brown case and Rotheram widow one of the sister and   heir of Richard Benthall  decease Elizabeth bell widow and John turner and sarah his wife which  Elizabeth and Sarah be daughter and   heir of Elizabeth Langley decease the  other sister and   heir of the say Richard Benthall appellant ralph brown mary  brown edward brown and Elizabeth brown a infant respondent that march Mews dig  I where a bill be file to set aside a conveyance for fraud imposition and want  of consideration and for other relief and the court dismiss the bill so far as  relate to the conveyance but give the plaintiff liberty to proceed at law as  to the other matter and in the mean time retain the bill as to those matter if  the plaintiff neglect to proceed at law within a reasonable time and suffer  his bill to be absolute dismiss for such neglect he can afterward complain of  the decree by way of appeal there have be for many year a great intimacy and  friendship between the say Richard Benthall and one Elizabeth brown his  kinswoman of who fortune he for many year have the disposition and command he  on the that July make his will and after recite that he stand indebt to his  love friend and kinswoman mrs Elizabeth brown spinster in pound or thereabouts  for the great part of which money she have no security he therefore as well in  consideration thereof as of the great love affection and kindness which he  bear to her devise to her all his personal estate and the estate in question  for her life afterward by indenture of lease and release date the that and  that October the release be quadrupartite and make between the say Richard  Benthall of the first part the say Elizabeth brown of the second part John  matthews clerk of the three part and Richard Alport Henry Crompton and Thomas  wield of the four part recite that the say Richard Benthall stand indebt to  matthews as survive executor of Ralph brown decease in the principal sum of  pound secure by a recognizance in nature of a statute merchant and that the  premise after mention stand charge on mortgage with pound Payable to Thomas  lyster and also recite that he then stand indebt to the say Elizabeth brown in  pound upon a account state bear even date with the release and that the say  Richard Benthall and Elizabeth brown have agree that the premise therein  mention and the equity of redemption thereof and all his brown interest  therein subject to the payment of the say sum of pound and interest and pound  and interest shall in consideration of the say sum of pound be grant to the  use of the say Elizabeth brown in manner after mention it be thereby witness  that in consideration of the say sum of pound so due to the say Elizabeth  brown and of S pay by the say Alport and Crompton the say Richard Benthall do  convey the manor of Benthall and other land therein mention to hold to the say  Alport and Crompton and their heir to the use of the say Elizabeth brown for  life remainder to the say Alport and Crompton and their heir upon trust to  preserve contingent remainder and after the decease of the say Elizabeth brown  then as for and concern all the premise or such part thereof as the say  Elizabeth brown shall think proper to the use of the say Alport and Crompton  and their heir during the life of such brown er p person only as the say  Elizabeth brown by any write or write to be execute by her in the presence of  two or more credible witness or by any write purport a last will and testament  to be by her execute in the presence of three or more credible witness either  absolute or conditional shall direct limit and appoint in trust and to and for  the sole use of such person so to be name and for want of such appointment and  as to such part whereof there shall be no appointment make and also as to what  the say Elizabeth brown shall have make a appointment of as aforesaid from and  after the death of such person for who use and benefit the say Elizabeth brown  shall make such appointment to the use of the say Thomas wield his executor  administrator and assign for year to raise portion for the daughter and young  son of the say Elizabeth brown not exceed pound to be raise and dispose of as  she shall by write appoint and subject thereto to the use of the heir of the  body of the say Elizabeth brown remainder to the use of such person or person  his her and their heir and for such estate and estate and in such manner and  form as the say Elizabeth brown whether sole or marry and with or without the  consent of any husband she shall marry shall by any write or by her last will  in write to be execute in the presence of three or more credible witness  either absolute or conditional direct or appoint and Chargeable with any sum  not exceed pound and it be there by agree that every appointment make by  Elizabeth brown by virtue of the power therein contain 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 and in this  indenture be contain a proviso that in case the say Elizabeth brown shall at  any time afterward be mind to sell any part of the premise towards  satisfaction of all or part of the say sum of pound and pound and interest it  shall be lawful for her whether sole or marry and with or without the consent  of any husband she shall have to sell the inheritance brown of such part of  the say premise as shall be needful for that purpose and after payment of the  money to be raise by such sale in discharge or towards discharge of the say  sum and interest that from thenceforth the premise to be sell shall enure and  the say Alport and Crompton and their heir shall be seize thereof to the use  of such purchaser or purchaser and their heir mrs brown afterward pay off the  pound to matthews and the pound to lyster and take assignment of those debt to  trustee to keep the security