and under and subject to such powers, provisoes, conditions and agreements as are hereinafter mentioned," it was witnessed, that, as well for barring, docking and extinguishing,all estates tail and all reversions and remainders thereupon expectant or depending of and in the said manors, messuages, &c., as for settling, conveying and assuring the same to and for the several uses, intents and purposes thereinafter mentioned, of and concerning the same, he, the said P. Dykes, did thereby, for himself, his heirs, executors and administrators, and for the said Susan his wife, covenant, and the said Susan did thereby agree to and with the said T. Rede, his heirs and assigns, in manner following (that is to say), that they, the said P. Dykes and Susan his wife, would as of the then present Trinity term, or before the end of twelve months from the date thereof, acknowledge and levy in due form of law unto the said T. Rede and his heirs, two or more fines sur conusance de droit come ceo, &c. of and in the manors and messuages comprised in their marriage settlement; and it was thereby declared that the fines so to be levied of the manors, messuages, &c., should operate, enure, and be to and for the several uses, intents and purposes thereinafter mentioned (that was to say), to the use of such person or persons, and for such estate or estates, use or uses, intents and purposes, as P. Dykes and Susan his wife should, during their joint lives, by any deed, &c., appoint, and in default of such appointment to the use of P. Dykes and his assigns for life; with remainder to the use of Kerrick and Sheriffe for the term of 1,000 years, upon the trusts thereinafter declared; and from and after the determination of the said term, to the use of Susan Dykes and her assigns for her life, with remainder to the use of the heirs and assigns of P. Dykes for ever. And it was thereby declared that the term of 1,000 years was limited to Kerrick and Sheriffe upon trust, that they, and the survivor of them, and the executors, administrators or assigns of such survivor, should, within three months after the death of P. Dykes, by demise, sale or mortgage of all or any part of the said manors, messuages, &c., raise and levy the sum of 2,000l., and also all such further sum or sums of money as P. Dykes should, at any time during his life, actually recover or receive in right of Susan his wife, under or by virtue of the will of L. Fuller, and pay the same to the said S. Dykes, for her own absolute use and benefit, in case she should survive P. Dykes; but in case Susan should die in the lifetime of P. Dykes, then to such person or persons as Susan should by will direct and appoint; and in default of appointment pay the same to such person as would have been entitled, as the next-ofkin of S. Dykes, to her personal estate, if she had died intestate and unmarried. And P. Dykes did, by the same deed, covenant with Rede, his heirs and assigns, that he, P. Dykes and Susan his wife, would surrender the copyholds included in the marriage settlement to the same uses. In pursuance of the covenant a fine was duly levied, of all the freehold estates comprised in the last deed, but no surrender or assurance of the copyhold premises was ever made. Kerrick had long since died, leaving T. Sheriffe the elder surviving him. No joint appointment of the premises, in pursuance of the power for that purpose in the last-mentioned deed contained, was ever made by P. Dykes and Susan his wife. In March 1821, S. Dykes died without ever having had any issue, and without having made, by will, any disposition of the said sum of 2,000l., or any part thereof, and left P. Dykes, her husband, and John Farr and Thomas Farr, her brothers, and Jarrett Dashwood, Charles Dashwood and John Dashwood, the children of her deceased sister, her sole next-of-kin, her surviving,. John Farr, the son, died in July 1824, and by his will and codicil, dated respectively the 1st and 9th of May 1824, appointed the plaintiff, John Lee Farr and Hannah Farr, since deceased, and George Lee, since deceased, his executrix and executors, and after certain devises and bequests therein mentioned, not including the sum of 2,000l., or any part thereof, he gave and bequeathed to his executrix and executors all the rest and residue of his personal estate and effects whatever and wheresoever, and all his right and interest therein, in trust, to get in the same, and apply the same, as in the said will is mentioned; and the will was duly proved by the executrix and executors. G. Lee died in May 1828, and H. Farr died in October 1839. On the 1st of August 1838, P. Dykes died, and by his will, dated the 22nd of June 1826, he gave and devised, and in pursuance of every power enabling him, appointed all his real estate whatsoever and wheresoever, which was of freehold or copyhold tenure, with the appurtenances, unto and to the use of J. L. Farr, George W. B. Bohun and Richard Bohun, whom he appointed his executors, their heirs and assigns, upon trust, to sell the same; and the testator also empowered his trustees to sell all his copyhold estates; and the testator then bequeathed all his personal estate to his trustees and executors, in trust, to sell, and he directed his trustees to invest the proceeds of the sale of his real and personal estate in government securities, and to pay the dividends to his brother Edward H. Dykes for his life, and after his decease, to Mary, his said brother's wife, for her life, durante viduitate, and after her decease, in trust, for the children of his said brother. By