will not be sufficient, unless coupled
with a similar waiver of the assignor's
right of suit against the debtor; Whar-
ton v. Walker ; Cuxon v. Cliadley.
It is, however, obvious both on prin-
ciple and authority, that all that is
necessary to sustain any promise, is a
sufficient consideration moving from
the promisee; Peate v. Dicken, 1
Cr. M. & R. 422; and this rule holds
good, whether the promise be for the
payment of a debt previously due to
a third person, or relates wholly to a
new and distinct obligation. When-
ever, then, the assignment of a debt
is in consideration of money paid, or
of a right of action forborne or extin-
guished, in reliance upon a cotempo-
raneous or antecedent promise of pay-
ment given by the debtor, the assignee
will be entitled to enforce the promise
by action ; Fenner v. Meares, 2 W.
Bl. 1268; Hodges v. Eastman, 12
Vermont, 358 ; Morse v. Bellows, 7
New Hampshire, 549 ; 2 American
Leading Cases, 185, 4th ed.

The law has been held the same
way in some of the American cases,
and the right of the assignee to en-
force a promise by the debtor, treated
as dependent on the existence of a new
consideration, either in the shape of
the extinction of an antecedent right
of action against the assignor, or of
the expenditure of money in the pur-
chase of the debt ; Grover v. Sims, 5
Blackford ; 498 ; Esling v. Zantzinger



3S0



COMPROMISE. — SEPARATE MAINTENANCE.



1 Harris, 50 ; Warren v. Wheeler, 8
Shepley, 484.

But there are other cases which
proceed on a different doctrine, and
hold that the equitable obligation
•which grows out of the assignment
of a debt to make payment to the as-
signee, (ante, 376,) although not suf-
ficient in itself to sustain an action,
will become so when clothed with an
express promise on the part of the
debtor. Traces of this doctrine may
be found in the English authorities ;
Israel v. Douglas, 1 H. Bl. 239 ; and
it has been authoritatively established
in most of the states of this country;
Steward v. Eden, 2 Caines, 150 ;
Compton v. Jones, 4 Cowen, 13 ;
Ford v. Adams, 2 Barbour, S. C.
349 ; Greer v. Archer, lb. 420 j
Crockery. Whitney, 10 Mass. 316;
Mown/ v. Todd, 12 Id. 218 ; Wilson
v. Hill, 3 Metcalf, 66 ; Bourne v.
Cabot, lb. 305 ; Jackman v. Bowker,
4 Id. ; Tiernan v. Jackson, 5 Peters,
580; Moore v. Wright, 1 Vermont,
97; Hodges v. Eastman, 12 Id. 358 ;



Hills v. Pierce, 18 Id. 444; Smith
v. Berry, 6 Shepley, 322 ; Gordon v.
Downey, 1 Gill, 41 ; Thompson v.
Emory, 7 Foster, 269; Clark v.
Thompson, 2 Rhode Island, 246 ; 2
American Leading Cases, 185, 4th
ed. Hence, a draft drawn on a par-
ticular fund, or payable out of the
amount due on a particular debt or
account, followed and ratified by an
acceptance, will constitute a good
cause of action, on which a recovery
may be had in assumpsit; Prentiss
v. Foster, 2 Williams, 742 ; Williams
v. Fhillerton, 20 Vermont, 346. But
as under these circumstances, the le-
gal right is founded on the equitable
obligation, there must be a good as-
signment in equity, to render the pro-
mise binding in law; Pope v. Luff,
5 Hill, 413; 7 Id. 578; Quin v.
Hanford, 1 Id. 82 ; Ford v. Adams,

2 Barbour, S. C. 349 ; Blunt v. Boyd,

3 Id. 209; Ramsdale v. Horton, 3
Barr, 330; 2 American Leading
Cases; 193, 4th ed.



COMPROMISE. SEPARATE MAINTENANCE.

[*684] *STAPILTON v. STAPILTON.

AUGUST 2, 1739.
REPORTED 1 ATK. 2.

Compromise — Family Arrangement.] — An agreement entered into upon
a supposition of a right, or of a doubtful right, though it after comes out
that the right was on the other side, shall be binding, and the right shall
not prevail against the agreement of the parties ; for the right must always
be on one side or the other ; and, therefore, the compromise of a doubt/ul
right is a sufficient foundation of an agreement.
Where agreements are entered into to save the honor of a family, and are



STAPILTON V. STAPILTON. 381



reasonable ones, a court of equity will, if possible, decree a performance of
them.