subsist by deed poll date d November execute by  the say Elizabeth brown recite that by the say deed of settlement she be  entitle to the reversion and inheritance of the premise to her and the heir of  her body and for want of such issue to the use of such person as she shall  appoint and for want of such appointment to herself in fee she the say  Elizabeth brown in pursuance of all and every the power reserve to her for  that purpose by the say recite indenture do by the say deed poll execute in  the resence of three witness appoint limit and grant all the say premise and  the reversion and reversion thereof expectant on her death in case she die  before her intermarriage with the say Richard Benthall upon he his heir and  assign for ever Chargeable with the payment of pound to her brother John brown  pound to her brother Ralph brown and pound to her sister mary brown but in  case the say Richard Benthall marry her then she declare that the say  appointment and every thing therein contain shall be void by another deed poll  date the that march execute by the say Elizabeth brown in the presence of  three witness recite the indenture of the that October and the last mention  deed poll she the say Elizabeth brown for good and valuable consideration and  in execution and performance of the power reserve to her in and by the say  indenture of release do appoint limit and direct that all the say premise  shall after her decease be hold and enjoy and shall remain continue and be to  the use of the say Richard Benthall for life and she do thereby assign and set  over all the say premise to the say Richard Benthall and his assign for his  life and after the several deceases of her and the say Richard Benthall then  to the heir of the body of the say Elizabeth brown lawful to be beget  remainder to the use of her brother John brown and the heir of his body lawful  to be beget upon condition that the say John brown his heir executor or assign  shall within twelve month after the decease of the survivor of they the brown  er p say Richard Benthall and Elizabeth brown in case of her death without  issue pay pound to her sister mary brown and pound to her brother Ralph brown  in manner therein mention and in default of issue of her brother John brown to  the use of her brother Ralph brown and the heir of his body Chargeable with  the payment of the further sum of pound to her say sister mary brown as brown  therein mention remainder to the use of her sister mary brown and the heir of  her body remainder to the use of such person and person for such estate and  under such proviso condition and limitation as she whether sole or marry with  or without the consent of any husband she shall happen to have shall by any  deed or write or by her last will execute in the presence of and attest by  three credible witness devise direct limit declare or appoint the same and in  this deed poll be contain a proviso that it shall be lawful for the say  Elizabeth brown at any time during her life by any write to be execute by her  in the presence of two or more witness to revoke and disannul all or any part  of the use and use estate or estate proviso and condition by her thereby  create limit or intend and that the same shall at her will and pleasure be  void and of no effect to all intent and purpose and of no more signification  than if the say deed poll have never be make on the that may Richard Benthall  die unmarried and without issue in Trinity term Elizabeth brown levy a fine of  the estate in question and continue in quiet possession thereof for year and  upward but in Michaelmas term the appellant Ann Rotherham and Elizabeth  Langley as sister and co heir of the say Richard Benthall bring their bill in  the court of chancery against the say Elizabeth brown charge that the say  Richard Benthall propose to mortgage the premise to her for a term of year or  for her life or otherwise to secure the say pound and that a treaty of  marriage be on foot between they they agree that a deed shall be prepare to be  a security for the say pound if the marriage do not take effect and to be a  provision for her and the issue of that marriage if it do take effect and that  he leave it to the say Elizabeth brown and her brother to get such deed  prepare as will answer that intent and to employ a attorney as they think fit  that by their direction and management such deed be accord prepare and that in  confidence of their be draw pursuant to the agreement the say Richard Benthall  without consult any person learned in the law but such as be employ by and in  the interest of the defendant execute the say deed of October that the say  conveyance be obtain from the say Richard Benthall by fraud and undue  influence and that in all event the same can be consider only as a security  for the say pound and therefore the bill pray a account of the say Richard  Benthalls personal estate and to have the title deed relate to his real estate  deliver up and a reconveyance thereof to this bill mrs brown put in a plea and  answer and as to so much thereof as seek to impeach her title to the estate in  question or any account of the rend thereof she plead the say several deed  fine and non claim and as to so much of the bill as pray any account of  Richard Benthalls personal estate she plead his will and by her answer deny  all brown circumstance of fraud and imposition on the say Richard Benthall or  that it be his intention in case the intend marriage between they do not take  effect that she shall upon payment of the pound be consider as a trustee of  the estate in question for the say Richard Benthall and his heir on the that  November this plea be argue and overrule with regard to the real estate and  direct to stand for a answer as to the personal estate