atkins case henry stapilton a infant by Ann his mother plaintiff fillip  stapilton and other defendant August the d SC wh t l c that ed see Stockley v  Stockley v b and fane v fane lr Eq Philip stapilton tenant of the premise in  question for year if he so long live remainder to his first and other son in  tail remainder to his right heir have two son Henry and Philip they by lease  and release of the that and that September in order to settle and perpetuate  the manor c in the name and blood of the Stapiltons and for make provision for  his son and for prevent dispute that may possible arise between they or any  other person claim a interest in the estate and for bar all estate tail  release and confirm to two trustee all those manor to hold oh they and their  heir as to part to the use of Philip the father his heir and assign for ever  and as to another part to the use of the father for life to Henry the son for  life remainder to trustee for preserve c remainder to his first and every  other son in tail male remainder to Philip the son atkins er p for life with  like remainder to the daughter of Henry in tail remainder to the daughter of  Philip the son in tail remainder to the right heir of Philip the father and as  to the other part to the use of Philip the father for life remainder to Philip  the son for life c by a deed date on the saint of August Philip stapilton be  tenant of the premise in question for year if he so long live remainder to  trustee to preserve contingent remainder remainder to his first and other son  in tail male remainder to his right heir atkins Philip have two son Henry and  Philip they by deed of lease and release the that and that of September recite  that for settle and perpetuate all manor c in the name and blood of the  Stapiltons and for make provision for his two son c for prevent dispute and  controversy that may possible arise between the say two son or any other  person claim a interest in all or any of the estate therein after mention and  for bar all estate tail and for answer all and every the purpose and purpose  of the party thereto and for and in consideration of the sum of S release and  confirm to Thompson and Fairfax all those manor d c to have and to hold to  they their heir and assign to the use as to part of Philip the father heir and  assign for ever and as to another part to the use of Philip the father life  remainder to Henry the son for life remainder to trustee to preserve  contingent remainder remainder to his first and every other son in tail male  remainder to Philip the son for life remainder to trustee to preserve  contingent remainder remainder to his first and every other son in tail male  remainder to daughter of Henry in tail remainder to the daughter of Philip the  son in tail remainder to the right heir of Philip the father and as to the  remain part to the use of Philip the father for life with like limitation in  the first place to Philip the son and his issue and then to Henry and his  issue remainder in fee to the father there be covenant to suffer a recovery  within month and likewise for far assurance N B to this deed the heir of the  survive trustee in the deed in be not a party but by deed if lease and release  date the that and that of September to which the heir of the survive trustee  of the deed of be a party the father and two son make Thompson and Fairfax  tenant to the praecipe in order to suffer a recovery for the purpose mention  in the former deed of the h and that of September before any recovery suffer  Henry die leave issue the plaintiff afterward by lease and release the that  and that of Apr to which the heir of the survive trustee of the deed of be a  party Philip the father and Philip the son covenant to suffer a recovery in  which Thompson and Fairfax be to be tenant to the precipice to the use as to  part of Philip the father his heir and assign and as to the other part to the  use of Philip the father for life remainder to Philip the son in fee atkins in  Trinity term a recovery be suffer in which be the same tenant to the praecipe  the same demandant and the same vouchees except Henry who be dead as be  covenant to be by the first deed it be likewise suffer within twelve month  after the first deed the father Philip stapilton be dead the plaintiff as son  and heir of Henry bring his bill to establish his title to the premise in  question and for the whole estate as tenant in tail under the old settlement  and to be let into possession and for a account of rend receive by Philip  stapilton the son due since the death of the plaintiff grandfather and to have  the same apply for the plaintiff benefit during his infancy and for a  injunction to restrain the defendant from receive any more rend the defendant  Philip the son by his answer confess the several deed before mention but say  Henry be a bastard and that by virtue of the deed of and of the recovery he be  entitle to the whole estate in question upon a issue direct Henry be find  illegitimate and the cause be now hear upon the equity reserve when the  counsel for the plaintiff wave the claim to the whole estate insist upon these  two point saint that the recovery suffer in Trinity term shall enure to the  use of the deed of the that and that of September and not to the use of the  deed in dly suppose it do not yet that the deed of be such a agreement as this  court will carry into execution atkins er p as to the first point it be say  that the use when once declare can be alter unless all the party entitle to  the use join in the new declaration and Henry do not join in the deed of  tenant in tail man part with his estate and it shall be good against he though  not against his issue for tenant in tail be not aid by the statute of  Westminster the d but