case colton against senhouse Trinity term car roll if a indenture be make  between a son seize of land by dissent from his father of the one part and his  mother and her second husband of the other part whereby the mother and her  husband alien and grant all the land of the wife jointure by her former  husband for the life of the wife and the son also covenant that if he shall  die without issue he then grant release and confirm the land to his mother  this be a covenant to stand seize by which a use be raise to the mother for it  be plain that the party intend the covenantee shall have the estate the court  will mould the word so as the intent of the party shall take effect SC lev SC  Pollexf SC Jones roll Abr Carth lev lev vent vern vezey cro James vezey will  Com dig covenant g Cowp ejectment special verdict find a indenture between the  son who be seize of the land in question by descent from his father of the one  part and his mother and her second husband of the other part whereby the  mother and her husband do release and confirm to the son the land for and  during the shower KB life of c and it be covenant and agree by and between  they and the son c that if he die without issue of his body then he grant and  give the same to his natural mothor and her heir for ever the son die without  issue the mother enter the heir make a lease to the plaintiff the question be  if any use be raise by this to the mother levinz for the plaintiff No use can  be grant out of a estate of which a man be not seize a a feme covert can  covenant nor can the fatherinlaw covenant because the one be not of the blood  and the other be under covert baron therefore it be not a use but only a  covenant or agreement bind they during their life and it shall afterward go to  the right heir and he urge the case of buckler v Symonds b a seize in fee  covenant with b in consideration of a marriage to he have between the son of a  and daughter of b that the say land shall from and immediate after the death  of a remain and be unto the say c in this case albeit the marriage take effect  yet no use arise by the covenant because there be no apt word he do not  covenant to stand seize but only that it shall remain and the case of Pitfeild  v pierce c a seize in fee do in consideration of the marriage of his son b to  e seal and deliver a deed poll to this effect be it know c that I a do give  and grant by these present unto my son b the say land after my decease to have  and to hold in witness whereof to this my deed of gift I have hereunto set my  hand c this not be execute by livery or enrolment the question be if it shall  pass by way of covenant to stand seize and hold it shall not because it do not  appear that be intend to oust himself of the land during his life for he grant  it to b after his death before the habendum so that he do not intend to make  himself bare tenant for life which be our case for the son say if he die  without issue then he give and grant to his mother c then it be move again in  the case of Pitfeild v pierce that it shall not alter the estate of the father  but that he shall be seize in fee during shower KB his life and his old son  shall have it by way of contingent use after his death but the court say that  will be hard to maintain than the former and therefore they give judgement as  afore that his intent be to convey at the commonlaw but they agree that if it  appear by a deed to be the intent of he that be seize of the land that it  shall pass a estate accord to the rule of law and say that this shall so pass  although that there be not formal word of covenant in it he urge further the  case of foster v foster d a   a more cro Elizabeth b roll Abr see also hob c  march page case and SC roll Abr d Hilary term car side lev keb ray finch Ch  Rep and cite in Scudamour v cross Mod shower KB er p in this court where the  mother give all her land to her son with a item it be covenant and grant by  and between the party that she shall enjoy it during her life and rule to be  only a agreement and not a covenant to stand seize here the word be if he die  then he give and grant I e if he shall die he will give and grant as it be  usual in common speak to say tomorrow be a feast I e will be a feast and it be  only a deed of article and covenant and design for no more the word themselves  will not vest a estate for estate must be guide by the law and its rule and so  be doctor and student e where it be hold that if the intent of the party be  not accord to the rule of the law it be void as in case of a lease for year to  a man and his heir the intent be void for it be the law must direct and govern  the estate there be also cite a resolution in chudleighs case f that no use  shall be execute by the statute of Henry c which be limit contrary to the  commonlaw for it appear by the preamble that the intent of the maker be to  restore the ancient commonlaw of the land and he cite Englefields case in  Popham g which you may peruse at large for it be much insist upon Mr Pollexf e  contra that here a estate arise by way of use the son be seize in fee by  dissent as the jury find it be by deed indent between he and his mother and  her second husband do covenant and agree to and with c that if it shall happen  that he shall die without issue of his body then he give and grant the land in  question to his mother and her heir for ever shower KB he urge that use before  the statute be of a equitable nature that they be not estate in the land but  only trust and confidence and not subject to the rule of law until they be  vest and raise but in raisin of they they be different from all manner of  estate at commonlaw and therefore they need not such set form of word to raise  they as other estate do at best they be themselves but a equitable interest or  right he also urge fox case a where a demise and grant be adjudge to amount to  a bargain and sale within the statute of use for to make a freehold or  inheritance pass by deed indent and enrol there needs not the precise word of  bargain and sale but word equivalent or tantamount be sufficient and so he  will have it here that a construction may be to raise a use though the word be  give and grant c for say he if a covenant to stand seize upon a valuable  consideration may be deem a bargain and sale it may e contra he further argue  that for the raise of a use here be word more significant than that of  covenant for covenant alone will never pass any estate in land but the word  grant may and cite a case of Scudamour v cross I and as to the case of  pitfield v pierce king which they so much rely upon of the other side he  answer that the same be never much argue for neither croak nor Jones mention  it in their report and it differ from the present case for that here be  nothing to make a tenant for life but all upon a contingency and no present  grant whereas Pitfields case be a present grant to commence after his death  and so he answer the grand objection of raise a freehold in going to be for  that say he may be by way of use upon a contingency use say he may be raise in  this manner as in Shelleys case l and the case of Woodliff v Drury m where  land be to the use of a wife that shall be and the feoff afterward marry it be  hold the wife shall take by that limitation though it be object that present  by the feoff the fee be in the husband by the possession execute to the use  shower KB which he have before the marriage and that use in going to be can  not rise upon such future act for then a use may rise out of a use but it be  there rule by all the court that though he be seize in fee in the mean time  yet by the marriage the new use do arise and vest there have be no Act in the  mean time to destroy the future use then it be not necessary e dr saint lib  cap f   g Poph h   I Trinity term car Mod vent king march roll Abr   see also  bro feoff to use roll Abr cro m mich term Elizabeth shower KB er p that there  be a intent apparent in the deed to raise use in the case of tebb v Popplewell  n and in the case of Scudamour v cross oh the word of covenant to stand seize  be not necessary and upon this case he most insist and in the present case be  no intention that appear to make any estate to pass at the commonlaw and it  may well bear a use it ought sure to work some way if possible all the case  cite on the other side do not show any reference or intention to conveyance by  the deed but here be express do grant the judge will not destroy a deed for  its informality or the ignorance of former time therefore he conclude a estate  be raise to the defendant there be a manifest intention that she shall have it  and word tantamount to a covenant to stand seize c and afterward in easter  term car judgement be give accord that the limitation to the mother amount to  a covenant to stand seize c and this judgement afterward affirm upon a writ of  error c Vid Poll see the case of Coryndon and his wife adjudge in the court of  common plea in easter term