case Osgood versus stride all see Ithell v bean Ves sen price v Jenkins Ch d  Lord Macclesfield Mod Eq   ab pl father and son on the son marriage article to  settle land on the husband for life remainder to the wife for life remainder  to the issue male of the marriage remainder to the nephew in fee whether on  the death of the husband and wife sans issue the nephew can compel a specific  performance of the covenant Laurence head seize in fee of the manor of  Winterton in come Berks have issue Laurence head Edward head grace marry to  one Osgood and several other son and daughter and upon the marriage of his old  son Laurence with mary disher he settle good part of the premise upon his say  son Laurence and his wife mary and the issue male of the marriage with a power  to raise pound on the premise if there shall be no issue male and but two  daughter which happen to be the case Laurence the son and his wife die without  issue male leave two daughter the defendant mary wife of the defendant stride  and Eleanor since dead marry to one Coxwell who leave issue the defendant John  Coxwell old Laurence head the father afterward by indenture of settlement in  settle the premise to several use subject to the charge of pound to his two  grandaughters with a power of revocation and limitation of new use afterward  by endorsement on the say indenture of settlement the endorsement be date the  d February old Laurence head revoke the old use and limit a new use to his son  Edward head in fee but old Laurence head peer William continue in possession  neither bad be for ought appear any other estate save this of Winterton peer  William er p afterward old Laurence pay the two daughter of his old son  Laurence the defendant mary and the say Eleanor pound apiece in all pound be  their portion secure on the premise and take a receipt from each of they in  write subsequent to which on a treaty of marriage betwixt Edward head then old  son of old Laurence head with Elizabeth pocock by marriage article date may in  consideration of the say intend marriage and pound portion pay to the say  Edward head the son old Laurence and Edward head both covenant with the  trustee within a month after the marriage to convey the say manor of Winterton  to the say trustee and their heir to the use and intent that Elizabeth the  intend wife of Edward head shall have a rentcharge of pound per annum issue  out of the premise for her life for her jointure and that Laurence head the  father shall have a rentcharge of pound per annum out of the premise for his  life and that subject to these rentcharge the premise shall be settle on  Edward head for his life remainder to his first and every other son in tail  male by that marriage then with a provision for pecuniary portion charge on  the premise for the daughter of that marriage remainder to Laurence head a  grandson to old Laurence by another decease son and his heir male who be since  dead without issue remainder to his grandson John Osgood son of grace Osgood  the old daughter of old Laurence and his heir male remainder to the right heir  of old Laurence head the father peer William Laurence the father die within  three day after the article have continue in possession of the premise till  his death the wife of Edward head the son die without issue and on the October  the say Edward die without issue but by his will devise the premise to the  defendant his heir at law and now the say John Osgood bring his bill against  stride mary his wife and John Coxwell who be the heir at law as well of  Laurence head the father as of Edward head the son to compel a conveyance of  the premise to the plaintiff John Osgood in tail male pursuant to the article  all the precedent estate be determine against which it be object for the  defendant that though the limitation in the article to the wife of Edward for  her jointure of pound per annum and of her husband Edward estate for life and  the remainder to the issue male of the marriage be all limitation make on  valuable consideration and must be suppose to be stipulate for by the friend  of the wife or by the wife in consideration of the marriage and portion vet  the subsequent limitation to the plaintiff John Osgood be mere voluntary and  out of the consideration of the marriage or portion and pure the bounty of he  from who the estate move that it have be often determine that one and the same  settlement may be on good consideration in part and voluntary and fraudulent  as to the rest and so may article be peer William then if the limitation to  the plaintiff Osgood in the marriage article be mere voluntary as they insist  it be it have never be know that a court of equity do compel a execution of a  voluntary agreement that the reason why on article for a purchase where the  money be pay a court of equity compel a execution of such article be for that  it be unreasonable the covenantor who have receive the money shall retain the  land but as upon a naked bargain there be no remedy at law so neither be there  any in equity and though in case of a covenant or