a codicil to his will, dated the 28th of October 1829, P. Dykes revoked the devise and bequest made by his will to J. L. Farr. By another codicil, dated the 23rd of March 1833, P. Dykes revoked the devise and bequest made to G. W. B. Bohun, and devised and bequeathed all the said trust premises to Thomas Sheriffe the younger, jointly with the said R. Bohun, their heirs, executors, administrators and assigns, upon the trusts in his said will contained. The will and codicils were duly proved by R. Bohun and T. Sheriffe the younger, in the Prerogative Court of Canterbury. P. Dykes left T. Sheriffe the younger, R. Bohun, E. H. Dykes and Mary his wife, and Philip, Edward, James, Alexander and Anne their children, him surviving. On the 2nd of November 1839, J. L. Farr filed his bill against T. Sheriffe the elder, T. Sheriffe the younger, and R. Bohun, T. Farr, J. Dashwood, C. Dashwood, and J. Dashwood, E. H. Dykes and Mary his wife, and the children of E. H. Dykes, claiming to be entitled to the sum of 2,000l. and the other sums secured by the deed of 1779, and to that portion of the sums secured by the deed of 1798, to which he was entitled as one of the next-of-kin of S.Dykes. The bill prayed an account of all and every the sum and sums of money secured by the deeds of 1779 and 1798, or in respect of the charges thereby respectively created; and that the trusts of the said deeds might be carried into effect; and that all such sums as should be found to be due and owing in respect of the sums of 2,000l. and other sums charged on the said premises might be raised and paid to the parties entitled thereto, with interest from the times at which such sums ought to have been raised and paid, and for an injunction and a receiver. The parties severed in their defence to this bill as follows: Thomas Sheriffe the elder answered separately. John Dashwood, one of the next-of-kin of Susan, answered separately. Thomas Farr, J. Dashwood and C. Dashwood, other three of the next-of-kin, joined in their answer. Thomas Sheriffe the younger and R. Bohun joined in their answer; and Edward H. Dykes and Mary his wife, and their children, joined in their answer. Mr. Anderdon, Mr. Romilly and Mr. Hardy, for the plaintiff. Mr. Temple and Mr. Spurrier, for the devisees under the will of Dykes, contended that, upon the construction of the deeds and the obvious intention of the parties, one sum must be held to be a substitution for the other-Moore v. Magrath (1), and that, whether upon the construction or reformation of the deed 1 Sugd. Vendor and Purchaser, 258. 205. Pusey v. Desbouvrie, 3 P. Wms. 321. Evans v. Llewellin, 1 Cox, 333. Turner v. Turner, 2 Rep. in Chanc. 154. Bingham v. Bingham, 1 Ves. sen. 126. Stockley v. Stockley, 1 Ves. & Bea. 23; and especially where the mistake had been mutual Phipson v. Turner, 9 Sim. 227. Moseley v. Motteux, 10 Mee. & Wels. 533; s. c. 12 Law J. Rep. (N.S.) Exch. 136. Grieveson v. Kirsopp, 5 Beav. 283. Ayliffe v. Murray, 2 Atk. 58; and that the plaintiff' ought to be put to his election, under which deed he would take; that the sums to be raised under both deeds were identical, and the limitations in substance the same, so that the wife, in respect (1) Cowp. 9. of the second sum, was a volunteer, and her next-of-kin could not stand in a better condition Bridger v. Rice, 1 Jac. & W. 74. 6 Law J. Rep. (..) Chanc. 267. Naylor v. Winch, 1 Sim. & Stu. 555; s. c. 2 Law J. Rep. Chanc. 132. M'Carthy v. Decaix, 2 Russ. & M. 614. Ramsden v. Hylton, 2 Ves. sen. 305. Lindo v. Lindo, 1 Beav. 496; s. c. 8 Law J. Rep. (N.S.) Chanc. 284. Lester v. Garland, 5 Sim. 205; s. c. 1 Law J. Rep. (N.s.) Chanc. 185. Heatley v. Thomas, 15 Ves. 596. As to the principle of election, they cited Green v. Green, 19 Ves. 665. Mr. K. Parker, Mr. Rolt, Mr. C. P. Cooper, Mr. Prior and Mr. Craig, for other parties. 66 June 27.-WIGRAM, V.C., (after stating the deeds of 1779 and 1798).—Susan Dykes, in point of fact was tenant in tail under the settlement, and there being no issue (supposing nothing had been done to destroy the settlement), the charge of 2,000l., created in favour of John Farr the elder, took effect. The deed of 1798 contains this recital, ،، Whereas there being no issue of the marriage," &c. (vide supra), "it is witnessed that as well for barring and docking and extinguishing all estates tail, &c. (vide supra), P. Dykes covenants to levy a fine to enure to the uses therein mentioned." Now that deed of covenant having been entered into, declaring the uses of the fine, that fine was levied. Susan died in the lifetime of her husband, in March 1821, having made no will. P. Dykes made a will, devising the property in question, without any reference to the mode in which he acquired it. Now in this state of things, the present suit was instituted; and the character which the plaintiff sustains is that of the personal representative of John Farr, the father of Susan, and as such, entitled to what I will call the first sum of 2,0007. mentioned in the settlement of 1779, and as one of the next-of-kin of Susan, entitled to a portion of the second sum of 2,000l., under the deed of 1798. P. Dykes having become entitled in fee simple to the estates, subject to the first sum of 2,000l. (that sum, as it is admitted, not having been barred by the fine), he devised his estate in favour of the Dykes, who are parties to the record; and the plaintiff in the cause seeks to recover the first sum of 2,000l. as part of the estate of John Farr, under the limitations of the deed of 1779; and he also seeks on behalf of himself and the