Frank, 1 Ch. Caf. 84. and Cann v. Cann, I Will. 723. For the defendant it was argued, as to the first point, that Henry being dead before the recovery was fuffered, the intent of the parties, in the first deed, could not be pursued; for the plaintiff (fuppofing him legitimate) claims paramount his fa ther, and the deed 1661, therefore as the recovery could not fubftantiate the firft deed, fuppofing him legitimate, it shall not fubftantiate it, now he is found illegitimate. The plaintiff upon the death of his father had not any use vefted in him, for the intent of the parties was, that the uses should arife out of the recovery; the ends recited could not be come at without a recovery, and where the intent of the parties is, that the ufes fhould pafs by fine or recovery, nothing will pass by the deed, that is intended only to declare the uses; the fine and recovery all make but one conveyance. Cro. Jac. 643. 2 Ro. Rep. 68. 2 Lev. 306. 1 Vent. 279. 2 Lev.,54. Cromwell's cafe. 2 Co. Cro. Fac. 320. I As to the fecond point; Take it as an agreement, this court will not decree a performance of it, for fuppofing Henry had been found legitimate, this court would not have decreed a performance of it against the plaintiff; fo that, in regard to the defendant, it must be confidered as a voluntary agreement, into which he was drawn without any valuable confideration, and the covenant for further affurance will be void as the deed itself to which it is annexed is void; and fo it was determined in the cafe of Furzaker v. Robinson, Prec. in Chan. 475: into to fave the mily, and are Lord Chancellor. The plaintiff in this cafe is intitled to have Where agreea decree, there was a fufficient foundation for Philip the father, ments are entred and Henry and Philip his two fons, to execute the leafe and re- honour of a faleafe of the 9th and 10th of Sept. 1724. It was to fave the honour of the father and his family, and was a reasonable agreement, and therefore if it is poffible for a court of equity to deeree a performance of it, it ought to be done. B 3 It reasonable ones, a court of equity will, if poffiole, decree a performance.. An infant may have a decree up on any matter arifing on the ftate of his cafe, though not par ticularly prayed by his bill. It would be very hard for the defendant on his fide, to endeavour to set aside this agreement, and the effect of this deed. confider the state and fituation of the family at the time of making the agreement: Philip had these children grown up, had a very confiderable real estate, both his fons then owned as legitimate, their father and mother had lived together as hufband and wife for many years, and at the time of this agreement were fo; there was a forefight in the father and mother, that fuch a difpute between their two fons might hereafter arife, to their difhonour and Jikewife that of the family. The foundation of this agreement, the illegitimacy of the eldeft fon Henry, has now been determined by trial, and it is found that Henry was a bastard, yet both the fons are of the fame blood of the father equally, though not so in the notion of the law. If the elder fon fhould be found illegitimate (as he now is), the father knew he would be left without any provision if no fuch agreement was made; and on the other hand, if his legitimacy fhould be established, then Philip the younger fon would have nothing: To prevent thefe difputes, and ill confequences, the father brings both his fons into an agreement to make a divifion of his real estate. It is very plain the parties did not know who was the heir of the furviving trustee, in the fettlement of 1661, at the time of the leafe and release the 9th and 10th of Sept. 1724; because they covenant a writ of entry fhould be fued out within 12 months, which is a very unusual time to limit to fuffer a recovery, and done in order to give time to find out the heir of the furviving trustee, if they could find him out; but he was afterwards found and made a party to the deeds of the 28th and 29th of Sept. 1724. The bill is brought by the eldeft fon and heir of Henry, to have the benefit and poffeffion of the whole eftate, and to have an account of the rents and profits, and to be quieted in the poffeffion, and for general relief. Upon the first hearing an iffue was directed to try whether Henry the father was legiti mate, and found he was not, and now the plaintiff infifts upon having the benefit of this agreement, whereby he is only intitled to a part: this being the bill of an infant, he may have a decree upon any matter arifing upon the state of his cafe, though he has not particularly mentioned and infifted upon it, and prayed it by his bill; but it might be otherwise in the case of an adult perfon. Upon this cafe there arifes two general queftions. First, Whether the plaintiff has any eftate in law by virtue of any of the conveyances, or by the recovery? Secondly, If he has no eftate at law, or only a defeasible one, whether he is intitled to have the benefit of this agreement, and to have it carried into execution here? The firft queftion confifts of two branches. |