case gervas Scrope et Ux  Appellants joseph OFFLEY Respondent that march Mews  dig seven a man make his son by the first wife agree to a provision for a  second wife and the issue of that marriage this provision be in the son own  wrong and he be at this time ignorant of his right the agreement be a fraud  upon he and he shall not be hold to a performance of it ground and rudiment of  law and equity p can Eq ab can Cornelius clarke esquire be seize in fee of  several manor and land in Norton and elsewhere in Derbyshire of about pound a  year by his will date the saint of June devise the same to his nephew Robert  Offley the respondent grandfather for life remainder to Robert his old son for  life and to his first and other son in tail male remainder to Stephen his  second son the respondent father for life remainder to his first and other son  in tail male remainder to the three and other son of the say Robert Offley the  nephew in tail male remainder to the testator right heir with power for the  say Robert Offley the young and Stephen as the premise shall respective come  to they by write under their hand and seal to appoint any part thereof not  exceed a moiety as a jointure for any wife for her life the testator die  without revoke or alter his will and soon afterward Robert Offley the son die  without issue Robert the nephew be in possession a treaty of marriage be  propose between the say Stephen then his old son and urith the respondent late  mother one of the four daughter and coheir of Samuel smith esquire who fortune  be pound whereof about pound a year be in land and in consequence of this  treaty by indenture tripartite of the that of may between the say Robert and  Stephen Offley of the first part William man guardian of the say urith of the  second part and the say urith of the three part in consideration of the intend  marriage and of the say Uriths fortune it be agree that her real estate when  she come of age shall be convey to the say Stephen Offley and his heir subject  to such charge and upon such condition as therein mention and the say Robert  Offley in consideration thereof and of the marriage covenant for himself and  his heir with man that he will within one year after the marriage secure to  Stephen and urith pound a year for their maintenance during the say Robert  life and also settle upon they for their life one moiety of Cornelius clarke  estate of near pound a year to take effect upon his death which moiety shall  be in full of Uriths dower and that the same shall be settle on all the son of  Stephen and urith successive in tail male and it be agree between all the  party that the other moiety of clarke estate shall also be settle after the  death of Robert Offley and of clarke widow upon the say Stephen for life and  to his several son in tail male successive and that in such conveyance there  shall be trustee to preserve remainder as counsel shall advice and a power as  shall be likewise advice brown for raise pound out of Uriths real estate for  the young child portion and for raise pound yearly for their maintenance in  the mean time provide that if urith when of age shall refuse to convey her  real estate to Stephen and his heir subject to the charge aforesaid then the  limitation to her for her jointure shall cease and it be further agree that  all much other clause proviso and agreement as counsel shall brown er p  reasonable advice shall be insert in such conveyance to be make as aforesaid  as be usual in marriage settlement and which shall be conduce to the  settlement of the say estate accord to the true intent and meaning of the say  indenture this deed be execute by all the party and soon afterward the  marriage take effect by indenture of lease and release date the that and that  of may the say Robert and Stephen Offley in consideration of the marriage then  have and express declare it to be in performance of the say marriage agreement  do joint convey to man and one Samuel Crome and their heir all the say  Cornelius clarke estate and all the right title interest use property claim  and demand of they or either of they of in or to the same to the use as to  part of Stephen for life then to urith for life then to Robert their new bear  son and the heir male of his body with remainder to the second and other son  of the say Stephen and urith in tail male as to other part to the use of  Robert the grandfather for life then to Stephen for life then to urith for  life in full of her jointure with the like remainder to Robert their infant  son in tail male and to their second and other son in tail male successive and  as to the residue to Robert the grandfather for life then to Stephen for life  remainder to Robert the infant son in tail male remainder to the second and  other son of Stephen and urith in tail male successive provide that if urith  when she come of age shall refuse to convey her real estate to Stephen and his  heir subject to such charge and upon such condition as be mention in the say  marriage agreement then the limitation to her for life shall be void and the  