case heart versus MIDDLEHURST July see grier v grier lr h l the bill be bring  by the daughter and only child of the first marriage of I m for a specific  performance of article previous thereto insist she ought to be tenant in tail  of the land therein mention issue in the article mean female as well as male  and consequent the plaintiff be entitle to have a settlement of these land in  tail and when the defendant the son of the second marriage come of age he must  convey to her see Mr Cox note to west v Erissey p W and the note to gore v  Nash ante atk by article of agreement bear date the that of September upon the  marriage of John Middlehurst with mary Bagley in consideration of a portion of  two hundred pound John Middlehurst covenant with mary father to convey the  land then in his possession to trustee in trust for John Middlehurst during  his life sans waste and afterward to the use of mary during so long as she  shall happen to live and after the determination of these estate then to the  issue note the word issue be omit in the register book probable by mistake the  word there be then to the use of the intend marriage c of this match in such  sort manner and form and subject to such charge for young child as John  Middlehurst shall hereafter by deed or will order bequeathe and appoint and  last it be hereby mutual agree by and between the party that all further  needful and necessary covenant proviso limitation and agreement whatsoever for  the further and better explain settle and assure of all the premise and estate  for the use aforesaid or such other as shall be agree on by all the party to  be more necessary shall be contain in the intend conveyance by a  settlement made in say to be in pursuance of article John middle atkins er p  burst settle the estate to himself for life to the wife for life to trustee to  preserve contingent remainder then to trustee for a term of year then to first  and every other son in tail the term to raise pound in the first place to pay  his debt and the remainder to be equal divide among the child of the marriage  in such proportion as John Middlehurst shall by deed in his lifetime or will  at his death appoint in John Middlehurst suffer a recovery and gain the fee of  this estate and by the recovery settle it to himself for atkins life remainder  to trustee to preserve contingent remainder remainder to they for year  remainder to his first and every other son in tail male the trust of the term  declare to be for young child and therein also be contain a power for John  Middlehurst to settle a rentcharge of pound per and on any wife he may  hereafter marry in the may follow he marry a second wife and by settlement on  that marriage recite the deed to lead the use of the recovery the second wife  have no notice either of the article in or settlement in and the very same  estate be limit to her and the issue of that marriage and the defendant  Middlehurst be the son of that marriage the bill be bring by the plaintiff the  daughter and only child of the first marriage for a specific performance of  the article and insist she ought to be tenant in tail of these land or if not  that the recovery let we in the charge in the article upon the land Mr  attorney general for the plaintiff cite the case of Hanbury versus Hanbury the  that of April before Lord Talbot to show the liberal construction of marriage  article in favour of the issue Mr Sambourne of the same side cite Roundhill  versus Brerely vern to show that a covenant to settle land though no  particular land be mention in the article will be a lie on the land whereof  the father be then seize Mr brown for the defendant first whether these  article have be reasonable carry into execution second whether the plaintiff  have a right to be relieve against the son of the second marriage who have  indisputable the legal estate in he or whether she ought not to be content  with a suitable provision out of this estate the father of the husband have no  knowledge of the first marriage and be tenant for life of the great part of  the estate and do not die till the article be of a very great latitude and  seem to intend to give as great a power to the husband over this estate as can  be that this be not to be consider as a strict agreement to settle it on the  father for life and if no son then on daughter atkins in tail but be intend  only to secure to the young child a reasonable provision out of the estate of  the father and to be answer by pecuniary portion one hundred and sixty pound  he have with his second wife p the son of the marriage if this be determine  against he will be undo for there be a mortgage for nine hundred pound and the  whole estate which pass by the recovery in be but eighty pound a year and only  twentyfive pound a year be settle by the article for the father of John  Middlehurst have at that time the power over the rest of the estate Mr  Wilbraham of the same side the mortgage be make in since the death of John  Middlehurst by his executor and trustee to pay his debt in Powell versus price  p wms there after a remainder to the heir male of the body of the husband by  any wife be a remainder to the heir of the body by the first wife and only a  daughter of that marriage in the settlement there be a provision for this  daughter and it be hold the recovery bar the entail to daughter he mention the  rule with regard to copyhold estate where if any heir at law be total  disinherit the court will not decree a provision make by the father for young  child where there be no surrender to the use of the will here the heir at law  will be total disinherit who have indisputable the legal right and for the  benefit too of a person who have a dormant equity only under article of which  the defendant mother have no notice at the time of the marriage Lord  chancellor in the settlement upon the recovery be comprise the rest of the  estate which come to John Middlehurst on the death of his father amount to  sixtyfive pound per annum more atkins er p the first question will be what be  the true and proper construction of the article second whether the article be  proper carry into execution by any subsequent settlement three if not whether  the plaintiff have a right to have these article carry into execution in the  extent pray by the bill atkins the plaintiff insist she be entitle to have the  whole estate settle for her benefit the defendant contend it be sufficient if  she have a reasonable provision make for her out of the estate and which have  be provide for by the father second settlement but I must take the article as  they be and the plain meaning of the word I be of opinion it be the intention  of the article the issue whether male or female shall have the whole of this  estate among they the father admit he receive six hundred pound with the wife  of the first marriage and therefore what he covenant to do be not  disproportionable to the fortLine what be the word of the article to convey  this estate to trustee to the use c and after the determination of those use  then to the issue of this match c vide the word what do issue of the marriage  mean issue female as well as male and therefore if it have go no far than to  the issue of the marriage and a bill have be bring for carry the article into  execution the settlement must have be to all the issue to the first and every  other son and for default of such issue to the daughter with proper remainder  follow one after another I have know several decree of this kind upon the word  issue of the marriage but then the other subsequent word in such sort manner  and form and subject to such charge for young child as John Middlehurst shall  