atkins case george maiden and mary his wife thomas cower and sarah his wife  and walter Warburton and Ann his wife plaintiff Littleton POINTZ MENILL  richard Harper executor of Samuel allen will Ann Burdet the Representative of  a survive trustee John minor and henry scott executor of Samuel allen  defendant where a purchaser have give a full value for a estate the mistake or  ignorance of some of the party to a conveyance of their claim under marriage  settlement shall not turn to the prejudice of a fair purchaser so if a release  party be apprise of his right a inadequate consideration will not avoid the  deed Stevens v Lord Bateman bro Charles Rep see can v can p W the case arise  upon the follow settlement make upon the marriage of John Allen and Esther  Stevenson his wife the first limitation be to John Allen for life remainder to  Esther his wife for life then to the use of Burdet for a term of year then to  the use of the first and every other son of the marriage in tail male and in  case there shall be no issue male of the say John Allen on the body of the say  Esther Stevenson beget at the time of the decease of the say John Allen or of  the say Esther Stevenson which shall first happen or in ventre sa mere and in  due form bear after the death of the say John Allen or in case the issue male  between they lawful beget shall all of they die without issue male and that  there shall be a failure of issue male of the body of the say John Allen on  the body of the say Esther Stevenson beget and that there shall be at the time  of such failure issue female one or more daughter or daughter between they the  say John Allen and Esther Stevenson beget live at the time of the say John  allen decease or of the say Esther which of they shall first happen or bear  alive in due form after the death of the say John Allen that then the trustee  or the survivor of they or the executor c of such survivor shall by and out of  the rend and profit so to they as aforesaid limit for the several term of and  year raise and levy receive and pay as to and for the portion of such daughter  and daughter the several sum hereafter mention if one daughter the sum of if  two or more pound equal to be divide among they to be pay at their several  respective age of twentyone if the same can be so soon raise and pay but if  not then the same to be pay so soon as it can be raise and in the mean time  for their support and maintenance interest at the rate of per cent per and by  half yearly payment there be a power of revocation except as to the land in  jointure and which be settle to the use of that marriage atkins which  revocation be afterward execute as to the use upon all the land except the  jointure John Allen die and leave a widow and four child a son name Samuel  Allen and three daughter upon a agreement between the mother and the son she  join with he in a recovery in order to make a title to Mr Menill a purchaser  of the estate of his late father John Allen after the contract Menill fly off  and refuse to perform the article but Samuel Allen obtain a decree against  Menill for a performance of the article of the that of February Menill do not  even then think fit to perform the contract till may when Esther Allen die  which make it a estate in possession instead of reversion it be afterward  agree between Samuel Allen and Menill that he shall have the estate and it be  pretend that the mother Esther allen bargain and sale in order to make a  tenant to the prcipe be never enrol and therefore void Samuel Allen suffer a  new recovery and then convey the estate to Menill pound be the consideration  of the mother execute the agreement but Menill insist that the bargain and  sale not be enrol she have not perform her part and therefore void he also  insist that the plaintiff have agree to give up their right to the sum of  pound in the article between the mother and the son in order to enable Samuel  Allen to bar the remainder over pound be pay to her for her own share as  consideration money and pound likewise pay to her for rend unjust receive by  the son I atkins er p John Stevenson the father in law of John Allen to who  John Allen have convey the estate which by the power of revocation he may  dispose of make his will and devise the say estate to trustee in trust to  raise for his three grandaughters the full sum of pound to be pay to each at  their full age of twentyone year and if any of they die their share to go to  the survive sister the article between Samuel Allen and Esther Allen the  mother and the three sister be make to secure to Esther the sum of pound to  mary Allen pound and to secure likewise to Esther pound to be divide equal  between the daughter a clause at the end of the article by way of general  release of all the party upon Samuel allen perform his covenant Esther be to  deliver up all deed whatsoever her jointure except atkins the article enter  into with Mr Menill be a absolute conveyance of a reversion in fee free from  all encumbrance except the jointure of Esther the mother of Samuel Allen in  consideration of pound S d the purchase money there be a covenant of warranty  from Samuel Allen against all encumbrance do by he or his ancestor in the  schedule of encumbrance the very first mention be the two term one of and the  other of create by John Allen in the settlement the second of which be for  raise pound for his daughter the decree of the court of chancery be that  Menill shall perform the article and that the conveyance already execute shall  be deliver to Menill and not that a new conveyance shall be prepare mrs Esther  Allen die in then Menill who hang off before be very eager to perform his part  Samuel die in June the bill be bring in order to have the sum of raise by the  representative of the survive trustee and pay to the daughter and also for the  sum of pound they be entitle to under the article between Samuel and Esther  Allen Mr Wilbraham counsel for the plaintiff I hope your lordship will be  clear that the daughter of John Allen be entitle to the pound unless they have  do some subsequent act to bar they it have be insist that unless the daughter  have release the there be no consideration for the pound pay to Esther under  the article he cite the case of more v Mayhew Ch Cas where pay part of the  purchasemoney after he have express upon his own show notice of a deed of  lease and release it be hold that he shall be presume to have have notice ab  beginning where there be other deal between Samuel and Esther and other  controversy the release shall not be extend to any other transaction beside  the article themselves in favour of a purchaser with notice and for this  purpose he cite Bovi contra smith and bony Ch Cas there the plaintiff have  give a distinct release before the purchase make of all action real and  personal and yet there be no occasion prove why that release shall be make nor  any allege and there be other deal between they and therefore be presume not  to atkins relate to this matter and so the decree pass for the