with liberty to except  save as to the account of the personal estate the say Elizabeth brown  afterward suffer two recovery of the estate in question and by two deed  execute by her the one date the d may and the other the that January the use  of those recovery be declare to herself in fee in march mrs brown make her  will and thereby devise the estate in question to her brother John brown and  his heir Chargeable with a legacy of pound to her sister mary brown and make  he executor and on the that April she die upon her death the appellant Ann  Rotheram and the say Elizabeth Langley bring their bill of revivor against the  say John brown and against Edward brown as the old brother and heir at law of  the say Elizabeth brown and against brown er p Ralph brown and mary brown as  claim sum of money out of the say estate to revive the suit and have the  benefit pray by their original bill and soon afterward they file a  supplemental bill against the same person state the recovery suffer by  Elizabeth brown after put in her plea and answer to the original bill and the  execution of the deed declare the use thereof and insist that no legal estate  pass by those recovery or if they do pass that it be only in trust for and  ought to be reconvey to they and the say Edward brown afterward die the  plaintiff file a bill of revivor against Ralph brown jun as his old son and  heir at law on the that June the cause be hear before the Lord chancellor  Hardwicke and on the that of the same month his lordship be please to decree  that the bill of the appellant Ann Rotheram and the say Elizabeth Langley so  far as it seek to set aside the conveyance or any of they under which the  respondent claim the estate in question or to have a reconveyance thereof on  the head of imposition want of consideration or mistake shall be dismiss  without cost but as to any other relief seek by the bill it be order that the  same shall be retain for a year and the plaintiff in the suit be to be at  liberty within that time to bring a ejectment and it be likewise order that  all the deed and write relate to the premise in question which be in the  custody for power of any of the party shall be produce before the master upon  oath on or before the last day of Michaelmas term then follow and any of the  party be to be at liberty to inspect the same and take copy thereof and in  case such ejectment shall be brown bring such of the deed and write as either  side shall give notice for be to be produce at the trial and on such trial the  defendant in the cause be not to insist on any encumbrance or satisfy term or  the statute of limitation and they be likewise to admit on such trial that the  several sum of pound pound and pound mention in the deed poll of the d  November be pay within month after the say Richard Benthalls death accord to  that deed to the end that the title may come proper in question and after the  trial any of the party be to be at liberty to apply to the court but in case  no such trial shall he have within the say time it be order that the bill  shall be whole dismiss without cost pursuant to this decree the respondent and  the person under who they claim produce all the deed in their custody or the  appellant inspection and the say Elizabeth Langley die soon afterward the  appellant Elizabeth bell together with John Bellher husband since decease and  the appellant John turner and his wife on the that December file their bill of  revivor to revive the suit but the appellant not think proper to bring any  ejectment suffer their bill to be absolute dismiss on the that July John brown  the devisee under the will of the say Elizabeth brown afterward die have make  his will date the that July and thereby devise the estate in question to the  respondent Ralph brown in tail with remainder to the say mary brown in tail  with remainder in fee to the respondent Edward brown and Ralph brown the young  the heir at law of the say Elizabeth brown have also die the respondent  Elizabeth brown the infant be his heir at law the appellant conceive the  decree to be erroneous appeal from it insist that no other consideration  appear on the face of the deed of October than the sum of pound which be by no  mean a adequate and valuable consideration for the absolute purchase of the  estate in question prove to be pound a year and worth pound to be sell and be  only encumber with a mortgage of pound and pound due on a statute merchant and  even this pound the only express consideration be so far from be pay or even  allow to Richard Benthall at the time of execute the conveyance that he on  that very day give Elizabeth brown a promissory note for the same sum Payable  on demand and there be no sufficient proof in the cause of any other  consideration and if there have no such proof ought to be admit as evidence  that these deed absolute divest Richard Benthall of all his right to the  estate and as soon as they be execute leave he destitute even of a maintenance  and under the precarious and unhappy situation of be dependent on Elizabeth  brown or in case of her death on her representative for a subsistence which  can certain never be his design or intention that if frame the deed in this  manner brown er p and so as to have this operation be the effect of brown  accident or mistake they ought in equity to be rectify but if it be not the  effect of mistake or accident it be a imposition upon Richard Benthall and  wherever deed be frame either through accident or design material and  substantial different from the real intent of any of the party a court of  equity ought to extend its aid the give relief in such case be one of the  chief branch of its proper and original jurisdiction on the other side it be  say that the appellant case seem to depend either