agreement by deed there be  no consideration requisite the covenant be good without any yet at law such a  covenantor will recover but d or such like damage and matter of so slight a  value be beneath the dignity of this court also several case be cite of  copyhold be devise without any previous surrender under which circumstance  equity will never supply the want of a surrender unless in case of debt for  young child or a provision for a wife so in the case of Fursaker and Robinson  prece in Chan where when a man make a defective conveyance of some copyhold or  customary land to his bastard with a covenant for further assurance yet this  be a voluntary conveyance though to his own natural child this court will not  compel the heir of the covenantor to make further assurance peer William and  Mr Talbot cite and much rely on the case of sir James Bellingham versus  Lowther I Chan can where sir h Bellingham on his marriage with Catherine  Lowther covenant to settle certain freehold land to the use of himself peer  William er p and Catherine his intend wife for their life remainder to the  heir male of his body by her remainder to the heir male of his own body  remainder to his brother Allen Bellingham in tall remainder to the heir of sir  Henry and covenant to settle certain copyhold land to the same use sir Henry  Bellingham be travel to make a surrender of his copyhold land pursuant to his  covenant but fall sick by the way however he make a letter of attorney to  other to make this surrender but die before it be do the copyhold descend to  his daughter as heir general and the brother Allen Bellingham who be the  remainderman in the article bring his bill to have this covenant execute by  the heir at law for the convey of the copyhold to he in tail prout the article  and there it be say that the covenant be voluntary as to the brother Allen  Bellingham he be no party to the article nor within the consideration of the  marriage or marriage portion and that the article may be fraudulent as to the  brother though good as to the wife and issue of the marriage and a voluntary  conveyance to a young brother ought not if defective at law to be make good in  equity against a heir for which reason the then Lord keeper dismiss that bill  and will not compel a execution of such voluntary article which Mr Talbot say  come very near the principal case but be strong by reason of the accident of  death peer William also it be insist that in this case in the covenant for  settle this estate the heir of the covenantor be not name and consequent not  bind and it be a constant rule that in a covenant or warranty if the heir be  not name he be not bind beside that in this case it appear not to have be  Edward intention that Osgood shall have the premise after his death he have by  his will give the same to his heir at law to all which it be answer that this  bill do not seek to defeat a purchaser or hurt a creditor that it be only to  compel a heir who be pars he that goes before to perform the article of his  ancestor a heir who any voluntary conveyance will bind and this in a court of  equity too where article amount to a conveyance that this be not a voluntary  limitation as to the plaintiff Osgood who in the article be name the grandson  of old Laurence head and consequent it be part of the marriage agreement and  the marriage be the consideration and occasion of the limitation in the  article that upon the circumstance of this case old Laurence head the father  must be intend to be the owner of the estate or at least that it be in trust  for he that it can not be suppose though by the inducement of a power of  revocation lie have limit the premise to his son Edward in fee but that this  be in trust for himself because peer William it can not be intend that he will  strip himself of all that he have which notion be still far confirm by his  continuance in the possession of the premise to the time of his death so  likewise by the limitation in the article of pound per annum rentcharge to old  Laurence for his life with a estate for life only to Edward head remainder in  tail to his son by that marriage remainder to the plaintiff Osgood with  remainder in fee to the right heir of old Laurence for it will be difficult to  imagine that Edward head the son will ever have accept of those limitation to  himself or have agree to the limitation to his father if he have be then owner  of the estate then take old Laurence head to have be owner of the estate it  may be reasonable believe that when he be desire by his son Edward or the wife  relation to come into this settlement be consent to it on term and may say I  will part with my estate upon your marriage but it shall be so settle that if  you my son Edward die without son it shall then go to my grandson John Osgood  and his issue male nay I will have the estate so firm secure to my grandson  John Osgood that it shall not be in the power of you to bar that remainder but  that you shall be only tenant for life neither shall your issue male by any  other wife be prefer to my say grandson