case langley versus brown June see Evans v Evans l I Ch Lord Hardwicke hold  there be no ground in this case to relieve either under the head of fraud or  mistake nor any pretence to set asideathe deed and dismiss the bill judgement  be give in this cause a bill have be bring by the sister and heir at law of  Richard Benthall to be relieve against the deed execute by Richard Benthall in  his lifetime to mrs Elizabeth brown and for inspection of the title deed of Mr  Benthalls estate which after his death come to the hand of mrs Elizabeth brown  and be now in the defendant custody and in case the legal estate do not pass  by the deed then the plaintiff insist upon her right as heir at law the  material question be whether deed execute by Mr Richard Benthall a old man in  view and contemplation of a marriage very much to his own prejudice and atkins  er p great to the benefit of mrs Elizabeth brown the intend wife shall be  establish in this court notwithstandingthe marriage never take effect pound a  debt due from Mr Richard Benthall to mrs Elizabeth brown for some year before  be recite to be part of the consideration of the follow deed of lease and  release date October make between Richard Benthall of the first art Elizabeth  brown of the second part and trustee of the three and four part recite that  Robert Benthall be indebt to Elizabeth brown in pound and in consideration  thereof he grant to trustee and their heir to the use of Elizabeth brown for  life then to trustee to preserve contingent remainder then as and for all  manor land c or such part thereof as she the say Elizabeth brown shall think  proper to the use of trustee and their heir during the life of such person  only as she the say atkins Elizabeth brown shall by any write or write execute  by her in the presence c or by will execute c either absolute or conditional  direct limit and appoint in trust for such person c and for want of such  appointment as aforesaid to the use of Thomas wile his executor c for the term  of year without impeachment of waste subject to the proviso power c herein  after declare concern the same and from and after the expiration or other soon  determination of the year term to the use and behoof of the heir of the body  of the say Elizabeth brown and for want of such issue then to the use of such  person and person his her or their heir for such estate and estate and in such  manner as the say Elizabeth brown whether sole or marry and with or without  the consent of any husband she shall happen to have shall by any write c or by  will or write purport a will direct limit and appoint and Chargeable with any  sum c not exceed pound and it be agree by and between the say party that all  and every appointment make by the say Elizabeth brown by virtue of the power  in this deed may from time to time be revoke and a new appointment make and  for want of such appointment then to the use of the say Elizabeth brown her  heir and assign for ever a power to Elizabeth brown to sell the premise to pay  encumbrance a general warranty by Mr Richard Benthall who covenant that he be  seize in fee have full power to grant that mrs brown and her heir shall  peaceable enjoy that the premise be free from encumbrance except a mortgage d  pound and the recognizance of si and that he will at his own expense do  further act to assure the term of year be declare to raise portion out of the  estate for the young child of the say Elizabeth brown not exceed pound the  deed of appointment of November recite the power create by the forgo  settlement in the first place and then follow the appointment now know the  that I the say Elizabeth brown in pursuance of c do by these present c appoint  limit give and grant all and singular the say manor of Benthall and all and  every the land c and the reversion and reversion thereof expectant upon my  death in case I shall die before my intermarriage with the say hard Benthall  to hold to he the say Richard Benthall his heir and assign for ever subject  nevertheless and upon this express condition that the say Richard Benthall his  heir or assign shall within the space of month next after my decease pay to my  brother John atkins brown the sum of pound to Ralph brown pound and to mary  brown pound but in case the say Richard Benthall shall marry I the say  Elizabeth brown then I do hereby declare the appointment and all and every  thing contain therein shall be void the second deed of appointment bear date  march recite the lease and release and the forgo appointment and then follow  now know the that I the say Elizabeth brown for good and valuable  consideration I hereunto move and in execution and performance of the say  power reserve to I in and by the say in part recite indenture of release and  also in execution and performance of all and every other power c reserve in  and by the say indenture or otherwise I the say Elizabeth brown by these  present under my hand and seal by I attest in the presence of I m c m and  Elizabeth b do appoint limit and direct all and singular the manor c in the  say recite indenture shall from and after the decease of I the say Elizabeth  brown be have hold and enjoy c unto and to the use of the say Richard Benthall  for his life and I atkins er p do by