case savage versus tailor there may be a degree of unfairness in obtain  article for the purchase of a estate for which this court will not set they  aside but will refuse its aid to carry they into execution and if the party  who obtain such article have be in possession and make last improvement lie  shall be allow for they on consent to deliver up the article and account for  the profit otherwise if he go to law and fail there William tailor make his  will bear date may and thereby devise to trustee and their heir all his  message land c in Cherrington in come Gloucester to the use of mary his wife  for life remainder to trustee for five hundred year to raise pound for her as  she shall appoint or in default thereof to her executor remainder to the use  of the testator nephew John tailor in tail remainder to William tailor son of  the testator brother Humphrey in fee and make mary his wife sole executrix and  residuary legatee and by a codicil October give two cottage to two servant in  fee and S per and to the poor of Cherrington before the make this will the  testator have a fit of the palsy which impair his health but do not affect his  understanding in August he have a second fit of the palsy which deprive he of  his speech and great impair his understanding January after a treaty between  one savage and the testator which be case tempt Talbot chief manage by the  testator wife and one Nathaniel Thomas her relation article be enter into by  the testator and his wife of the one part and savage of the other part for  sale of the testator estate in Cherrington to savage in fee for pound and a  guinea in July the testator die and about November mary the testator widow die  have make her will and the plaintiff savage sole executor and residuary  legatee John the nephew the first devisee of the testator die soon after the  testator wife leave one son name John tailor the plaintiff savage bring his  bill in the lifetime of mary but not long before her death against her and  against John tailor the testator old brother and heir at law against John the  nephew and William the nephew a infant the two devisees in the will and also  against the trustee and the devisees in the codicil for a specific performance  of the article and to have conveyance accord John tailor the heir at law die  in have put in his answer and leave John his grandson and heir at law a second  bill be bring by William tailor the infant devisee entitle in fee under the  will to establish the will and to be relieve against the article it be charge  in his bill that the defendant savage be a purchaser of the estate comprise in  the article with notice of the settlement in savage admit by his answer though  before or at the time of the execution of the article he have not actual  notice of the settlement that he have hear it talk that part of William tailor  be estate have be settle on the plaintiff grandfather marriage but that it be  also report that the say settle estate be fair sell to the say William tailor  for a valuable consideration and further admit that after the execution of the  say article several deed relate to the say estate be deliver to he among which  be indenture of lease and release date the that and that day of may purport to  be a settlement make upon the marriage of John tailor the young the plaintiff  grandfather and make between John tailor the elder and John tailor the young  his son and heir of the first part Hannah whiting of the second part and John  whiting and Thomas tailor of the three part in consideration of a marriage  agree to he have between the say John tailor the young and Hannah whiting and  of pound portion pay to the say John tailor the young the say John tailor the  elder and John tailor the young do grant c all their estate in Cherrington to  the say John whiting and John tailor their heir and assign to the use of the  say John tailor the young for year without impeachment of waste remainder to  John whiting and Thomas tailor and their heir for the life of the say John  tailor the young to support contingent remainder remainder to Hannah whiting  for life for her jointure remainder to the heir of the say John tailor the  young with diverse remainder over remainder to the right heir of the say John  tailor for ever that by lease and release hear date respective the that and  that day of march and make between the say John tailor and his wife the  plaintiff grandfather and grandmother of the one part and William tailor of  the other part the say John tailor and his wife in consideration of pound do  grant release and confirm all or most of the premise comprise in the say  settlement to the use of the say William tailor his heir and assign for ever  in which be a covenant for quiet enjoyment and further assurance and by  indenture hear date the that of march and make between the say John tailor the  young and his wife of the one part and the say John tailor the elder and the  say William tailor another of the son of the say John tailor the elder of the  other part in consideration of pound pay by the say John tailor the elder and  William tailor to the say John tailor the young the say John tailor the young  and his wife covenant to levy a fine before the then next easter term which be  levy accord of the say land comprise in the say settlement the use whereof be  declare to be to the use of the say John tailor the elder and William tailor  their heir and assign for ever and the say defendant submit whether the say  plaintiff right and title to the say premise be not bar by the say fine Reg la  b fol and a three bill be bring by John tailor a infant grandson and heir at  law of John against savage to discover a settlement make and to have the same  deliver up to he under which he claim a moiety of the estate comprise in the  article of purchase and against William tailor the infant dispute the will  claim the other moiety as heir at law John tailor great grandfather of the  infant John have issue four son John case tempt Talbot er p William Thomas and  Burgundy John the grandfather have issue John who marry and die in the  lifetime of his father leave John the great grandson the plaintiff in the  three bill may John tailor the great grandfather and John his soil in  consideration of a marriage to he have between John the son and Hannah whiting  convey the estate in question to trustee to the use of John the son for  ninetynine year if he shall so long live remainder to trustee to preserve  contingent case tempt Talbot remainder during his life remainder to Hannah his  wife for her jointure remainder to the heir of his body in special tail  remainder to the heir of his body in tail general remainder to the right heir  of John the great grandfather march John the grandfather and Hannah his wife  in consideration of pound pay by John the great grandfather and the testator  William covenant to levy a fine sur conusance de law come Ceo c to they with  warranty easter term of will and mary a fine be levy between John tailor sen  and William the testator complainant and John tailor and Hannah his wife  deforceants easter term Geo William tailor the testator levy a fine but no  deed lead the use thereof appear Lord chancellor state the three bill and the  design of they and add to this effect the first question be with regard to the  