and if this be so then plain that part  of the article whereby the limitation be make to the plaintiff Osgood can not  be term voluntary since without that it be probable old Laurence head will not  have enter into any article at all also I cite hard Rep Jenkins versus kemish  and I lev where sir Nicholas kemish on the marriage peer William of his son  Charles kemish with blanch Mansell in consideration of this marriage and of  pound marriage portion settle the premise to the use of himself for life  remainder to his son Charles and the heir of his peer William er p body by  that marriage remainder to the heir of his body by any other wife with a power  to sir Nicholas kemish the father by deed to charge the premise with pound sir  Nicholas borrow pound and secure it by mortgage by way of lease and release of  the premise in fee afterward sir Nicholas die and his son Charles die without  issue by that wife but leave a son by a aftertaken wife and on a special  verdict in ejectment it be resolve that this mortgage in fee be not a good  execution of the power for raise the pound in regard this if good will be a  dislodge of all the estate but then it be object that the issue male who will  avoid the mortgage be not by this marriage on which the settlement be make but  by a subsequent marriage the limitation to he be voluntary and as against this  mortgagee fraudulent but the very word of that great man Lord hale in Hardres  be that the consideration of the marriage and the marriage portion will run  through all the estate raise by the settlement though the marriage be not  concern in they so as to make they good against purchaser and to avoid a  voluntary conveyance which case come afterward into this court and be in Chan  case and that it appear by a note in the margin in lev peer William that the  Lord keeper Bridgman be of the same opinion that the consideration of the  marriage and marriage portion run through and extend itself to all the  limitation in the settlement now if this case be so as this authority which be  a very great one prove it to have be it be strong than the principal case and  show that the consideration of marriage make all the limitation good even  against a purchaser or mortgagee whereas they the plaintiff be contend only  against a heir who the most voluntary settlement will bind and what will make  a valuable consideration in case of a settlement will make a valuable  consideration in case of article for the make a settlement that it be not  necessary the consideration money shall be pay by the party to who the  conveyance be make but if a three person pay it that will be sufficient to  prevent the conveyance or article from be voluntary and consequent in the  present case the portion which be pay to Edward head be a consideration for  all the limitation in the marriage article also in these article John Osgood  be call the grandson of old Laurence head who make the settlement and then the  consideration of blood be a sufficient consideration against a heir though  perhaps not against a purchaser or if the estate be construe to move from  Edward head the plaintiff Osgood be nephew to he and that blood be as to he a  sufficient consideration it be sufficient to raise a use and what be so will  be a sufficient consideration also to raise a trust in equity peer William for  suppose a man have before the statute of Henry of use covenant to stand seize  to the use of his grandson or his nephew this certain will have raise a use  and such as a court of equity will have compel the execution of and by the  same reason if a man in consideration of blood be to covenant to settle land  upon his grandson or nephew this will raise a trust and a court of equity will  look to the execution thereof which be the principal case express in the very  article and this differ from the case of Fursaker and Robinson where in a  defective conveyance a covenant to make further assurance to a bastard be hold  not good in regard there be no blood and a covenant to stand seize to the use  of a bastard will be void as to the objection that the heir be not express  name in these article it seem to be whole immaterial for if the consideration  be good to raise a trust as on the part of the plaintiff it be contend to be  then the ancestor from the time of the execution of the article be a trustee  for all the trust therein and suppose the ancestor to be a trustee his heir  who stand in his place must be a trustee also and it will be a plain case if a  man for money by he receive shall covenant to convey land to I but shall not  covenant for his heir yet the receipt of the money will make he a trustee and  he be so his heir after his death must be a trustee also that with respect to  the will of Edward head by which he peer William undertake to devise the  premise from the plaintiff Osgood that be likewise immaterial his intention as  to this case must be all immaterial he and his father old Laurence have bind  the estate by their article and put it out of their power to devise or give it  away to any other person peer