buckley against simonds ent James rot now at this day the case of Buckley and  simonds be argue by justice Hutton and by winch and the case be brief this  whether Buckley administrator to Andrew Buckley her husband be plaintiff in a  quare imp against John simonds John prior and Robert pierce alias price for  disturb her to present to the church of d and show that Andrew Buckley  grandfather of the husband of the plaintiff be seize of the say advowson in  gross and present one l S and be die after who death the advowson descend to  Richard Buckley and that the church become void and that one Richard William  usurp upon the say Richard Buckley then be within age and that Richard Buckley  also die and by his death the say advowson descend to Andrew Buckley as  brother and as heir to Richard and that the church become void and before the  presentment by Andrew and within month Andrew die and that the administration  of the good of Andrew be commit to the plaintiff and that she present within  month and the defendant disturb her and the defendant plead in bar and confess  the seize of the grandfather as be allege in the declaration and they say that  the say Andrew Buckley Elizabeth by his indenture make between the say Andrew  Buckley on the one part and John Preston of the other part by which the say  Andrew Buckley by the same indenture covenant with Preston in consideration of  a marriage to he have between John Buckley and Elizabeth Preston daughter of  John Preston be covenant with he and his heir that immediate after the death  of he and of his wife the say advowson inter alian shall be to the say John  Buckley his son and to Elizabeth Preston and to the heir of John and so the  defendant claim by virtue of a lease for year make by John Buckley and the  plaintiff demand oyer of the indenture which be read to this effect that  Andrew Buckley by the say indenture covenant with Preston that in  consideration of a marriage between his son and the daughter of Preston that  he will grant a rend charge of S out of his land at Weymouth and at Melcombe  king Payable at usual feast and be covenant for he and his heir that he will  convey the land in Melcombe king and wick king to such person as Preston shall  appoint provide that the say Andrew Buckley and his wife may enjoy that during  their life without impeachment of waste and covenant that immediate after  their death the land shall immediate remain come and be to the say John  Buckley and Elizabeth his wife and that the advowson of Bradway shall remain  come and be to the say John Buckley and Elizabeth his wife and upon all the  matter the question be whether by this last covenant a use will arise of the  advowson in Bradway to John Buckley for if a use be raise to he then this  lease make by he be good and by consequence the title of the defendant be good  to present to winch er p this advowson and if not then the fee always remain  in Andrew Buckley the grandfather and by devise descend do come to Andrew  Buckley the husband of the plaintiff and then the quare hinder be maintainable  and Hutton begin his argument be argue that no use will arise to John Buckley  by this indenture for when a man will raise a use by way of covenant there be  necessary thing which ought to concur first be a sufficient consideration as  of blood or marriage or other collateral consideration as if I covenant with  you that when you feoff I of certain land I will stand seize to the use of you  and your heir this be good but if the consideration be for money then winch  this ought to be enrol or otherwise no use will arise the second point be  there ought to be a deed to testifle this agreement for otherwise no use will  arise as be resolve Elizabeth in collard and collards case three be who  covenant ought to be seize of the land at the time of the covenant as be  resolve Elizabeth in Yelvertons case a man covenant to stand seize to the use  of his son of such land as he shall afterward purchase and it be hold void  because he be not seize at the time of the covenant and last the use must  agree with the rule of the commonlaw and he cite Chudleys case a man covenant  to stand seize to the use of one for year the remainderto the right heir of I  S this remainder be void though this be by way of covenant and use for the  freehold may not be in abeyance and so if I will at this day bargain and sell  my land in fee they shall not pass without the word heir for it be not the  intention of the say statute to raise use in such manor contrary to the rule  of the commonlaw or use which be uncertain and in our case the intent be that  no present use shall arise for out of the same land be grant a rend charge to  John Buckley and Elizabeth his wife by which it appear plain that it be not  their intent that any present use shall arise by the delivery of the indenture  and if the use do not arise present upon the delivery of the indenture it  shall never arise at all also the intent appear for it be that the land shall  remain free from encumbrance and this sound only in covenant and for this  reason the covenant shall be of the same nature and last the covenant be that  the land shall remain and be and this be altogether incertain and for this no  use will arise because this fail of word as if I covenant to leave my land to  my son after my death this will not raise a use to my son