By a deed, dated on the 21st of August, 1661, Philip Stapilton was tenant
of the premises in question, for ninety-nine years, if he so long live, remainder
to trustees to preserve contingent remainders, remainder to his first and other
sons in tail male, remainder to his right heirs.

Philip having two sons, Henry and Philip, they, by deeds of lease and re-
lease, the 9th and 10th of September, 1724, reciting, that, for settling and
perpetuating all manors, &c, in the name and blood of the Stapiltons, and for
making provision for his two sons, &c, for preventing disputes and contro-
versies that might possibly arise between the said two sons, or any other
pers ju claiming an interest in all or any of the estates thereinafter mentioned,
and for barring all estates tail, and for answering all and every the purpose
and purposes of the parties thereto, and for and in consideration of the sum
of 5s., release and confirm to Thomson and Fairfax all those manors, &c. :
To have and to hold to them, their *heirs and assigns, to the use (as r*pcK-i
to part) of Philip the father, his heirs and assigns for ever, and as to
another part, to the use of Philip the father for life, remainder to Henry the
son for life, remainder to trustees to preserve contingent remainders, remainder
to his first and every other son in tail male, remainder to Philip the son for
life, remainder to trustees to preserve contingent remainders, remainder to his
first and other sons in tail male, remainder to the daughters of Henry in tail,
remainder to the daughters of Philip the son in tail, remainder to the right
heirs of Philip the father. And as to the remaining part, to the use of Philip
the father for life, with like limitations 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 were covenants to suffer a recovery within twelve months, and like-
wise for farther assurances. N. B. To this deed, the heir of the surviving
trustee in the deed in 1661, was not a party.

But, by deeds of lease and release, dated the 28th and 29th of September,
1724, to which the heir of the surviving trustee of the deed of 1661 was a
party, the father and two sons make Thomson and Fairfax tenants to the
praecipe, in order to suffer a recovery for the purposes mentioned in the former
deeds of the 9th and 10th of September, 1724.

Before any recovery suffered, Henry died, leaving issue the plaintiff.

Afterwards, by lease and release, the 12th and 13th of April, 1725, to
which the heir of the surviving trustee of the deed of 1661 was a party,
Philip the father and Philip the son covenant to suffer a recovery, in which
Thomson and Fairfax were to be tenants to the praecipe, to the use, as to part
of Philip the father, his heirs and assigns; and as to the other part, to the
use of Philip the father for life, remainder to Philip the son in fee.

In Trinity Term, 1725, a recovery was suffered, in which were the same
tenant to the praecipe, the same demandant, and the same vouchees (except



382 COMPROMISE. — SEPARATE MAINTENANCE.



Henry, who *was dead,) as were covenanted to be by the first deed ;
I bbbj .^ ^ ag likewise suffered within twelve months after the first deed.

The father Philip Stapilton, being dead, the plaintiff, as son and heir of
Henry, brought this bill to establish his title to the premises in question, and
for the whole estate as tenant in tail under the old settlement, and to be let
into possession, and for an account of rents received by Philip Stapilton the
son, due since the death of the plaintiff's grandfather, and to have the same
applied for the plaintiff's benefit during his infancy, and for an injunction to
restrain the defendants from receiving any more rents.

The defendant Philip the son, by his answer confesses the several deeds
before mentioned, but says, Henry was a bastard, and that, by virtue of the
deed of 1725, and of the recovery, he was entitled to the whole estate in
question.

Upon an issue directed, Henry was found illegitimate, and the cause was
now heard upon the equity reserved, when the counsel for the plaintiff,
waiving the claim to the whole estate, insisted upon these two points : —

1st: That the recovery suffered in Trinity Term, 1725, should enure to the
use of the deeds of the 9th and 10th of September, 1724, and not to the uses
of the deed in 1725.

2ndly. Supposing it did not, yet that the deed of 1721 was such an agree-
ment as this Court will carry into execution.

As to the first point, it was said that the uses, when once declared, cannot
be altered, unless all the parties entitled to the uses join in the new declara-
tion ; and Henry did not join in the deed of 1725. Tenant in tail may part
with his estate, and it shall be good against him, though not against his issue.
For tenant in tail is not aided by the Statute of Westminster the 2nd, but
only his issue ; therefore, by the deed of 1724, the uses being executed by the
statute of Hen. 8, Henry gained a base fee, which is not avoidable by Philip
r#pQ - | during his life ; *and, as his issue are barred by the subsequent re-
covery, they will not be able to avoid it, and consequently Henry's
estate, which was before defeasible, is made indefeasible by the recovery.

