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the jointure, and therefore Stephen the son [280] was not bound thereby; but satisfaction, if any, ought to be made to the respondent out of the assets of Robert the father. That the settlement of May 1701, was made after marriage, and not being made in pursuance of any covenant entered into by Stephen the son, was, as to him, a voluntary conveyance. That at the time of executing it, Stephen the son was not actually seised of Cornelius Clarke's estate, his father Robert being tenant for life, and then living; and the words of the proviso were, from and after such time, as the same shall so descend, he shall have power to declare, limit, and appoint, etc. That supposing the appointment to Urith to be good, yet Stephen had power, after her death, to limit the same moiety, or the other moiety, to any other wife, the words of the proviso being, for any wife or wives, etc. This being so, there was nothing to hinder Stephen from appointing a jointure to the appellant Ann, but the covenant in the deed of 1701, "that the premises should remain and continue to the uses aforesaid, acquitted and discharged, or otherwise saved harmless from all former and other estates, titles, charges, and incumbrances whatsoever, had made, done, or suffered, or to be had, made, done, or suffered by them, or their heirs." Now the words to be, had, which are the only words insisted on by the respondent, are the common words used in all covenants against incumbrances, and are put in as words of course by the drawer of the conveyance, without any special direction from the parties. And it was apprehended, that the execution of a collateral power could never be meant by those general words, but only mortgages, judgments, or other incumbrances, directly charging the estate; and the rather, because there did not appear to be any notice taken in the conveyance, of Stephen's power of limiting a jointure to any number of wives one after another; and if it was the intention of the parties to bar that power, they would have inserted a special covenant against it. Nor was it easily to be presumed, that Stephen would, upon his marriage with one wife, put himself out of the capacity of marrying another in case of her death. It was therefore hoped, that the decree would be reversed.

On the other side it was contended (D. Ryder, J. Verney), that the appellant Ann's pretended jointure was merely voluntary, made long after her marriage, not pursuant to any articles before marriage, and made by Stephen in breach and fraud of his express covenant, which was well known and disclosed to the appellant Ann at the time. Besides, it was plain that she did not rely upon that provision; for on the very same day it was executed, other deeds were also executed for settling £1000 of her own fortune, and all Stephen's own real estate, and also all that remained unsold by him of Urith's real estate, being altogether about £120 per ann. upon herself, for life, and afterwards upon her daughters. That the respondent was a purchaser for a valuable consideration, under his mother's marriage agreement and settlement, the plain import whereof, and of his father and grandfather's covenants for enjoyment was, that no estate should be created, or intervene between the death of the re-[281]-spondent's father and mother, and his enjoying Cornelius Clarke's estate. And, therefore, and under the circumstances of threats, imposition and concealment before stated, the respondent ought not to be prejudiced by the deeds and recovery which he had been so drawn in to execute; and especially, as the pretended jointure was not thereby ratified or confirmed.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree therein complained of, affirmed. (Jour. vol. 24. p. 626.)

Sir Thomas Worsop, Knt. having married Elizabeth, the aunt of Richard, Lord