these present assign and set over all c  to the say Richard Benthall and his assign for the term of his natural life  and from and after the several deceases of I the say Elizabeth brown and the  say Richard Benthall then to the heir of the body of I and the say Richard  Benthall and for want of such issue to the use of my brother John brown and  the heir of his body and in default of such issue of John brown the like  limitation to Ralph brown and in default of such issue of Ralph the like  limitation to mark that with remainder to such person as Elizabeth brown shall  appoint with a power of revocation by the say Elizabeth brown a state account  between Richard Benthall and Elizabeth brown with relation to the produce by  the defendant and not controvert by the plaintiff Elizabeth brown levy a fine  in Trinity term c two year after the death of Richard Benthall and declare the  use of it to herself and her heir atkins in long after the fine be the present  bill file to this Elizabeth brown plead a purchase for a valuable  consideration which be overrule and she be order to answer after the plea be  overrule Elizabeth brown in easter term suffer a common recovery in which she  come in as vouchee and declare the use of it to herself in fee this be the  state of the case the plaintiff pray that as she be heir at law of Richard  Benthall the court either upon the foundation of her have the legal estate  will decree the possession to her or that the deed may be set aside on account  of fraud and imposition Lord chancellor first as to the plaintiff legal right  to the estate in possession second if she have no such legal right then  whether she ought not to be relieve on the point of fraud and imposition three  if there be no fraud or imposition whether she ought not to be relieve on the  suggestion of mistake and blunder in the drawer of the deed contrary to the  intention of the party there have be one general objection make against this  bill that the plaintiff ought to be leave to her remedy at law by ejectment in  the first place t e plaintiff be heir at law and where she can protect herself  by show her title as the deed and write be admit to be oat of her hand she may  proper come into this court a second reason for the bill be the apply by way  of redemption for this estate be allow to be it encumber with pound and  therefore she be regular in come here to compel defendant to take their money  a three reason that the charge of pound be by way of condition that the heir  do pay within month c now as the condition be break by the not be pay within  month c I doubt they can not prevail at law as to the merit of the title at  law it depend upon two point first upon the effect of the deedpoll of the  three of November out of which several point arise atkins second what be the  effect of the act subsequent to this deedpoll of the three of November and  also what kind of estate Elizabeth brown take under the indenture of lease and  release of the that of October she take a estate for life with a remainder in  tail c Videathe word of the deed itself as to the appointment under the  deedpoll of the three of November it certain be a good appointment of the  remainder in fee expectant upon her estatetail the next thing to be consider  on the deedpoll be whether this conveyance only operate out of her power or  out of her interest also vide sir Edward clear case   a har   Litt a n and it  be necessary for this purpose to consider the word of the deed now know the  that the say Elizabeth brown in pursuance of c do by these present c appoint  limit give and grant all and singular c and the reversion c in case I shall  die before my intermarriage with the say Richard Benthall to hold to he the  say Richard Benthall his heir and assign for ever by the word of the deed it  be confine to some power it be plain therefore nothing pass by this deed in  point of law but the remainder in fee and her estatetail remain undisturbed  and not touch by the power now she do not only limit end atkins er p appoint  but she give and grant consider then whether it can take effect out of the  interest abstract from the power in the first place there be no consideration  in the next place no livery and therefore there be no way of support it but to  make it operate by way of release to Richard Benthall as be in possession    Litt sect p h if take upon this foot it will be sufficient to create a base  fee to Mr Benthall voidable by the issue in tail for if tenant in tail  remainder in fee grant any estate to a to commence in possession after the  death of tenant in tail and afterward levy a fine to other use the estate of a  be merge in the fine vide Symonds versus Cudmore salk but if tenant in tail  convey to one during his own life or covenant to stand seize to the use of  himself for life with a remainder over this remainder it seem be void in its  creation see Machill v clerk salk the question then will come to this whether  the grant to Richard Benthall can amount to a conveyance in possession and I  think it can for it be intend only to take effect after her death and not to  pass any estate in possession atkins the next question will arise upon the act  which be subsequent to the deedpoll the first transaction be the deed