only his issue therefore by the deed of the use be  execute by the statute of h l Henry gain a base fee which be not avoidable by  Philip during his life and as his issue bar by the subsequent recovery they  will not be able to avoid it and consequent Henry estate which be before  defeasible be make indefeasible by the recovery salk far S c cro James sir W  Jones S c atkins if tenant in tail confess a judgement or mortgage the land  and afterward suffer a recovery to a collateral purpose that recoery shall  enure to make good all his precedent act and encumbrance Ch Cas Lord  chancellor mention a case in Lord king time where father tenant in tail  remainder to himself in fee contract debt on special his son after his death  levy a fine let in his father creditor see the case of Symonds v Cudmore salk  show Mod Carthew and earl of Shelburne v Bidduph bro par can bro p c and ed  and if a recovery suffer for another purpose will substantiate any prior act  of the tenant in tail much more in this case this recovery will substantiate  the first deed where there be all the party who covenant by that deed as to  the second point this can be consider as a voluntary agreement for Henry  legitimacy be then doubIful and if he have prove legitimate Philip will have  come into this court to have the agreement execute and Henry will have be bind  by it this court have decree the performance of agreement like this find u  mistake as in the case of frank v frank Ch Cas and Cann v Cann will for the  defendant it be argue as to the first point that Henry be dead before the  recovery be suffer the intent of the party in the first deed can not be pursue  for the plaintiff suppose he legitimate claim paramount his father and the  deed of therefore as the recovery can not substantiate the first deed suppose  he legitimate it shall not substantiate it now he be find illegitimate the  plaintiff upon the death of his father have not any use vest in he for the  intent of the party be that the use shall arise out of the recovery the end  recite can not become at without a recovery and where the intent of the party  be that the use shall pass by fine or recovery nothing will pass by the deed  that be intend only to declare the use the fine and recovery all make but one  conveyance cro James Ro Rep lev vent lev Cromwell case   b cro James as to the  second point take it as a agreement this court will not decree a performance  of it for suppose Henry have be find legitimate this court will not have  decree a performance of it against the plaintiff so that in regard to the  defendant it must be consider as a voluntary agreement into which he be draw  without any valuable consideration and the covenant for further assurance will  be void as the deed itself to which it be annex be void and so it be determine  in the case of Furzaker v Robinson Prec in Chan Lord chancellor the plaintiff  in this case be entitle to hay e a decree there be a sufficient foundation for  Philip the father and Henry and Philip his two son to execute the lease and  release of the that and that of September it be to save the honour of the  father and his family and be a reasonable agreement and therefore if it be  possible for a court of equity to decree a performance of it it ought to be do  atkins it will be very hard for the defendant on his side to endeavour to set  asideathis agreement and the effect of this deed consider the state and  situation of the family at the time of make the agreement Philip have these  child grow up have very considerable real estate both his son then own as  legitimate their father and mother have live together as husband and wife for  many year and at the time of this agreement be so there be a foresight in the  father and mother that such a dispute between their two son may hereafter  arise to their dishonour and likewise that of the family the foundation of  this agreement the illegitimacy of the old son Henry have now be determine by  trial and it be find that Henry be a bastard yet both the son be of the same  blood of the father equal though not so in the notion of the law if the elder  son shall be find illegitimate as he now be the father know he atkins er p be  direct to try whether Henry the father be legitimate and find he be not and  now the plaintiff insist upon have the benefit of this agreement whereby he be  only entitle to a part this be the bill of a infant he may have a decree upon  any matter arise upon the state of his case though he have not particular  mention and insist upon it and pray it by his bill but it may be otherwise in  the case of a adult person see post vol Grimes v French upon this case there  arise two general question first whether the plaintiff have any estate in law  by virtue of any of the conveyance or by recovery second if he have no estate  at law or only a defeasible one whether he be entitle to have the benefit of  this agreement and to have it carry into execution here atkins first whether  the lease and release of the that and that of September will amount to a good  declaration of the use of the recovery notwithstanding the subsequent deed of  April second if not whether the recovery of Trinity term have bar estate tail  will make good any estate which pass by the lease and release of the that and  that of September as to the first whether the lease and release be a good  declaration of the use of the recovery I be strong incline to think it will  amount to a good declaration this question depend on the construction of law  and the authority of case upon the declaration of use it be true where there  be a agreement to suffer a recovery and use be declare if the recovery be  after suffer though it vary in point of time from the recovery covenated to be  suffer yet if there be no