say Robert and Stephen Offley covenant that they or one of they have full  power to settle the premise as aforesaid and that the same shall remain and  continue to and for the use and trust aforesaid free from all act estate title  charge and encumbrance make commit or do or then after to be make commit or do  by they or either of they No notice be take either in the say marriage  agreement or in the settlement make pursuant to it of the say Cornelius clarke  will or the power therein contain for make a jointure or that Robert the  grandfather and Stephen be only tenant for life of the say estate but they  agree to convey and settle the same as if they or one of they have be seize  thereof in feesimple and covenant for enjoyment accord by indenture date the  that of may and by fine the say Stephen and urith she be of age settle all her  real estate to the use of Stephen and his heir brown Robert the first son of  Stephen and urith die before urith and in she die leave the respondent her  then old son and Stephen her only young child live in the say Stephen the  respondent father marry the appellant Ann who fortune be about pound but of  which he have no more than pound to his own use in Robert Offley the father of  Stephen die and by lease and release date the that and that of January the say  Stephen settle a estate of pound a year of his own purchase and also pound a  year part of the say Uriths estate and pound S a year leasehold estate for  year and also pound of the appellant Ann fortune in trust for himself and her  for life then to all her child by he in equal share and by another deed date  the same that of January he limit to the appellant Ann about pound a year of  Cornelius clarke estate as a jointure by deed date the that of September  Stephen confirm the appellant Ann jointure and add thereto as much more of the  say clarke estate as make the whole about pound a year which be not quite a  moiety of it the respondent come of age in December and soon after be send for  home from his study be then and at the time of his join in the deed and  recovery after mention entire ignorant of the say urith his mother marriage  agreement and settlement and all the other deed and write above state and of  what provision his father have make or can make for the appellant Ann or her  child and his father have then four daughter by her he and the appellant Ann  solicit and importune the respondent to charge pound on Cornelius brown er p  clarke estate for portion for those daughter allege that his father have  nothing else to give they and propose if the respondent will consent that his  father will at present allow he pound a year for his maintenance and at his  death leave he the furniture of the capital house but threaten if he refuse to  keep he at home and allow he nothing under these circumstance the respondent  be draw in to execute certain deed which be prepare by his father direction  and bear date the that and that of June and afterward to join in a recovery  but the respondent be not allow to advice upon the deed and be assure and  depend upon it that they be for no other purpose than as aforesaid there be  nothing more propose or ask of he but he afterward find that he and his  brother Stephen be thereby make only tenant for life successive of clarke  estate with remainder in strict entail to their respective issue male  remainder to Stephen the respondent father and his heir and that a proviso be  throw in at the end of the deed that nothing shall in any wise impeach or make  void the jointure theretofore make by Stephen the father to the appellant Ann  for life in case she shall happen to survive he by virtue of a power give he  by clarke will Stephen the father by deed date the that and that of July  confirm the deed of the that and that of January brown the say Stephen by his  will date the d of August devise all the say Uriths copyhold land and a close  call bullock Storth and a house call chantry to the appellant Ann and her four  daughter and give the say Cornelius clarke whole estate in case of failure of  issue male of the respondent and his brother Stephen to the say four daughter  and the heir of their body and he also give they all his personal estate  amount to pound and make the appellant Ann his executrix and on the saint of  October he die soon after which the appellant Ann bring a ejectment for the  land limit to her in jointure and obtain a verdict the respondent some time  after his father death and not before discover and get into his hand his say  mother marriage agreement and settlement and then find what large provision  have be make for the appellant Ann and her daughter he be advice and on the  that of February do bring his bill in chancery against the appellant Ann and  her daughter for a specific performance of his mother marriage agreement and  to restrain the appellant Ann from proceed at law on the ejectment she have  bring for her pretend jointure and that he may be quiet in the possession of  all Cornelius clarke estate and for a discovery of his father real and  personal estate