upon a title at law derive  under the deed poll of the d November or upon a right to be relieve in equity  against the deed execute by Richard Benthall under which the respondent derive  a title but it be insist that the appellant have no legal title to the premise  because the appointment of the d November in favour of Richard Benthall be  either duly revoke by the deed of that march by virtue of the original power  reserve to Elizabeth brown in the deed of October or else the estate and  interest derive to Richard Benthall under that appointment be duly bar by the  fine and non claim and the recovery suffer by Elizabeth brown she have a legal  power to bar any interest or estate in remainder which lie behind the estate  tail and thereby to make herself tenant of the premise in feesimple that the  legal right to the premise be proper triable at law and the decree have give  the appellant liberty to bring a ejectment and have remove all impediment to a  trial of that right upon the merit of the case the appellant have a proper  opportunity of try their title at law if they think fit but have decline such  trial and suffer their bill to be whole dismiss they have no just reason  either to complain of the decree or to expect any further indulgence and as to  any right in equity to be relieve against the deed under which the respondent  claim it be contend that there be no just foundation for any of the objection  which have be make the first pretence set up for this purpose be that the deed  of October be leave to be prepare and be prepare by the direction or  management of Elizabeth brown or her brother or their agent and execute by Mr  Benthall without consult any person but such as be in their interest and be  obtain from he by unfair mean and influence but none of these allegation be  support by proof on the contrary it appear from the evidence that Mr Benthall  be not only a person of very good sense but have be breed to the law and be  conversant in business that he himself give the instruction to his own agent  who he usual employ in his affair that the whole transaction be his own  voluntary act begin carry on and complete with deliberation and perfect  knowledge of what he do and without the least ingredient of fraud or undue  influence whatsoever and that after the execution of these deed they be leave  in his custody brown the next pretence be that the deed be propose only as a  security for the pound and that Mr Benthall be to have the estate subject  thereto if the treaty of marriage do not take effect but if it do then the  deed be to be in the nature of a marriage settlement and that Mr Benthall  execute they in confidence that they be draw pursuant to such proposal and  agreement but there be no proof of any such proposal or agreement it be  contrary to the plain word and manifest meaning of the deed and there be no  provision by covenant or otherwise for a redemption of the premise on  repayment of the pound and though there be a account state and a note sign for  this sum yet that be do only to evidence the debt which be immediate discharge  by the conveyance the deed take no notice of any marriage but be form upon a  plan which can not answer either of these purpose nor do the circumstance or  proof in the cause show that the party intend the deed to have this particular  effect or operation but the whole be calculate to put the estate in mrs browns  power at all event still it be object that the pound be not a adequate  consideration for the purchase of the equity of redemption of this estate that  therefore the deed must be consider as a security only for that sum and can  never be intend to put the estate in mrs browns power at all event and that  the deed must have be so draw by mistake to this it be answer that the deed be  not find upon a strict purchase for a valuable consideration but be of a mix  nature partly find on consideration and partly voluntary proceed from  friendship and affection to mrs brown which be the joint motive of the  settlement that Mr Benthall brown er p mean and intend to settle this estate  upon her and to put it in her power at all event that he always understand he  have do so and as she have entire trust he with her whole fortune without any  security he may be thereby induce to settle and put his estate into her power  which she afterward own with proper gratitude by suffer he to receive the rend  as long as he live that his knowledge of have divest himself of all power over  the estate appear beyond contradiction by his frequent declare it to several  people and upon various occasion but particular about six month before his  death when upon a tenant apply to he for a new lease he declare it be out of  his power for he have settle it upon his cousin Betty brown and all the man in  England can not take it from her and upon further discourse he declare that  she may give it to her brother if she think fit and about three month  afterward she again declare that he have settle all his estate upon her that  all be too little and that if he have as much more she deserve it and shall  have it all that from these and several other circumstance prove in the cause  it be evident that Richard Benthall know he have settle his brown estate on  mrs brown and have put it out of his own power and intend so to do and as  there be not the least proof of any undue mean in obtain the deed that there  be no foundation for a court of equity to relieve the heir at law against they  accord after hear counsel on this appeal it be order and adjudge that the same  shall be dismiss and the decree therein complain of affirm jour vol xxvii p  brown er p dow er p dow report volume report of case upon appeal and writ of  error in the house of lord by p dow BarristeratLaw Vol I from Scotland