of the  that of march be a appointment to new use a strong objection have be make on  the part of the plaintiff that it be entire void because Elizabeth brown have  make the former appointment without reserve a power of revocation and for this  purpose the case of heli versus bind have be very much rely on as the govern  case a man make a settlement wherein be a power from time to time to revoke  the use and to limit and declare new use in pursuance of this power he revoke  the old use and by the same deed limit new without annex a new power of  revocation to those new use afterward think he have by the first settlement a  power of revocation so often how often he by another deed revoke the last and  again declare other use of the same land it be decree that his power of  revocation by the first deed be execute and at a end and by consequence that  the revocation afterward be without any warrant and the use limit on the first  revocation must stand Eq can Abr pre Charles SC see dig case   a b Jones v  Manchester vent Teynham v web Ves zouch v Woolston burr but I be very doubIful  whether that case will govern the present though I incline at first that it  will this case be hear before Lord Harcourt who have it state for t he opinion  of the judge of the court of king bench and on a appeal to the house of lord  the decree be affirm by the unanimous opinion of the judge of the court of  common plea and court of exchequer in the present case here be two power in  the very creation a power to appoint use and a power to revoke use now the  power to appoint use Elizabeth brown have execute by the deed of the three of  November but the power of revocation have never be execute at all till the  deed of the that of march then the question will be whether both may n t be  execute once as they seem to be distinct and separate power in heli and bind  the power of revocation be execute and the doubt be whether the use can be  revoke so often how often without reserve a power of revocation there be no  occasion to give a determinate opinion on this point for even suppose the use  of the deed in march be void f think the use of the deed in November be well  bar by the recovery in what be the consequence of the fine why she have bar  her estatetail by virtue of the statute of h and likewise discontinue the  remainder in fee atkins but it be still strong if you consider the deed of  November as operate only out of her power accord to Symonds versus Cudmore  salk if the deed of the d of Nov have be consider as operate upon the interest  of mrs brown so as to pass a base fee determinable by the issue in tail then  the fine will have corroborate the state of the grantee seymour case a the  next consideration be the recovery I be of opinion that as the remainder in  fee be discontinue by the fine so it be well bar by the recovery it be make a  question year ago whether if tenant in tail remainder in fee levy a fine a  common recovery will have bar the fee cro Elizabeth Barton versus lever Poph  but this point be now full settle and there be not so much as a scintilla law  remain to the issue in tail see cruise suppose it possible the deed of the  three of November be intend to take effect out of the interest I think it will  be void because it be not to take effect in possession till after her death  and the consequence of this be that she remain tenant in tail with remainder  in fee to Richard Benthall and so be bar by the recovery another point to be  consider which be as to the effect of the fine I take it to be a fine with  proclamation and nonclaim by the deed of appointment in November in case  Elizabeth brown do not marry Richard Benthall in her lifetime she make he  tenant in fee he die she enter and gain a possession by abatement levy a fine  and five year pass consider then whether the plaintiff by this mean be not  effectual bar of any legal right atkins er p the counsel for the plaintiff  have find their relief in equity on three ground first on account of fraud and  imposition second that as this deed be make in view of marriage as it have not  take effect it be consequent void three upon the mistake and misapprehension  of the drawer of the conveyance contrary to the design and intention of the  party convey as to the first fraud and imposition here be no proof in the  cause of actual fraud it appear in evidence that Richard Benthall be a man of  very good understanding and likewise breed to atkins the law that he do not  rash and precipitate engage in this deed but take three day to consider and  give instruction about this settlement neither be there a syllable of proof  that mrs Elizabeth brown herself use any art to impose upon he or to draw he  in to execute this deed in her favour if there be no proof of actual fraud  then consider the circumstance of fraud arise from the internal evidence in  the deed themselves now it must be admit that there be such mark of fraud upon  the face of it as may just create suspicion in a that court whatever it can be  call a purchase because pound the pecuniary consideration be by no mean equal  to the value of the estate but then the question will be whether this  objection may not be answer by the apparent intention of Mr Richard Benthall  that the whole estate