If tenant in tail confesses a judgment, or mortgages the lands, and after-
wards suffers a recovery to a collateral purpose, that recovery shall enure to
make good all his precedent acts and incumbrances : 1 Ch. Cas. 119. l [Lord
Chancellor mentioned a case in Lord King's time, where father, tenant in
tail, remainder to himself in fee, contracting debts on specialty, his son after
his death levying a fine, let in his father's creditors.] And if a recovery
suffered 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 are all the parties who covenanted by that deed.

As to the second point : this cannot be considered as a voluntary agreement,
for Henry's legitimacy was then doubtful, and, if he had proved legitimate,

1 Goddard v. Complin.



STAPILTON V. STAPILTON. 383

Philip would have come into this Court to have the agreement executed, and
Henry would have been bound by it. This Court has decreed the perform-
ance of agreements like this, founded upon mistakes ; as in the cases of
Frank v. Frank, 1 Ch. Cas. 84, and Cann v. Cann, 1 P. Wins. 723.

For the defendant it was argued, as to the first point, that Henry being
dead before the recovery was suffered, the intent of the parties in the first
deed could not be pursued ; for the plaintiff (supposing him legitimate) claims
paramount his father, and the deed 16G1 ; therefore, as the recovery could not
substantiate the first deed, supposing him legitimate, it shall not substantiate
it, now he is found illegitimate.

The plaintiff, upon the death of his father, had not any use vested in him ;
for the intent of the parties was, that the uses should arise out of the recovery ;
the ends recited could not be come at without a recovery ; and where the in-
tent of the parties is, that the uses should pass by fine or recovery, nothing
will pass by the deed that is intended *ouly to declare the uses. The r*(?qQ-|
fine and recovery all make but one conveyance : Cro. Jac. 643 ; 2 Ro.
Rep. 68 ; 2 Lev. 306; 1 Vent. 279 ; 2 Lev. 54; Cromwell's case, 2 Co. 69;
Cro. Jac. 320.

As to the second point : take it as an agreement, this Court will not decree
a performance of it ; for, supposing Henry had been found legitimate, this
Court would not have decreed a performance of it against the plaintiff; so
that, in regard to the defendant, it must be considered as a voluntary agree-
ment, into which he was drawn without any valuable consideration ; and the
covenant for further assurance will be void, as the deed itself to which it is
annexed is void ; and so it was determined in the case of Fursaher v. Robinson,
Prec. Ch. 475.

Lord Chancellor Hardwicke. — The plaintiff in this case is entitled to
have a decree. There was a sufficient foundation for Philip the father, and
Henry and Philip, his two sons, to execute the lease and release of the 9th
and 10th of September, 1724. It was to save the honor of the father and his
family, and was a, reasonable agreement ; and, therefore, if it is possible for
a court of equity to decree a performance of it, it ought to be done.

It would be very hard for the defendant, on his side, to endeavor to set
aside this agreement, and the effect of this deed. Consider the state and
situation of the family at the time of making the agreement; Philip had these
children grown up, had a very considerable real estate, both his sons then
owned as legitimate, their father and mother had lived together as husband
and wife for many years, and at the time of this agreement were so; there
was a foresight in the father and mother, that such a dispute between their
two sons might hereafter arise, to their dishonor, and likewise that of the
family.

The foundation of this agreement, the illegitimacy of the eldest son Henry,
has now been determined by a trial, and it is found that Henry was a bastard ;



384 COMPROMISE. — SEPARATE MAINTENANCE.



yet both the sods are of the same blood of the father equally, though not so
in the notion of the law.

*If the elder son should be found illegitimate (as he now is,)
t J the father knew he would be left without any provision, if no such
agreement was made ; and, on the other hand, if his legitimacy should be
established, then Philip, the younger son, would have nothing. To prevent
these disputes and ill consequences, the father brings both his sons into an
agreement to make a division of his real estate. It is very plain the parties
did not know who was the heir of the surviving trustee in the settlement of
1661, at the time of the lease and release of the 9th and 10th of September,
1724 ; because they covenant a writ of entry should be sued out within twelve
months, which is a very unusual time to limit to suffer a recovery, and done
in order to give time to find out the heir of the surviving trustee, if they could
find him out; but he was afterwards found, and made a party to the deeds of
the 28th and 29th of September, 1724.

