And a settlement made with power of revocation, will be void against a subsequent purchaser, although the grantor release or extinguish the power previously to the sale, otherwise the vendor might secretly release or destroy the power, and then shew to the purchaser the conveyance containing the power of revocation, and so induce him to buy the land (1), In the case, however, in which this was decided, the settlement appears to have been voluntary, and the purchaser had not notice of the power being destroyed. But if a settlement should be made for valuable consideration, with a power of revocation, and the vendor should afterwards release the power for a valuable consideration, it is conceived that a purchaser, subsequently to the destruction of the power, could not prevail over the settlement, more especially if he had notice of the power being released, The statute, as we have seen, operates conditionally, that is, where the first conveyance is not revoked according to the power. The act has no effect until the donee of the power sell the estate, without revoking the first conveyance, by virtue of his power. Suppose then a vendee professes to execute his power, but it is informally exercised, will the defect be cured by the statute ? The legislature intended to protect purchasers against fraudulent settlements, with powers of revocation; for it is essential to bring a case within the act, that the estate should be sold, and the first conveyance not be revoked according to the power reserved to the grantor by such secret conveyance The non-execution of the power is the fraud which the statute intended to avoid. The conveyances against which the act was intended to (7) Bullock Thorne, Mo. 615. z 2 operate, operate, were presumed to be secret. It was not meant to relieve any man who was aware of the existence of the power, and might have required it to be exercised. The statute was not intended to operate as a mode of conveyance. But without insisting that where a purchaser is aware of the settlement, he must require the power to be executed, it may be urged, that where a purchaser does rest his title on the execution of the power, he rejects the aid of the legislature, and takes his title under, and not in opposition to the settlement; and can, therefore, only stand in the same situation as any other purchaser who has unfortunately taken an estate under a power defectively executed. The purchaser can scarcely be held to have a good legal title, unless the vendor not only attempted to execute the power, but actually conveyed the estate to him. SECT. SECTION II. OF THE PERSON WHO MAY CLAIM THE RELIEF. IN Upton and Bassett's case (a) it was resolved, that no purchaser should avoid a precedent conveyance made by fraud and covin, but he who is a purchaser for money or other valuable consideration; for although in the preamble it is said (for money or other good consideration), and likewise in the body of the act, relating to voluntary conveyances (for money or other good consideration); yet these words (good consideration) are to be intended only of valuable consideration; and that appears by the clause now under consideration, for there it is said, "for money or other good consideration paid or given;" and this word " paid" is to be referred to money, and " given" is to be referred to good consideration, so the sense is for money paid or other good consideration given; which words exclude all consideration of nature or blood or the like, and are to be intended only of valuable considerations which may be given, and therefore he who makes a purchase of land for a valuable consideration, is only a purchaser within this statute. And to take advantage of this statute, the purchaser must have purchased bona fide without deceit or cunning, and for a valuable and not inadequate consideration (b). (a) 3 Rep. 83, a; Cro. Eliz. 444. (b) Upton v. Bassett, Cro. Eliz. 444; Nedham v. Beaumont, 3 z 3 Rep. 83 b; 2 And. 233; Doe And a lessee with (c) or without a fine (d) as well as a mortgagee (e) is a purchaser within the statute. So a settlement made on a wife or children, prior to marriage, is a conveyance for valuable consideration, by reason of the marriage itself (f). And the marriage consideration runs through the whole settlement, so far as it relates to the husband, and wife, and issue (g). But there are few cases, perhaps none, in which the marriage consideration will extend to remainders to collateral relations. So, if an agreement be entered into before the marriage, for a settlement of the estate (h), or the husband receive an additional portion with his wife (i), the settlement, although made after marriage, will be deemed valuable. So, even an agreement to pay the husband a sum of money, as a portion, will support a settlement made after marriage, if the money is paid according to the agreement (k). So the concurrence of the wife in destroying an existing settlement on her for the benefit of the husband, is a sufficient consideration for a new settlement, although 180. (d) Hinde v. Collins, Cro. Jac. (c) Cross v. Faustenditch, Cro. Jac. (h) Griffin v. Stanhope, Cro. Jac. 454; Sir Ralph Bovie's case, 1 Vern. 193; but qu. where the agreement before the marriage is by parol; see Randall v. Morgan, 12 Ves. jun. 74. (e) Goodright v. Moses, 2 Blackst. (f) Colvile v. Parker, Cro. Jac. (i) Colvile v. Parker, Cro. Jac. 158; Jones v. Marsh, For. 64; Stileman v. Ashdown, 2 Atk. 477; Ramsden v. Hylton, 2Ves. 304. (g) Nairn v. Prowse, 6 Ves. jun. (k) Brown v. Jones, 1 Atk. 188. 752. much much more valuable than the former (k). And the better opinion, as well upon principle as in point of authority, seems to be, that the wife joining in barring her dower, for the benefit of her husband, will be a sufficient consideration for a settlement on her (1). It has been decided, that the wife parting with her jointure is a sufficient consideration. Now, if that which comes in lieu of dower is a valuable consideration, surely the dower itself must be equally valuable. Besides, where a woman is entitled to dower, the estate cannot be sold to advantage without her concurrence: she is a necessary party to any arrangement respecting the estate, and that alone seems a sufficient ground to support a settlement on her (m). But if an unreasonable settlement be made upon a wife in consideration of her releasing her dower, it seems that equity in favour of subsequent purchasers will restrain her to her dower (n). If upon a separation the husband settle an estate upon his wife, and a friend of her's covenant to indemnify the husband against any debts she may contract, this will be a sufficient consideration to uphold the settlement as valuable (o). Indeed, the courts will anxiously endeavour to support a fair settlement, and nearly any consideration will be sufficient for that purpose. |