subsequent declaration of use the recovery will  enure to the use so declare see Havergil and hare roll Abr and before the  statute of fraud if the deed declare the use have not be pursue a parole  declaration of use will have be let in but if there be a deed declare the use  and the common recovery be suffer accord that will before the statute exclude  a parole declaration of new use countess of Rutland casem   a b Downmans case    b but even now there may be a subsequent declaration of use but that  declaration must be in write and such a new declaration of use depend upon the  agreement of the party therefore though it be say at the bar that the  declaration of use be in the power of the tenant in tail and that he may  declare new use I take that not to be law for such subsequent declaration must  be by all the party concern in interest and in the case of the countess of  Rutland   it be not lie down there that the tenant in tail may declare new use  but say while it be directory only new use may be declare and the meaning of  that be that as the use must arise out of the agreement of the party the party  may change the use see second resolution in Jones v morley salk S c comb but  that must be do by the mutual consent of all the party concern in interest and  in that case it be a mutual agreement of all party see durnford v lane bro  Chan can and in the case of Jones v Morley salk there be a variance as to the  time of suffer the recovery from the deed declare the use and there hold that  a declaration of use be equal good whether by deed or not if in write but in  the present case the second agreement not be between all the party concern in  interest ought not to control the first declaration and especial as this  recovery be suffer within the time prescribe by the first deed and between the  same demandant and tenant atkins er p atkins the consideration for suffer the  recovery be good both in law and equity and there be no case to warrant I to  say the first agreement be not good and bind or that the tenant in tail can by  his own agreement afterward change the use but if it be doubIful whether the  recovery suffer in shall enure to the use declare by the deed of I be of  opinion the recovery will operate to make good those estate which pass by the  deed of but to this two objection have be make first that the use must be  govern by and operate accord to the intention of the party therefore the  subsequent recovery be suffer to other use those use will take place second if  any use do pass by the deed in yet this recovery will not make those use good  because the subsequent recovery be suffer to particular use declare by the  deed of as to the first objection I be of opinion that a use do pass by the  deed of and accord to the intention of the party it be certain true that  accord to the statute of use the general doctrine be that the use shall be  execute accord to the intention of the party but both the court of law and  equity consider what be the general and final intent of the party in this case  their intention be that the estate shall pass and wherever a court of law or  equity find that the general and substantial intent of the party be that the  estate shall pass they will construe deed in support of that intention  different from the formal nature of those deed themselves as a feoff to serve  the intention of the party shall operate as a covenant to stand seize see  cross v Scudamour vent the intent here be that the estate in point of law  shall pass by the deed of and that the use declare by that deed shall vest in  the mean time till the recovery suffer this be a answer to the objection arise  from the statute of use but there be another question what estate pass by the  deed of it be a defeasible estate to serve the use of that deed and so be the  resolution in Macheli v clark in far salk Com S C that tenant in tail may  convey a base fee and estate defeasible by the entry of the issue the next  question be whether the recovery suffer in do enure to make good and render  indefeasible those base estate create by the deed of and I be of opinion they  be make good the objection to this be that the recovery be suffer in pursuance  of the deed in wherein there be new use limit but the only use which make any  difference in that deed be to Philip the son and his heir so there be nobody  concern in the question but Philip and his heir it have be argue by defendant  counsel that if the first atkins declaration of use be in general to prevail  purchaser of estate though they have a recovery for strengthen their title  with a declaration of the use of the recovery to themselves and their heir can  be safe for the vendor may defeat such declaration by a precedent one to  different use but in such case I think a recovery will not enure to make good  such former declaration of use but only the use of the purchase it be admit  that if tenant in tail confess a judgement or a statute or enter into a bind  and afterward suffer a recovery to bar the estate tail it let we in the  precedent judgement c and it be as clear if a tenant in tail make a lease not  warrant by the statute of the Henry if he suffer a recovery that let we in the  lease and make it good see capel case   a Chomleys case   b beck on they  Hawkins v Welsh will there be so many case of this kind that it be not  necessary for I to mention they this case be different from those that turn  only upon the point of the effect of a mere declaration of use for a mere  declaration of use subsist only upon the agreement of the party and in such  case where the agreement have be change by mutual assent of all party there a  recovery shall enure to make good such last agreement or declaration but if  the estate be vest notwithstanding such declaration