TITLE VII. JOINTURE. CHAP. II. In what Cases a Jointress is entitled to the Aid of a Court of Equity. 1. A Jointress is considered as a Purchaser. 4. Though the Settlement be unequal. 7. Relieved against a voluntary Conveyance. 8. And against a satisfied A Term. 9. Not bound by Neglect during Coverture. 12. Nor to deliver up Title Deeds. 16. Effect of a Covenant that the SECTION 1. as a Pur JOINTRESS is considered, in equity, as a pur- A Jointress chaser; marriage alone being deemed a valuable is considered consideration. Therefore a jointress is entitled to the chaser. protection and aid of a court of equity; even though she elopes from her husband. So that wherever there infra, c. 3. appears to have been an agreement to settle a jointure, a specific performance of it will be decreed. 2. A man agreed, by articles, to settle certain lands, before marriage, on his intended wife, for her jointure. The marriage took effect, but the husband died before any settlement was made, The wife brought her bill for an execution of the articles. It was contended, that as the agreement was to make a settlement before marriage, and as the plaintiff married without requiring such settlement, it amounted to a waiver of the articles, and a release in law: an execution of them was however decreed. Hayner v. Vent. 343. Hayner, 1 Atk. 440. Though the Settlement be unequal. Whitfield 3. Lord Hardwicke has said, that in marriage contracts, where the fortune of the wife is paid to the father, or to clear incumbrances, or to the son; and the father and son are parties to the marriage contract; the wife has a lien upon both the estate of the father, and that of the son. 4. Although a settlement be very unequal, and much in favour of the wife; yet a court of equity will not relieve against it; because it cannot put the wife into her former situation. 5. A., upon a treaty of marriage with M. the daughter of B., was to settle 5007. a year upon her, and to have 5,000l. portion. But B. insisting that if A. should die without issue, his daughter should have the inheritance of the jointure, that was refused. Afterwards A. renewed the treaty himself, accepted of articles for payment of 5,000l., and settled a jointure of 500l. a year; he likewise made another deed in the nature of a mortgage of all his estate, as well the reversion of the jointure, as the rest, for securing the payment of 5,000l. to her, in case A. died without issue. A. died in a fortnight after the marriage, without issue. M. by bill prayed a foreclosure of the mortgage. The defendants, though they exhibited their bill for relief against this as a fraud, were decreed to pay the 5,000l. without interest. Upon an appeal to the House of Lords, it was argued that A. was a sickly and weak man, that the agreement was unreasonable, that A. on his deathbed declared he had made no such agreement, and that M., being present, did not contradict it. To which it was answered, that all bargains were not to be set aside, because not such as the wisest people would make; but there must be fraud to make their acts void. That the marriage was of itself a good consideration for a jointure; and reasonable or unreasonable was not always the question in equity; if each party was acquainted with the whole, and meant what they did much less was it sufficient to say that it was unreasonable, as it happened in event. For if at the time it was a tolerable bargain; nay, if at the time, the bargain was the meaning of the parties, and each knew what was done, and there was no deceit upon either, it must stand. The decree was affirmed. 6. A person brought a bill to be relieved against Wicherly v. a jointure, made previous to, and in consideration of marriage, by a tenant for life, in pursuance of a power, he being then upon his death-bed. Lord Parker, Prime v. assisted by Lord Chief Justice Pratt and the Master of the Rolls, denied relief. Wicherly, 2 P. Wms. 619. Stebbing, infra, c. 3. against a 7. A jointress will be relieved, in equity, against a Relieved prior' voluntary conveyance; because marriage is a voluntary sufficient consideration to make a wife a purchaser. Conveyance. And all voluntary conveyances are fraudulent and Tit. 32. c. 27. void against purchasers for a valuable consideration. a satisfied Term. 65. 8. A court of equity will also set aside a satisfied And against term for years in favour of a jointress: though it will not do so in favour of a dowress; because a jointress Prec. in Cha. has a fixed interest, by the agreement of the party. Tit. 12. c. 3. 9. The neglect of a married woman during cover- Not bound ture, will not affect her rights; and a court of equity by Neglect during Cowill notwithstanding assist her, in case her jointure verture. proves deficient. Nuthall, 1 Vern. 427. 10. The plaintiff's husband after marriage entered Beard v. into a voluntary bond to settle a jointure; and accordingly settled lands, upon which the bond was delivered up. The husband died, and the jointress was evicted. It was resolved that the jointure should be made good out of the personal estate, unless the plaintiff recovered dower; for this agreement, though Fothergill v. Nor to deliver Towers v. 1 Vern. 479. Lomax V. Sel. Ca. in Cha. 4. voluntary, ought to be decreed by the Court. And the delivery up of the bond by a feme covert, could no way bind her interest. 11. A person made a settlement on his son for life, remainder to his first and other sons in tail, with power to appoint any of the lands, not exceeding 100%. a year, to any wife he should marry, for a jointure. The father died, the son married, and after marriage, appointed certain lands to trustees, in trust for his wife, for a jointure; and covenanted, that if they were not of the value of 1007. a year, he would, upon request made to him any time during his life, make them up, out of the other lands. The husband lived several years; no complaint was made that the lands were not of that value, nor any request to make it up. On a bill brought by the widow to have the jointure made up 1007., Lord Keeper Wright said, that a provision for a wife, or children, was not to be considered as a voluntary covenant; and therefore decreed the deficiency to be made up, notwithstanding the wife's neglect in not requesting it during the coverture; for the laches of a feme covert could not be imputed to her. 12. If a bill is brought by an heir at law, or any other person, against a jointress, whereby the party would avoid the jointure, under pretence that his ancestor had not a sufficient title to make such a jointure; and seeks a discovery of deeds and writings, whereby he would avoid the title of the jointress; he will not be allowed to have such discovery, though the jointure be made after marriage, unless he by his bill submits to confirm the title of the jointress; then he shall. and 13. On a motion that all deeds, leases, and writings relating to the inheritance, should be delivered up, on confirming a jointure; it was opposed as to the leases, because without them the jointress could not recover the rents; and though the leases should be expired, there might be arrears of rent, and covenants. The Court ordered all deeds and writings, and expired leases, to be delivered up; unless particular reasons were shown to the contrary. Trollop, 14. The Court of Chancery will not oblige a widow Leech v. to produce the deed under which she claims her join- 2 Ves. 662. ture, on the bare offer of confirming it; but it must be absolutely confirmed. Sometimes allowed Interest for 15. Interest is not in general allowed for arrears of a jointure; but the court will expect a special case Arrears. to be made for that purpose: as the being obliged to Anon. 2 Ves. borrow money, and pay interest for it; then the Court Tew v. Winwill give interest, from a reasonable time. 261. terton, 1 Ves. Jun. 451. Covenant a certain 16. If a husband covenants that the lands limited Effect of a in jointure are of a certain yearly value, and they that the afterwards prove deficient; the covenant will be Lands are of decreed to be performed in specie. Although such Value a covenant be inserted in articles only, and not in the settlement made pursuant to them, yet it will be considered as subsisting in equity. Speake v. Hedges v. Everard, 17. A jointress brought her bill to have an account of the real and personal estate of her late husband; 1 Ab. Eq. 18. and to have satisfaction for a defect of value of her jointure lands; which he had covenanted to be, and to continue, of a certain yearly value. The defendant insisted that this was a covenant which sounded only in damages, and was therefore properly determinable at law. Though it was admitted that a court of equity cannot regularly assess damages, yet it was determined that in this case a Master might properly inquire into the amount of the defect, and report it |