The bill is brought by the eldest son and heir of Henry, to have the benefit
and possession of the whole estate, and to have an account of the rents and
profits, and to be quieted in the possession, and for general relief. Upon the
first hearing, an issue was directed to try whether Henry the father was legi-
timate, and it was found he was not ; and now the plaintiff insists upon having
the benefit of this agreement, whereby he is only entitled to a part; this being
the bill of an infant, he may have a decree upon any matter arising upon the
state of his case, though he has not particularly mentioned and insisted upon
it, and prayed it by his bill ; but it might be otherwise in the case of an adult
person.

Upon this case there arise two general questions : —

First, Whether the plaintiff has any estate at law by virtue of any of the
conveyances, or by the recovery ?

Secondly, if he has no estate at law, or only a defeasible one, whether he is
entitled to have the benefit of this agreement, and to have it carried into exe-
cution here ?

The first question consists of two branches : —

First, Whether the lease and release of the 9th and 10th of September,
r*6901 1""^' w *^ amount to a good ^declaration of the uses of the recovery,
notwithstanding the subsequent deed of April, 1725 ?

Secondly, If not, whether the recovery of Trinity Term, 1725, having
barred the estate tail, will make good any estate which passed by the lease
and release of the 9th and 10th of September, 1724 ?

As to the first : whether the lease and release is a good declaration of the
uses of the recovery, I am strongly inclined to think it will amount to a good
declaration; this question depends on the construction of law, and the autho-
rity of cases upon the declaration of uses. It is true, where there is an agree-
ment to suffer a recovery, and uses are declared, if the recovery is after
suffered, though it varies in point of time from the recovery covenanted to be



STAPILTON V. STAPILTON. 885

suffered, yet if there is no subsequent declaration of uses, the recovery will
enure to the uses so declared. ,

And before the Statute of Frauds, if the deed declaring the uses had not
been pursued, a parol declaration of uses would have been let in ; but if there
is a deed declaring the uses, and the common recovery is suffered accordingly,
that would, before the statute, exclude a parol declaration of new uses.

But, even now, there may be a subsequent declaration of uses, but that de-
claration must be in writing, and such a new declaration of uses depends upon
the agreement of the parties; therefore, though it is said at the bar, that the
declaration of uses is in the power of the tenant in tail, and that he may de-
clare new uses, I take that not to be law, for such subsequent declaration
must be by all the parties concerned in interest ; and in the case of the
Countess of Rutland, (5 Co. 25,) it is not laid down there that the tenant in
tail might declare new uses, but it is said, whilst it is directory only, new
uses may be declared; and the meaning of that is, that, as the uses must arise
out of the agreement of the parties, the parties may change the uses, but that
must be done by the mutual consent of all the parties concerned in interest;
and in that case it was a mutual agreement of all parties.

*And in the case of Jones v. Morley, (2 Salk. 677, there was a vari-
ance as to the time of suffering the recovery, from the deed declaring L J
the uses, and it was there held, that a declaration of uses was equally good,
whether by deed or not, if in writing.

But, in the present case, the second agreement not being between all the
parties concerned in interest, ought not to control the first declaration, and
especially as this recovery was suffered within the time prescribed by the first
deed, and between the same demandant and tenant.

The consideration for suffering the recovery was good, both in law and
equity; and there is no case to warrant me to say, the first agreement is not
good and binding, or that the tenant in tail could by his own agreement after-
wards change the uses.

But if it was doubtful whether the recovery suffered in 1725 should enure
to the uses declared by the deed of 1724, I am of opinion the recovery will
operate to make good those estates which passed by the deed of 1721.

But to this, two objections have been made : —

First, that the uses must be governed by, and operate according to the in-
tention of the parties ; therefore, the subsequent recovery being suffered to
other uses, those uses will take place.

Secondly, if any uses did pass by the deed in 1724, yet this recovery will
not make those uses good ; because the subsequent recovery was suffered to
particular uses declared by the deed of 1725.