shall pass to her in possession in his lifetime which be  manifest from his declaration both before and after the execution of the deed  that a person put a groundless and unguarded confidence in another be not a  foundation in a court of equity to set aside a deed but it be plain that she  have a equal confidence at least for it appear in the cause that she trust he  for a long time with pound of her money without take so much as a note of hand  or any other security whatever the second ground of relief be that as the deed  be make in view of marriage which never take effect the deed be consequent  void the law of Scotland on this point be causan data non support with like a  exchange between party if not execute on one side it be void on the other but  I do not think I be to judge here accord to the strict rule of law with  relation to a gift of land causan marriage prlocuti it be observable that if a  woman in consideration of marriage give land to her intend husband and the  marriage do not take effect then the woman be entitle to her writ of causan  marriage prlocuti but on the other hand if a man have give land to a woman on  the like occasion she will have be entitle to the land though the marriage do  not take effect Fitzherbert n b it be object by the defendant counsel that to  go upon this ground of relief the marriage not take effect will be contrary to  the statute of fraud and perjury because here be no consideration of marriage  express in the deed itself but there be many case in this court where though  the consideration be not express in a deed yet if it appear to the court what  be the real and material consideration it have have great weight with the  court notwithstanding the statute of fraud and perjury see Lloyd v spillet  ante but the strong part of the defendant case be that though there be a  marriage intend yet this deed be not to be the marriage settlement but if the  marriage take effect a new one be to be execute and it appear in proof that  this be the design atkins but however absurd the intention of this deed seem  to be yet Elizabeth brown may provide for all the use of the marriage  settlement under it if she think fit the three ground of relief be mistake and  misapprehension in the drawer of the deed contrary to the design of the party  and to be sure this be as much a head of relief as fraud and imposition vide  Simpson v Vaughan ante and under this head it be insist on that the deed be  intend only by way of mortgage or security but on look into it nothing of this  kind appear upon the face of it the only thing that have at all the air of it  be the state account of the same date with the lease and release October the  that but I be of opinion this be only do with regard to the pound and to  create a evidence of the debt the next thing insist on in behalf of the  plaintiff be that if the construction of the deed of October shall prevail  which the defendant endeavour to put upon it then there be not so much as a  estate for life give to Richard Benthall before the marriage which be always  usual in marriage settlement I do take this to be a blunder in the drawer of  this conveyance and therefore if Mr Benthall in his lifetime have come into a  court of equity to be relieve the court will have do it on condition but this  be of no consequence to the plaintiff the great point for the plaintiff be  that take the deedpoll of the three of November atkins er p as part of the  agreement the drawer of it have so frame it as to let mrs Elizabeth brown bar  the remainder by the estatetail be leave in her power and that she have take a  undue advantage if this have appear in the cause I shall have be of opinion to  relieve but I must own after consider the evidence with all the care and  circumspection I be master of I can find sufficient proof of a undue advantage  three witness speak full to Mr Benthalls mind and declaration with regard t  his great love and affection for mrs Elizabeth brown and his desire that she  shall have the whole estate and that he express himself so both before and  after the execution of the deed I be very doubIful as the deed of the that of  October be word if mrs Elizabeth brown may not so often how often revoke the  use of any deed but if she can do the same by a fine a court of equity will  not take the power from her atkins though there be only parole evidence of Mr  Benthalls intention that mrs Elizabeth brown shall do what she think fit with  the estate yet this be sufficient to rebut a equity and in this light be like  the case of standard versus Metcalf before Lord Talbot length of time be a  material ingredient for the defendant because it may have prevent her from  have the benefit of such evidence as she may have have if the plaintiff have  apply soon for relief on the whole I do think there be not any room to relieve  upon the several head of fraud intend marriage or mistake or to set asideathe  deed and therefore as to this the bill must be dismiss but however I will  leave it to the plaintiff choice whether she will try the right at law and if  she have a mind to try it I will give her the assistance of this court in  clear all difficulty by remove the term for year out of her way so that she  may be able to come at the right