hereafter by deed or will order bequeathe and appoint be rely on by the  defendant and it have be insist that this leaves a power in the father as to  the manner and quantity of interest the child shall take out of the estate I  agree it do as to the manner but not as to the interest to be sure the father  may have divide the estate among the child a different part among the son if  lie please and another part by way of provision for the daughter but still the  whole of the estate must have be divide though the proportion be leave to the  father atkins but it have be say if there be a sole daughter of the first  marriage only he may limit the estate to the son of the second marriage upon  leave a charge for the benefit of the daughter of the first marriage the case  which have be cite do by no mean come up to the present for upon the original  construction of the article where the thing be open to the court it be too  much to say that at a old and only child shall be consider as a young by the  court another objection have be start that this construction be contrary to  the usual course of marriage settlement for it be not customary to limit to  the daughter without a intervene limitation to the father in tail so as to put  it in his power to postpone daughter of a first to son of a second marriage I  allow this to be the most prudent way and the article in the case of west  versus Erisey in p wms be in this manner and decree to be carry into strict  settlement but there be a settlement of the whole estate here there be no  intervene limitation to the father in tail and pound per and at most be the  estate comprise in the article the second question be whether the article be  proper carry into execution by any subsequent settlement I be of opinion they  have not be proper carry into execution there be two settlement one of the  that of April there be no colour to say this be in pursuance of the article  the next settlement be date the that of march upon which a common recovery be  suffer after the death of the first wife most clear this be no performance of  the article for there be no certain provision for daughter though it  comprehend the whole of his estate after this he intermarry with a second wife  in may I be of opinion there be no reasonable performance of article in either  of these settlement atkins er p the three question be whether the plaintiff  have a right to have these article carry into execution in the extent pray by  the bill I be of opinion the plaintiff have a right take it as it stand  original if the construction I have put atkins upon these article be right  then to be sure this be the original right for the plaintiff to have a  specific performance from the general nature of the thing some bar have be set  up against it the first thing insist on be that John Middlehurst the father of  the plaintiff be only a tenant in tail at the time of the article and that if  he have continue so this estate will have go over to the son as heir in tail  but then the answer be John Middlehurst suffer a common recovery and the  consequence of that be it let in a prior charge and encumbrance which he have  think fit to lie upon it vide cruise Rec though the counsel for the defendant  have attempt to make a difference between a legal and equitable charge upon a  estate I think there be none in the first place what be the reason the  recovery by tenant in tail let we in his legal charge because the tenant in  tail be consider as owner of the estate some book say common recovery be  impliedly except out of the statute de gift common recovery deliver the estate  from the fetter and trammel impose upon it by the statute de gift and that be  the opinion in Lord derwentwater case hill Geo modern case in law and equity  part p vol of new Abr of the law all the use declare by this conveyance be  derive out of the estate of tenant in tail and as it be his old estate it be  reasonable it shall let in this charge in Goddard versus complin Charles Cas  it be declare that if tenant in tail confess a judgement c and suffer a  recovery to any collateral purpose that recovery shall enure to make good all  his precedent act and encumbrance vide Goodright they Terrel v mead burr have  a conusee the of a judgement any estate in the land nun at all neither legal  estate nor legal lie and yet when a common recovery be suffer it let we in  this judgement atkins it will be a most absurd thing to say a common recovery  suffer by a tenant in tail shall let in his lease shall let in a prior  judgement and yet not let in a charge under marriagearticle and therefore  there be no difference between a legal and equitable estate another objection  be that the defendant ought to be consider as a purchaser for a valuable  consideration without notice of these article and therefore ought not to be  affect by it that undoubted the mother be so and if she have be live can not  have be hurt and that the recovery and settlement in be in contemplation of  the second marriage and extend further that this marriage be have and portion  pay upon the credit of this settlement and that her son will be entitle to the  use under this settlement take it by step if the mother the wife of the second  marriage have be before the court I do admit she ought to have be consider as  a purchaser for a valuable consideration and it can be doubt where a power be  execute under a voluntary settlement if that power be afterward execute for a  valuable consideration without notice to the person who take under that power  then she shall have the benefit of it Warrick v Warrick ante atk but the  second wife be dead and her jointure be determine next as to the son the only  proof be that during the courtship with the last wife she desire the witness  to advice her about the matterof the marriage who swear he do not believe she  have notice of the article this do not at all prove that there be any  agreement for make the settlement in or that it be in contemplation of the  marriage neither be it consistent with the use of the deed itself then the  whole of the defence be that this marriage be have on the credit of this  settlement I think so far the evidence do go that the settlement in be produce  to the friend of the wife and that this be the ground of the marriage then the  atkins er p question will be whether that will make the son a purchaser for a  valuable consideration the case of Fitzgerald and Lord Falconbridge in fitzg  Rep be a case in point nay a strong case for it be say by the court there  whoever will make himself a purchaser for a valuable consideration must take  bycontract and under a actual conveyance see Brandlyn v Ord ante atk vol gore  v Nash ante atk atkins there be no contract to support this consideration and  the issue of the marriage be to take their chance consider how it operate upon  the present case there be no recital here in the deed for settle a jointure on  the wife or that the wife portion be in consideration of the estate settle  upon the son of the marriage it will be extreme dangerous to say that the show  a settlement to party before marriage and their rely upon the credit of it  will make the issue of that marriage purchaser for a valuable consideration  but that be quite different from the doctrine of the court in Fitzgerald and  Lord Falconbridge which be determine by the house of lord and the court must  take thing as they find they and consequent the plaintiff be entitle to have a  settlement of the estate in tail and must hold and enjoy till the defendant  come of age and then he must convey and therefore his Lord he p decree the  plaintiff be entitle to a specific performance of the article in lib a fol