Page images
PDF
EPUB

tion, except that of leasing. In the exercise of this
power, they are placed under considerable restrictions

by the legislature, of which an account will be given Ch. 5.
hereafter. Incumbents of livings are however per-
mitted and enabled, by the statute, 17 Geo. III. c. 53.
and 21 Geo. III. c. 66. to raise money by mortgage for
repairing or building houses.

11. By the statute 55 Geo. III. c. 147, every parson, vicar, or other incumbent of any ecclesiastical benefice, is enabled to exchange parsonage houses and glebe lands, with the consent of the patron and bishop, for other houses and lands; and also to purchase lands to be annexed to such benefices as glebe land thereof; and by mortgage of their tithes, rents, and other profits, to raise money for such purchases.

12. All agreements and deeds made by infants, from Infants. which no apparent benefit can arise to them, are either absolutely void or voidable; that is, the law allows the infant, when he comes of age, either to ratify and confirm, or else to avoid them. And where it is held that the deeds of infants are not void, but voidable, the meaning is, that non est factum cannot be pleaded; because they have the form, though not the opera- 3 Mod. 310. tion of deeds: they are not therefore void on that account, without showing some special matter to render them so.

13. Whatever an infant is bound and compellable to do at law, the same shall bind him although he does it without suit: Therefore where an infant reconveyed lands, which had been mortgaged to his father, the mortgage money having been paid off, the conveyance was held good.

14. A person conveyed the lands in question to W. Cooke and his heirs, by way of mortgage: Cooke afterwards died, leaving J. L. Cooke, an infant, his VOL. IV. C

Zouch v.

Parsons,

3 Burr. 1794.

Marriage

Female

Infants.

heir the mortgage money was paid off, and the infant joined with his father's executor in conveying the mortgaged premises to a new mortgagee. It was resolved by the Court of King's Bench, that the infant was bound by this conveyance, because it could never operate to his prejudice, and he was compellable to convey.

15. By the statute 17 Geo. III. c. 26. it is enacted, that all contracts for the purchase of any annuity, with an infant, shall be utterly void; any attempt to confirm the same, after such person shall have attained the age of 21 years, notwithstanding.

16. Contracts entered into by female infants, in Contracts by consideration of marriage, are more favoured than others. A female being capable of contracting marriage long before the age of twenty-one, she ought to be permitted to bind herself by the other parts of the contract; for as soon as the marriage is had, the principal contract is executed, and cannot be set aside; the estate and capacities of the parties are altered; the children born of the marriage become interested. It has therefore been truly observed, that marriage contracts ought not to be hastily rescinded, because the interests of third persons would be affected.

Cannell v. Buckle, 2 P. Wms. 243.

Harvey v. Ashley,

3 Atk. 615.

17. Lord Macclesfield has said, that if a female infant, on a marriage, with the consent of her guardians, should covenant, in consideration of a settlement, to convey an inheritance to her husband; if this were done in consideration of a competent settlement, equity would execute the agreement, although no action would lie at law to recover damages.

Lord Hardwicke, after citing this passage, says -"This is going a great way, as it related to the inheritance of the wife; but yet there are cases where

the Court will do it: as if the lands of the wife were no more than an adequate consideration for the settlement that the husband makes; and after the marriage the wife should die and leave issue, who would be entitled to portions, provided for them by the settlement; it would in that case be very reasonable to affirm that settlement."

Durnford v.

Lane, 1 Bro,
R. 106.

18. In a case where a bill was filed for a specific execution of articles, entered into by a female infant, respecting her real estate, previous to and in consideration of marriage, Lord Thurlow is reported to have said" To decree a specific performance of the articles, the Court must carry the principle to this length, that a wife making a wise settlement in her infancy, on the marriage, without any estate settled on the other side, is bound by the agreement; and that even if the husband had died, she must have been bound. I cannot think an infant, only covenanting as to her estate, can be bound. If she is so at all, it must be by reference to her marriage. Nobody has yet said that merely by its being upon marriage, she is bound; but it is said that upon a competent settlement, she would be bound. I think the Court should not go into the competence of the settlement. I must lay down, that every settlement shall be considered as good, till shown to be fraudulent. The cases have not gone so far, nor does my opinion. If she had a settlement from her husband, and after his death, she had taken possession of it, I think she would be bound by the equity arising from her own act. I say this in deference to Cannel v. Buckle, and Harvey v. Ashley. I think she ante, § 17. is not bound, unless she has availed herself of the settlement of the husband. In this opinion, I cannot

Marriage

Contracts by

Female Infants.

Cannell v.
Buckle, 2 P.
Wms. 243.

Harvey v.
Ashley,

3 Atk. 615.

heir the mortgage money was paid off, and the infant joined with his father's executor in conveying the mortgaged premises to a new mortgagee. It was resolved by the Court of King's Bench, that the infant was bound by this conveyance, because it could never operate to his prejudice, and he was compellable to convey.

15. By the statute 17 Geo. III. c. 26. it is enacted, that all contracts for the purchase of any annuity, with an infant, shall be utterly void; any attempt to confirm the same, after such person shall have attained the age of 21 years, notwithstanding. 16. Contracts entered into by female infants, in consideration of marriage, are more favoured than others. A female being capable of contracting marriage long before the age of twenty-one, she ought to be permitted to bind herself by the other parts of the contract; for as soon as the marriage is had, the principal contract is executed, and cannot be set aside; the estate and capacities of the parties are altered ; the children born of the marriage become interested. It has therefore been truly observed, that marriage contracts ought not to be hastily rescinded, because the interests of third persons would be affected.

17. Lord Macclesfield has said, that if a female infant, on a marriage, with the consent of her guardians, should covenant, in consideration of a settlement, to convey an inheritance to her husband; if this were done in consideration of a competent settlement, equity would execute the agreement, although no action would lie at law to recover damages.

Lord Hardwicke, after citing this passage, says -"This is going a great way, as it related to the inheritance of the wife; but yet there are cases where

the Court will do it: as if the lands of the wife were no more than an adequate consideration for the settlement that the husband makes; and after the marriage the wife should die and leave issue, who would be entitled to portions, provided for them by the settlement; it would in that case be very reasonable to affirm that settlement."

18. In a case where a bill was filed for a specific Durnford v. Lane, 1 Bro. execution of articles, entered into by a female infant, R. 106. respecting her real estate, previous to and in consideration of marriage, Lord Thurlow is reported to have said" To decree a specific performance of the articles, the Court must carry the principle to this length, that a wife making a wise settlement in her infancy, on the marriage, without any estate settled on the other side, is bound by the agreement; and that even if the husband had died, she must have been bound. I cannot think an infant, only covenanting as to her estate, can be bound. If she is so at all, it must be by reference to her marriage. Nobody has yet said that merely by its being upon marriage, she is bound; but it is said that upon a competent settlement, she would be bound. I think the Court should not go into the competence of the settlement. I must lay down, that every settlement shall be considered as good, till shown to be fraudulent. The cases have not gone so far, nor does my opinion. If she had a settlement from her husband, and after his death, she had taken possession of it, I think she would be bound by the equity arising from her own act. I say this in deference to Cannel v. Buckle, and Harvey v. Ashley. I think she ante, § 17. is not bound, unless she has availed herself of the

settlement of the husband. In this opinion, I cannot

« PreviousContinue »