of use yet the recovery  have always be hold to make good such defeasible estate see Goodright v mead  burr Cheney v hall Amb moody v moody Amb for the prior lease charge or estate  make by tenant in tail be only defeasible by the issue by virtue of the  statute de gift which be make to protect the issue against the alienation of  the tenant in tail therefore the issue will avoid such lease c atkins er p but  not the tenant in tail himself but when by the recovery he have gain to  himself a fee all the reason for avoid a estate make by tenant in tail be go  for the issue be bar by the recovery the reason why the issue may avoid a  charge make by tenant in tail be upon account of the protection of the issue  and his estate under the statute de gift and of the privity of the estate tail  but when the privity be go the reason cease and to this purpose be the case of  croker v Kelsey sir W Jones in the case of Lord Derwentwater Mod case in law  and equity d part the question be whether a papist tenant in tail suffer a  recovery and declare the use to himself in fee gain a new estate within the  that and that of will or be in of the old use and it be hold the that of Geo  by four judge out of five appoint delegate to determine appeal from the  commissioner of forfeit estate that he be in of the old use and take it for  law that a tenant in tail suffer a recovery be in of the old use and that the  estate be discharge of the statute de gift vide Martin ex they Tregonwell v  Strachan stram Wilson S c bro par can term Rep S c roe they crow v Baldwere  term Rep and see as in some measure connect with this point the case of hill v  Broughton bro Charles can and therefore I be of opinion that the recovery have  make good this defeasible estate create by the deed of it have be object that  if the plaintiff have any title his remedy atkins be at law but I think it be  more proper here he be a infant and have come recent into this court nor do I  think this case depend entire upon the point of law for I be of opinion that  the plaintiff be entitle to have a execution of the agreement as a good and  bind agreement in this court the question be whether there be any valuable  consideration on all side for enter into this agreement if so then there be a  sufficient ground for come here but a mere volunteer be not entitle to come  here for a execution of a agreement but here be a proper consideration as  appear in the recital of the deed of neither be it the common case of a  bastard for the law of England do allow of some privilege to a bastard eigne  and their parent be not punishable by the canon law for antenuptial  fornication in the case of Cann v Cann p W S c it be lie down by lord  Macclesfield that a agreement enter into upon a supposition of a right or of a  doubIful right though it after come out that the right be on the other side  shall be bind and the right shall not prevail against the agreement of the  party for the right must always be on one side or the other and therefore the  compromise of a doubIful right be a sufficient foundation of a agreement see  Chesterfield v Jansen post pullen v ready post vol Corry v Corry Ves coal v  Gibson ibidem Ballard v crow bro Charles Rep another objection have be make to  this agreement that the benefit on Henry and Philip side be not mutual and  equal during both their life the benefit and obligation be mutual and Henry  will have be equal compellable to suffer a recovery with Philip but it be say  that a alteration as to their mutual benefit have happen by the death of Henry  and it be say that if Henry have be legitimate the plaintiff will not have be  compellable to suffer a recovery because the issue in tail be not compellable  to perform the covenant of his ancestor the tenant in tail see Mr Savills case  cite Ves Ves Hayward v Stillingfleet post but here the chance be at first  equal and it be hard to say that the act of God shall hinder the agreement  from be carry into execution the chance be equal who die first Henry or Philip  if Henry have be legitimate and Philip have die in Henry life leave child I be  of opinion Philip son will have be entitle to have come against Henry for a  execution of the agreement and therefore the chance be at first equal on both  side and we be not to consider how the event have happen another objection  have be take that the father make use of his coercive power over Philip to  force he into this agreement and it be say equity do not favour agreement make  by compulsion but this court always consider the reasonableness of the  agreement see blundel v Barker p W Corry v Corry Ves Kinchant v Kinchant bro  Charles can beside here be no proof of compulsion by the father if there be  any compulsion it seem rather to have be make atkins use of against Henry who  be then esteem his old son and consider the consequence of set asideathis  agreement a court of equity will be glad to lie hold of any just ground to  carry it into execution and to establish the peace of a family atkins er p his  lordship therefore declare that the plaintiff be entitle to the land and  premise limit in remainder to the first son of Henry stapilton his father by  the deed of the that and that of September accord to the use therein and to  the benefit of the covenant in those deed and decree the defendant Philip to  come to a account for the rend of the say premise and declare that Philip be  entitle to hold the land limit by the deed of the that and that of September  to Philip the elder for life with a remainder to the defendant for life  against the plaintiff and his heir and that the defendant shall make further  assurance to the plaintiff of his part and the plaintiff the like assurance to  the defendant of his part and no cost on either side Reg lib b fol