article under which the plaintiff claim whether he be entitle to have the  benefit of they which depend on two consideration whether the article be such  as a court of equity will set aside and if the court will not whether the  plaintiff shall have its assistance by decree a specific performance of they  it be certain this court in case of article have a discretionary power to  carry they into execution or not and if it appear they be unfair obtain though  not to such a degree as to set they aside yet this court will not order a  performance but will leave the plaintiff to his remedy at law and upon the  whole matter I be clear of opinion this court ought not in this case to aid  the plaintiff but if upon the prospect of have the article perform the  plaintiff have improve the estate it be reasonable he shall have a allowance  for last improvement provide he be content to deliver up the article and to  account for the profit otherwise if he go on at law he must not expect it case  tempt Talbot the next question be as to the title upon the settlement in  whereby the remainder under which John claim be bar in point of law by the  first fine the use of which be declare by the deed of march and in that fine  there be a warranty which be contend to be collateral and to bar the right of  John by descend upon he and undoubted the warranty be collateral to the title  of John who claim by purchase and not from the person who make the warranty  and as this be before the stat Q whether cap how hard and unreasonable soever  it may be there be no room for a court of equity which can alter the law to  interpose by which stat all collateral warranties by any ancestor who have no  estate or inheritance in possession be render void against his heir but to  this two answer have be give either of which seem sufficient saint that this  warranty descend on a infant and therefore be no bar to he d that suppose it  to work a wrong and to displace and divest the estate then it be a warranty  commence by seize and so commence by a tortuous act the law do not allow such  effect as if it be not attend with that circumstance for collateral warranties  be ground on this presumption that no one will bind the estate of his heir  without leave he a satisfaction but when he who make the warranty do a  tortuous act it seem that presumption cease then the next question to be  consider be whether the fine and nonclaim by the stat h cap have bar this  contingent remainder if it be consider as a fine levy by tenant for ninetynine  year determinable on his death it be not a bar but a averment may be take that  part Finis nil to have and it be a forfeiture of his estate if the party over  will take advantage of it otherwise it be a nullity and will not take away the  entry of the trustee when their right take place it be say this case differ  from the common case of a fine levy by tenant for year for here the wife join  in the fine who have a estate for life and if that have be a freehold proper  so call then it may have a great effect than a fine levy by tenant for year  but in this case tempt Talbot case that freehold lie behind the limitation to  trustee to preserve contingent remainder and then it be hard to say the fine  shall operate as to displace the precedent estate for life limit to the  trustee but suppose this fine do displace the estate and shall be consider in  the same way as a fine levy by tenant for life in possession the consequence  will be that the trustee may enter immediate or within five year after the  determination of the estate for life case tempt Talbot er p but then it be say  that though a right of entry in the trustee be sufficient to preserve  contingent remainder yet the right of entry which the trustee have be quite go  in this case by the death of John who be tenant for ninetynine year if he  shall live so long because his estate and the estate of the trustee determine  eoden instant but that be not so certain for the estate of the trustee may  subsist after the estate of John determine if he outlive the ninetynine year  which the law suppose may happen for then the trustee may enter because their  estate be for his life so they have a possibility to enter after the estate of  John be determine and during his life and though that do not take place yet  their right be not clear go and extinguish and therefore it may be consider  whether that possibility of entry within five year after the determination of  ninetynine year be not sufficient to support the contingent remainder I shall  think court of law shall go a great way to support such remainder which can  not be destroy without this practice I have almost say iniquity but this be  proper a legal question and not determinable here and the same thing may be  say with regard to the other fine levy afterward and far also that it be not  certain that it include these land now in question thus far be clear that the  plaintiff in the three bill have a right to have the deed of and to be strong  quantum to be strong to be able there be another point very considerable in  this case upon a supposition that the contingent remainder be bar in point of  law if there be tenant for life remainder over to some other person so as to  be in contingency if case tempt Talbot the tenant for life make a feoff or  levy a fine without trustee to preserve the contingent remainder in point of  law they be bar but it be a most barbarous thing to rob person unborn of their  inheritance and to give it to one who have no colour of title yet hard and  unjust as it be I do not remember this court have ever interfere so far as to  direct a conveyance to he in remainder so pie v George p will in the case of  Mansell and Mansell there be trustee to preserve contingent remainder who be  draw in to destroy they and this court consider the matter as a breach of  trust and follow the land in the hand of a purchaser with notice this be a  kind of middle case for here be no actual breach of trust by any act do but if  the contingent remainder be bar it be by their neglect to perform the trust  and that in the single instance for which they be appoint trustee that be to  bring action and make entry and it may deserve consideration how far one who  have notice shall avail himself by this neglect of the trustee but I will not  enter into a case of this consequence unnecessary but will reserve a liberty  of consider it when it come back to the court for far direction after the  trial it be decree that upon savage submit to give up the article to be cancel  his bill so far as it pray a performance of they shall be dismiss and that he  shall account for the rend and profit of the estate by he receive and shall be  allow for his last improvement that a ejectment shall be bring to try the  right of the whole estate both of that in settlement and that out of  settlement and no term to be set up and in this ejectment John to be lessor of  the plaintiff and William defendant that the deed of shall be deliver upto  John and William to have a copy of it at his own charge and that the other  deed and write shall be bring before the master and that William shall admit  himself in possession and that after trial the party shall resort back for far  direction case tempt Talbot er p case tempt Talbot de term S MICHEALIS geo two  in curian porter