and that the indenture of the that of June may be set aside as  have be unfair obtain the appellant Ann while a widow for herself and as  guardian for her say daughter put in a answer and after her marriage she and  the appellant gervas put in another answer and thereby insist on all the say  deed and provision make for her and her child and say that on her marriage the  say Stephen Offley tell her he can not in his father lifetime provide for her  and their child in the manner he intend but verbal promise that on his father  death when the whole of clarke estate will come to he he will make her a  handsome estate and sufficient provide for her child on the that of February  this cause be hear before the Lord chancellor king when his lordship declare  that the respondent by virtue of the say marriage agreement and of the say  settlement make pursuant to it be entitle to hold the say clarke estate  discharge of the jointure claim thereout by the appellant Ann and decree  accord and that the injunction shall be perpetual and as to the rest of the  respondent bill his lordship think fit to dismiss the same from this decree  the appellant appeal and to obviate the principal objection that though this  be a good appointment of a jointure in pursuance of a power subsist at law yet  the execution of that power be contrary to the covenant contain in the article  and settlement make in pursuance thereof it ought not to have be execute to  the prejudice of the use therein contain it be say I will n fazakerly that in  the article of Robert Offley the father only covenant and not Stephen the son  who have the power of appoint brown er p the jointure and therefore Stephen  the son brown be not bind thereby but satisfaction if any ought to be make to  the respondent out of the asset of Robert the father that the settlement of  may be make after marriage and not be make in pursuance of any covenant enter  into by Stephen the son be as to he a voluntary conveyance that at the time of  execute it Stephen the son be not actual seize of Cornelius clarke estate his  father Robert be tenant for life and then live and the word of the proviso be  from and after such time as the same shall so descend he shall have power to  declare limit and appoint etcetera that suppose the appointment to urith to be  good yet Stephen have power after her death to limit the same moiety or the  other moiety to any other wife the word of the proviso be for any wife or wife  etcetera this be so there be nothing to hinder Stephen from appoint a jointure  to the appellant Ann but the covenant in the deed of that the premise shall  remain and continue to the use aforesaid acquit and discharge or otherwise  save harmless from all former and other estate title charge and encumbrance  whatsoever have make do or suffer or to be have make do or suffer by they or  their heir now the word to be have which be the only word insist on by the  respondent be the common word use in all covenant against encumbrance and be  put in as word of course by the drawer of the conveyance without any special  direction from the party and it be apprehend that the execution of a  collateral power can never be mean by those general word but only mortgage  judgement or other encumbrance direct charge the estate and the rather because  there do not appear to be any notice take in the conveyance of Stephen power  of limit a jointure to any number of wife one after another and if it be the  intention of the party to bar that power they will have insert a special  covenant against it nor be it easy to be presume that Stephen will upon his  marriage with one wife put himself out of the capacity of marry another in  case of her death it be therefore hope that the decree will be reverse on the  other side it be contend d rider I Verney that the appellant Ann pretend  jointure be mere voluntary make long after her marriage not pursuant to any  article before marriage and make by Stephen in breach and fraud of his express  covenant which be well know and disclose to the appellant Ann at the time  beside it be plain that she do not rely upon that provision for on the very  same day it be execute other deed be also execute for settle pound of her own  fortune and all Stephen own real estate and also all that remain unsold by he  of Uriths real estate be altogether about pound per and upon herself for life  and afterward upon her daughter that the respondent be a purchaser for a  valuable consideration under his mother marriage agreement and settlement the  plain import whereof and of his father and grandfather covenant for enjoyment  be that no estate shall be create or intervene between the death of the brown  respondent father and mother and his enjoy Cornelius clarke estate and  therefore and under the circumstance of threat imposition and concealment  before state the respondent ought not to be prejudice by the deed and recovery  which he have be so draw in to execute and especial as the pretend jointure be  not thereby ratify or confirm 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 p