no more then if I  covenant with the friend of my wife that after my death she shall have my good  this will not make my wife to be executor and be vouch h h the Lord borough  case dyer and so he conclude that judgement ought to be give for the plaintiff  justice winch argue to the same purpose and he say the first part of the  covenant contain that there shall be a marriage before such a day if the party  shall agree and the second part be a covenant and the same shall have S for  her jointure and if this covenant execute a use of the land present then this  destroy the jointure which be not the intention of the party three there be  another covenant to convey copyhold land and if this covenant do raise a use  then it will follow that John Buckley shall have the land though the marriage  do take effect and beside the covenant do create a use present or not at all  and then when this use be to be raise by this covenant which contain in that  nothing but future and executory matter this will not create a present use and  be cite the book which be vouch at the bar and by Hutton and so be conclude  that this covenant will not raise a use present to John Buckley and that  judgement ought to be give for the plaintiff and at another day the case be  argue by Hobert chief justice for the plaintiff and that no use will arise by  this covenant and he say if I will covenant to make assurance of my land to my  son or to a stranger this covenant be mere nugatory and will not raise a use  but on the contrary if I will covenant to stand seize to the use of my son  though there be also a covenant to make further assurance yet this will raise  a present use for the covenant be declaratory and not Obligatory and so be  dyer and there be no word to assure the land or to stand seize to use but only  that the land shall come remain and be in tail or in fee and there be no word  to assure the land and this case be agreeable to the case of h by rede that no  use will arise and the reason be plain because the covenantor have election in  which manner be shall have that whether by dissent or in any other manner for  if I covenant that my land shall descend to my son after my death no use will  arise by this covenant and he put the case in Chudleys case that if a man  covenant that after winch er p his death his son shall have his winch land in  tail it be say that the son shall have a estate execute by the statute of h  and the covenantor shall have a estate for life and so the law make in that  case fraction of estate as the case of the Lord seynor dyer seem to accord  with this and beside those two book be say he can not find any book which will  warrant that and for that reason he hold those two book to be no law for if I  covenant that my son shall have my land after my death this will not raise a  estate to I by implication for life and a estate to my son and so by such mean  to change my estate in fee for a estate for life without more word for the  word covenant in his proper and native signification be only Obligatory and  yet it have be always conceive sufficient to raise a use to he who be not  party to that as if I covenant with a stranger that I will stand seize of my  land to the use of my son this will raise a use to my son and yet neither my  son nor the covenantee may have a action of covenant but a use will very well  arise to my son as if a man bargain and sell his land in consideration of l  pay by I S though in this case the consideration arise from a stranger yet  that will pass the use to the bargainee and in case of covenant it be not this  word covenant only which create the use but it be rather the agreement of the  party which be testify by the covenant for if sufficient agreement appear  there will not need this word covenant as if I will agree and declare to stand  seize to the use of my son by which it appear that the word covenant be only  declarative of the intention of the party and then in the principal case the  covenant be not that the son shall have the land but that the land shall come  remain and be to he and those word be incertain as h revert come or descend  and for that reason it be all one with the law of the same case and then void  to raise any use for the incertainty and then when Andrew Buckley covenant  that his son shall have his land and no word to inverse his intention and for  that reason the intention shall be liable to a action of covenant and not to  change his estate which he have in fee for a estate for life by this covenant  but if he have express covenant that in consideration of marriage of his son  that he will hold his land for life and after this shall be to his son this  will change the estate which be in fee for a estate for life but in our case  the covenant be general and leave to the indifferent construction of the law  the word covenant shall be take in his proper and native signification and  this be Obligatory and so he conclude that this covenant be at the first to  grant a rend and be executory and the last part of that be executory for  assurance and the limitation of the estate to the son be entangle between  these two covenant this shall be of the same nature and by consequence the  covenant be Obligatory only and will raise no use to the son and so be  conclude that judgement shall be give for the plaintiff and it be command to  be enter accord