William er p last it be insist that if the court  will not help the plaintiff it ought not to help the heir nor will it then  compel the trustee of a old term for year which be yet stand out to transfer  that term to the heir at law Lord chancellor this last argument imply that the  trustee shall keep the estate himself whereas it be plain he shall not but  shall be a trustee for he to who the reversion shall be adjudge to belong the  marriage and marriage portion support only the limitation to the husband and  wife and their issue this be all that be presume to have be stipulate for by  the wife or her friend but as to the case cite in Hardress and levinz where  there be a limitation to the heir of the body of the husband by any other wife  that though not make for a valuable consideration be not however fraudulent  for there be a fair and honest occasion for the make of such settlement  videlicet the marriage it can not well be intend to have be make to cheat a  creditor unless the person make the same be then in debt the very remoteness  of the limitation to a brother or to the issue by a aftertaken wife be a  evidence that such limitation be not intend to cheat creditor peer William if  old Laurence the father have the whole estate I do not see with who he can  contract except with his son wife and her friend which will only make a good  consideration for the husband and wife and their issue but what very much help  this case be the appointment of the estate by old Laurence by the endorsement  to his son Edward in fee which give the son Edward the legal estate and also  old Laurence have pay to his two grandaughters mary and Eleanor pound apiece  take their receipt for this money whereby old Laurence obtain a interest in  equity in this estate at least a trust for the raise pound upon it and it can  be intend but that there be some trust betwixt old Laurence and his son Edward  for that the former will not part with all he have in his lifetime to his son  Edward which be render still clear by his continue in possession after his  appointment to his son and by the son submit to accept such limitation as be  make he by the article wherefore each of they the say old Laurence head and  Edward head have a interest in the premise so that the one without the other  can not make a settlement thereof here be now a proper person for old Laurence  the father to stipulate with videlicet his son Edward and it may be well  intend that old Laurence head do stipulate with his son Edward that he the say  Laurence will come into those article and join therein on term that the estate  shall in case of peer William Edward die without issue male by that marriage  and young Laurence head die also without issue male then go to the plaintiff  Osgood and this probable be part of the marriage agreement and of the term on  which it be make though the leave out the son of Edward by any other marriage  may be a mistake but since this may be and probable be nay appear to have be  the term of this marriage agreement and the inducement to old Laurence to join  therein equity ought to decree a performance of it but I will give no cost and  because the limitation by the article be to Edward for life remainder to his  first c son in tail male though the limitation to the plaintiff Osgood be to  he and his heir male which may seem to have be design distinguish by the party  from the former limitation yet it be in case of article where a latitude be  give to a court of equity to expound the same I will construe it to be intend  to the plaintiff Osgood and his son in tail male so that the premise shall be  convey to he for life but it shall be sans waste with power to make such lease  as tenant in tail may with trustee to support contingent remainder remainder  to his first c son in tail male with the like remainder to the next person  videlicet Southby for his life sans waste with remainder to trustee to  preserve contingent remainder remainder to his first c son in tail male  remainder to the right heir of old Laurence who be the defendant mary stride  and John Coxwell note in December this cause be reheard before Lord chancellor  king who after long debate take notice that several material thing have be say  against the decree peer William however in case where he himself be not full  satisfy he will never reverse his predecessor decree and that here his  lordship be not so well satisfy that it appear to he old Laurence head have a  interest at least a equitable one in the premise and it be considerable that  by these article in question he have provide peer William er p for every  branch of the family and as it seem to be a very reasonable agreement for a  settlement his lordship affirm the decree for carry the same into execution  Reg lib b fol vide Edward v countess of Warwick ante neeve v Keck Mod Vernon v  Vernon post and bro p c and Edward bro p c S c gore v Nash atk Stephens v  trueman ves Ithell v bean ves roe v Mitton will Pulvertoft v Pulvertoft Ves  Johnson v Legard mad m S Clayton v Lord Winton mad n m S Sutton v chetwynd  mere