As to the first objection, I am of opinion that a use did pass by the deed of
1724, and according to the intention of the parties. It is certainly true, that,
according to the Statute of Uses, 1 the general doctrine is, that the uses shall

1 27 Hen. 8, c. 10.
vol. in. — 25



386 COMPROMISE. — SEPARATE MAINTENANCE.



be executed according to the intention of the parties; but both the courts of
law and equity consider what was the general and final intent of the parties.
In this case, their intention was, that the estate should pass; and wherever a
court of law or equity find that the general and substantial intent of the parties
was that the estate *should pass, they will construe deeds iu support
[*G92] Q f t | iat i n t en tion different from the formal nature of those deeds them-
selves • as a feoffment to serve the intention of the parties, shall operate as a
covenant to stand seised. The intent here was, that the estate in point of
law should pass by the deed of 1724, and that the uses declared by that deed
should vest in the meantime till the recovery suffered. This is an answer to
the objection arising from the Statute of Uses; but there is another question,
What estate passed by the deed of 1724?

It was a defeasible estate to serve the uses of that deed, and so is the reso-
lution in Machill v. Clarke, in Farresl. 18, 1 2 Salk. 619, that tenant in tail
may convey a base fee and estate defeasible, by the entry of the issue.

The next question is, whether the recovery suffered in 1725 did enure to
make good and render indefeasible those base estates created by the deed of
1724 ? And I am of opinion they are made good.

The objection to this is, that the recovery was suffered in pursuance of the
deed of 1725, wherein there were new uses limited ; but the only uses which
make any difference in that deed, are to Philip the son and his heirs; so there
is nobody concerned in the question but Philip and his heirs.

It has been argued by defendant's counsel, that, if the first declaration of
uses is in general to prevail, purchasers of estates, though they have a recovery
for strengthening their title, with a declaration of the uses of the recovery to
themselves and their heirs, cannot be safe ; for the vendor may defeat such
declaration by a precedent one to different uses ; but in such cases I think a
recovery would not enure to make good such former declaration of uses, but
only the uses of the purchase.

It is admitted, that, if tenant in tail confesses a judgment or a statute, or
enters into a bond and afterwards suffers a recovery to bar the estate tail, it
lets in the precedent judgment, &c. And it is as clear, if a tenant in tail makes
a lease not warranted by the statute of the 32 Hen. 8, if he suffers a recovery,
that lets in the lease *and makes it good. There are so many cases
L -"of this kind, that it is not necessary for me to mention them.

This case is different from those that turn only upon the point of the effect
of a mere declaration of uses ; for a mere declaration of uses subsists only upon
the agreement of the parties; and in such cases, where the agreement has
been changed by mutual assent of all parties, there a recovery shall enure to
make good such last agreement or declaration.

But if the estate was vested, notwithstanding such declaration of uses, yet
the recovery has always been held to make good such defeasible estate; for
the prior lease, charge, or estate made by tenant in tail, is only defeasible by

1 4 Mod. 1.



STAPILTON V. STAPILTON. 387

the issue, by virtue of the statute de donis, which was made to protect the
issue agaiust the alienation of the tenant in tail ; therefore the issue would
avoid such lease, &c, but not the tenant in tail himself; but when by the
recovery he has gained to himself a fee, all the reasoning for avoiding an es-
tate made by tenant in tail is gone, for the issue is barred by the recovery.
The reason why the issue may avoid a charge made by tenant in tail is, upon
account of the protection of the issue and his estate, under the statute de do-
nis, and of the privity of the estate tail; but when the privity is gone, the
reason ceases ; and to this purpose is the case of Croker v. Kehey, Sir W.
Jones, 60.

In the case of Lord Berwentwater, (9 Mod. 172,) the question was, whether
a Papist, tenant in tail, suffering a recovery and declaring the uses to himself
in fee, gained a new estate within the 11th and 12th of Will. 3, or was in of
the old use ? And it was held, the 5th of Geo. 1, by four judges out of five,
appointed delegates to determine appeals from the Commissioners of Forfeited
Estates, that he was in of the old use; and I take it for law, that a tenant in
tail suffering a recovery is in of the old use, and that the estate is discharged
of the statute de donis ; and therefore I am of opinion that the recovery has
made good this defeasible estate, created by the deed of 1724.

*It has been objected, that, if the plaintiff has any title, his remedy
is at law; but I think it is more properly here. He is an infant, and L -■
has come recently into this Court. Nor do I think this case depends entirely
upon the point of law; for I am of opinion that the plaintiff is entitled to have
an execution of the agreement, as a good and binding agreement in this Court.

The question is, whether there was any caluable consideration on all sides
for entering into this agreement ? If so, then there is a sufficient ground for