plaintiff Mr  brown counsel for Mr Menill say the cross bill be bring to have a assignment  of the two term from the sister of Samuel Allen deliver over to Mr Menill to  secure his purchase the estate on which there be a limitation to the daughter  be sell for so small a sum as pound the objection start by the plaintiff be  never make till some of the purchase money be pay nor even till the assignment  of these very term be draw and ingross and upon the very brink of be execute  by they the release be draw in as full ample and general word or term as can  be devise to prevent any dispute the first contingency be in case there shall  be no issue live at the time of the decease of John and Esther or either of  they and the last clause that speak of the payment of the pound mention that  the interest of five per cent shall be lie the first half year after the  decease of John or Esther Mr attorney general in reply for the plaintiff  compare this case to the common one in settlement of a limitation to a for  life remainder to the issue male of his body remainder over on failure of  issue male if there shall be issue male at the decease of the father yet if it  shall fail afterward the remainder over will still take place atkins er p and  that if upon the execution of the article the pound have be in contemplation  there ought to have be a express covenant from the daughter to renounce the  benefit of this provision and as there be no such covenant he submit it to the  court that the plaintiff be still entitle to the pound Lord chancellor this  settlement be very inaccurate pen it have be insist that the meaning of it be  that if there shall be a failure of issue male in the lifetime of John Allen  and Esther his wife then the pound shall not be raise and therefore as there  be issue male in the lifetime of John and Esther the contingency have never  happen but this be a absurd construction to confine it to issue male in the  lifetime of John and Esther because it be express extend to issue male bear in  due time after the death of John therefore this can never be the meaning of  the word atkins I do not think that the release under the article be material  on one side or the other and therefore it may be throw out of the case there  be three consideration first whether the contingency have take place upon  which the trust of these term be to arise or not and if it be still to ten  regard as a beneficial interest or whether they be attendant upon the  inheritance second whether the plaintiff have bar themselves of their right to  the pound three whether the defendant Mr Menill be entitle to have a  assignment of these term as to the first question upon take all the  circumstance of this case together I be of opinion the contingency have not  happen that in case there shall be no issue male of the say John Allen on the  body of the say Esther Stephenson beget at the time of the decease of the say  John Allen or of the say Esther Stephenson which shall first happen or in  ventre sa mere g Videathe settlement or in case the issue male between they  shall all of they die without issue male and that there shall be a failure of  issue male of the body c and that there be at the time of such failure issue  female one or more daughter between they the say John and Esther beget live at  the time of the say John allen decease or of the say Esther c then the trustee  c shall raise and pay if one daughter pound if two or more pound equal to be  divide c the ambiguity of this clause arise from the word live the counsel for  the plaintiff have construe live to refer to daughter live at the time of the  failure of the issue male and that the meaning of the word live at the time c  be to be take as a further description in regard to the failure of issue male  the counsel for the defendant have construe the word live to refer to the  issue male live at the time of the say John allen decease or of the say Esther  which shall first happen atkins the clause relate to the payment explain it  still further and show the parent can not mean to extend the payment of these  portion to a son die without issue male at any time whatsoever for the brother  may have live to fourscore year which be too remore for they to have in their  contemplation and therefore they have fix the payment at twentyone the  interest also be to commence upon the die of John Allen c this refer to either  die without issue male and in this case both die leave issue male the meaning  then be plain that this be intend as a provision for daughter if there shall  be only daughter at the time of the death of John Allen or of the say Esther  the common and ordinary provision in marriage settlement be that if the son  die before twentyone then the trustee c shall by sale c levy and raise and not  that it shall be stretch to a die at any time the second question be whether  the plaintiff have bar themselves of their right to my apprehenssion it be  intend by the mother daughter and son that all the estate in the family shall  be part with upon the consideration express in the article atkins er p it  appear plain too that the son be to convey this estate to Mr Menill clear of  every thing but the estate for life which the mother have by virtue of her  jointure without any reservation beside for any other part of the family great  part of the estate of John Allen be settle on the mother with remainder to the  son in tail remainder to he in fee and therefore the son by fine can have bar  the remainder on all the estate except the estate leave by the grandfather the  proviso be not intend to save any right the daughter may have upon any of the  land and after have a sum of money in consideration of these article it will  be too much for they to contend that they have a right to set up this demand  it seem to I that Mr Menill have give very ample for this estate and shall a  mistake of the party who know nothing of the pound at the time turn to the  prejudice of a fair purchaser atkins it be right observe that the bill be  inconsistent for will they have the consideration of these article and the  pound too when their release a demand be the only pretence for the sum of  pound the consideration money in the article it be say that the whole article  must be perform but Samuel Allen have not perform his part for he have not  convey the Shewell estate and therefore the article be void but still the  defendant Mr Menill be entitle to his equity for the heir of Samuel ought to  perform it and if the plaintiff insist upon the pound they must convey to Mr  Menill or else they be not entitle to it which they agree to accept Lord  Hardwicke dismiss the bill as to the trust of the term set up by the plaintiff  and they be decree to convey by a assignment of the term to Mr Menill upon  payment of pound part of the pound which sum be direct to be pay in three to  the plaintiff from the time of the conveyance execute the residue of the pound  be direct to be pay to the executor of the mother the plaintiff maiden and his  wife Reg lib b fol