defendants, who are next-of-kin with him, to recover the second sum of 2,000l., under the limitations in the deed of covenant of 1798, and of the fine levied in pursuance thereof. The parties who oppose one of the claims of the plaintiff, are those who claim as the devisees of P. Dykes. It was admitted at the bar that the fine was inoperative to bar the plaintiff's demand for the first sum of 2,000l. as the representative of John Farr the father, and that such demand could not be resisted in this or any other suit; and the only question argued before me was, whether the second sum of 2,000l. should also be raised in addition to the first. In order to try this question, I shall first suppose that the persons entitled to the second sum are altogether different persons from those entitled to the first sum; and that this is a suit by the next-of-kin of Susan, filling no other character, to recover the disputed sum of 2,000. This, in my opinion, is the only proper way to try the question; for if a bill had been filed to recover the first sum of 2,000l. only, it has been admitted that no defence could have been sustained against that demand; and the next-of-kin of Susan would not in that character have been necessary parties to such a suit. I consider, therefore, the case in the first instance, as if the sum of 2,000l., charged by the deed of 1779, had been paid, and as if this was a suit to recover the second sum of 2,000l. only, the personal representatives of John Farr, the father, not being in fact interested in that question. The argument against the claim has proceeded upon this, that the intention of the parties to the deed of 1798, upon the face of that deed, was to bar the first sum, and to substitute the second sum in its stead; and that, inasmuch as the charge of the first sum has, by the mistake of the parties, not been effectually barred, the second sum intended to be substituted for it ought not to be raised; and upon the analogous case of wills, in which, if a party recites an intention to destroy one set of devises, and to substitute another for it, if the clause is inoperative for the purpose of doing the one, it is held to be inoperative, in many cases, for the purpose of creating the second charge. I observe, first, that although there is a little difference in the mode of describing the charge, under the deed of 1779 and the deed of 1798, I shall assume them throughout, for the purpose of the present question, to have been the same. Now that the intention of the parties to the deed of 1798 was such as the argument for the devisees of P. Dykes supposes, cannot, in my opinion, admit of a reasonable doubt. But the real question which I have to consider is, whether, notwithstanding that apparent intention, I can refuse to raise a second sum; and this, in my mind, is a question of much greater difficulty. I have no suit or other proceeding before me, seeking to impeach or avoid the deed of 1798, on the ground of mistake or otherwise. The parties now resisting that claim, make no case by their answer against the deed, depending upon circumstances extrinsic of it. The argument for avoiding the effect of the deed as to the second sum, rests wholly upon the mistake of the parties apparent upon the face of the deed of 1798. In that deed the intention is recited, which I have before read, an intention, not only to defeat and destroy the uses, estates and provisions of the deed of 1779, but also to limit, settle and assure the manors, &c. to the uses, intents and purposes described in the deed of 1798; and then the deed witnesses that, as well for barring, extinguishing and destroying all estates tail, and all reversions and remainders expectant and dependent thereon, the parties propose to levy a fine, which, I understand, all parties admit was inoperative for that purpose. The mistake of the parties is therefore apparent undoubtedly upon the face of the deed; and it is that mistake which, in truth, has occasioned the whole difficulty. Now, among the provisions in the marriage settlement of 1779, expectant on the determination of the estate tail referred to in the deed of 1798, is the first sum of 2,000l., and it has been, as I have already observed, admitted that the fine proposed to be levied would not defeat that charge; and upon the face of the deed of 1798 it was apparent that the parties erroneously supposed that the fine would have that effect. The parties therefore resisting the claim have the full benefit of the observations which arise upon the face of the deed; but they have nothing more: and unless those observations shew the deed to be altogether void, the argument cannot succeed without some other proceeding being taken for the purpose of avoiding it. The cases referred to, in support of the argument for the devisees of P. Dykes, appear to be divisible under three heads: first, where the Court has refused to enforce executory agreements; the second, those cases in which a very strong and unequivocal expression has been controuled by the context, from which the Court has collected that the intention was different from that which the expression imported; the third, those cases in which the deeds clearly expressing what the parties had intended, or in some cases expressing some difficulty, the Court, upon the ground of mistake, or on the ground that the parties entered into the deed in ignorance of their rights, or with a misconception as to their rights, has reformed the instrument, and taken away its legal effect. Now, it appeared to me, both during the argument and since, that these first cases have no application to this, except as they establish that this Court will relieve against mistakes; they do not otherwise apply specifically, for this deed of covenant is not executory in any sense of the word. The legal estate is created, and by means of the term; the equitable interests being trusts declared upon the trust fund, by means of the fine in the trustees, those trustees are bound to execute them, and the equitable interests are, in no sense of the word, executory. The second class of cases does not apply, because in those cases all that the Court has done has been to say it will construe an instrument, the expressions of which are ambiguous, according to the intention to be collected from the instrument itself; and, no doubt, however ambiguous the expression may be, if the Court can, from the instrument, collect the intention, then the Court may do it. The third class of cases does not appear to apply, because here the intention was actually what the parties expressed, and expressed with the utmost clearness; but the intention has failed, because the parties have been ill advised as to the mode of giving effect to that intention but that mistake, fortunately for the parties, appears on the instrument itself. Two questions then arise: one, whether that is a reason for avoiding the deed; and second, if it be, whether the deed can be avoided on the proceedings now before me. It is to be observed, that the limitations and provisions in the deed of 1798 are materially different from those in the deed of 1779; and the husband and wife both lived for more than twenty years after the deed of 1798 was executed. It is impossible to deny, in theory at least, that events might have occurred after the execution of the deed of 1798, during the life of the wife, which would have made the limitations in the second deed less favourable to the wife, and more favourable to the husband, than were the limitations in the first deed; and the husband, who survived the wife seventeen or eighteen years, made no complaint in his lifetime as to the mistake, which is now relied upon for avoiding the effect of the second deed. Whether that arose from his having still supposed the fine to have. barred the first charge of 2,000l., or from any other cause which would entitle those who claim under P. Dykes to avoid the deed of 1798, if it could be avoided after the death of Mrs. Dykes and the time which has since elapsed, is a point on which I express no opinion. But as I am not prepared to hold that the deed of 1798 was absolutely void in equity, and had no effect from the beginning, and was not merely voidable, and therefore capable of confirmation, I think I cannot now hold that the deed is void without some further inquiry or proceedings, in which the parties claiming the 2,000l. may have an opportunity of sustaining, by way of defence, the deed in question. Now, the case of Cholmondeley v. Clinton (2), I refer particularly to the passages in pp. 93, 101 and 102, shews, I think, the clear opinion of Lord Eldon to be according to the general and undoubted rule of the Court, that if a deed, which is merely voidable, is to be avoided on the ground of any mistake, that must be done by bill, and not merely by way of defence. It is (2) 4 Bli. 3. otherwise where a deed can be shewn to be void in law or in equity upon the face of it; and the reason is obvious, because subsequent matters may have had the effect of confirming it; and therefore the parties, whose rights are sought to be affected, are entitled to an opportunity in the way of defence by shewing in what way it can be sustained. I shall now consider the second point which was made at the bar, which was this: -The plaintiff, who claims the first sum of 2,000l., is one of the next-of-kin of Susan; and, therefore, supposing that both charges ought not be raised, he is, in truth, claiming a sum to which he is not entitled as well as a sum to which he is entitled; and I was referred to the common rule-that he who would have equity must do equity; and it was said that, therefore, the second deed was a bar to his making the claim, and the Court might fasten on his claim for the 2,000l., and refuse its aid to give him that sum, if he refused to do that which was equitable. I have often had occasion to observe, that I conceive that the argument as to that rule is very often misapplied in cases of this sort. It takes for granted the whole question, because the rule does not mean, that he must do what a particular Judge would impose upon him; the Judge is bound to ascertain what the rule of equity is; and if there is nothing in the rule of equity upon these proceedings to disentitle the next-of-kin to claim the sum, the mere accident that the party happens to be the personal representative of J. Farr does not appear to me to make any difference. If the claim could be enforced by the next-ofkin, then the estate is subject to the charge, the objection not applying to them; and it might have been avoided by a little management, in the administration being granted to somebody else. Then, there is a question which has embarrassed me much more than the question of law I have just been considering. According to my view of the case, there ought to have been a bill filed to impeach that deed, on the ground of mistake. The Court, however, no doubt, may, if it think fit, put the case in a train for inquiry before the Master,-a course which it very often takes, and where substantially the proceedings are conducted, and there is precisely the same mode of |