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2 Vern. 510.
5. In a case determined in 44 Eliz. the following cir- Twine's cumstances were held to be badges of fraud :-10.
3 Rep. 89. gift was general, of all the donor's goods and chattels, real and personal, without exception of his apparel. %. The donor continued in possession, and used them as his own; and, by reason thereof, he traded and Stone v. trafficked with others, and defrauded and deceived Grubham,
1 Roll. them. 30. There was a trust between the parties. Rep. 3.
6. A. conveyed his estate to the use of himself Turback v. for life, with power to mortgage such part as he Marbury, should think fit, remainder to trustees, to sell and pay all his debts ; but continued in possession, and kept the deed : afterwards A. became indebted by judgment and bond. It was decreed that this conveyance was fraudulent, as against the creditors by bond and judgment; who, not having notice of the settlement, should not come in on an average only with the other creditors. 7. It was determined in a modern case, that where Estwick v.
Cailland, a person, having several creditors, conveyed part of
5 Term R his real and personal estate to a trustee, in trust to 420. pay half the rents and profits to the grantor, for his own use, and the residue among certain creditors named in a schedule; without any intention of fraudulently delaying his other creditors; the deed was not void, within the stat. 13 Eliz. : and Lord Kenyon said it was neither illegal nor immoral to prefer one set of creditors to another.
8. No creditor can avoid a fraudulent conveyance, i Ves. Jun. unless his debt is of such a nature as to affect the 160. land : so that he must obtain a judgment for it. 9. With respect to deeds made with an express or to de
fraud Purintent to defraud purchasers, the stat. 27 Eliz. was
chasers. particularly necessary; for it is said by Yelverton in
Cro. Eliz. 37 Eliz. that at common law, no fraud was remedied 445.
which should defeat an after-purchase, but that only
which was committed to defraud a former interest. Colville v. 10. The mere continuance in possession, after the Parker, Cro. Ja. 158. execution of the conveyance, if such possession be
consistent with the deed, is not in itself sufficient evi. dence of an intent to defraud.
11. It is not necessary that the person who sells
the land should have made the former conveyance. Burrell's For it was resolved in 3 Jac. that if a father made a Case, 6 Rep. 72.
lease by fraud or covin to defraud purchasers, and died; and the sor, knowing or not knowing of the lease, sold the land for valuable consideration, the
purchaser should avoid the lease. Notice is 12. Although the subsequent purchaser should immaterial.
have notice of the preceding fraudulent conveyance,
yet he will be allowed to invalidate it. Gooch's 13. Thus, Lord Ch. J. Wray has said, if A. seised Case,
of land in fee, makes a fraudulent conveyance, to 5 Rep. 60.
the intent to deceive purchasers, against the stat. 27 Eliz., and continues in possession, and is reputed owner ; B. enters into discourse with A. for the purchase of it, and by accident gets notice of the fraudulent conveyance, and notwithstanding concludes with A., and takes assurance of him. In this case B.
should avoid the fraudulent conveyance by the said Cowp. R. act, notwitstanding his notice : for the act, by ex711.
press words, made the fraudulent conveyance void, as to a purchaser : and forasmuch as it was within the express purview of the act, it ought to be taken
and expounded in suppression of fraud. Standen v. 14. One Bullock made a fraudulent estate of his Bullock,
land within the stat. 27 Eliz., and afterwards offered 6 Rep. 60.
to sell it to Standen. Before assurance thereof, Standen had notice of the fraudulent conveyance, and notwithstanding proceeded and took his assu
rance of Bullock. It was agreed that Standen should avoid the fraudulent conveyance; for the notice of the purchaser could not make that good, which an act of parliament made void as to him ; and true it was, quod non decipitur qui scit se decipi. But in this case the purchaser was not deceived; for the fraudulent conveyance, whereof he had notice, was void, as to him, by the said act, and therefore should not hurt him; nor was he, as to that, in any manner deceived.
15. When the Judges were first called upon to ex- Voluntary pound these statutes, they appear to have considered Conveyances
void against all voluntary conveyances, that is, all conveyances Creditors. not founded on a pecuniary or other valuable consideration as fraudulent, and consequently void against actual or future creditors. 16. Thus where A. having lands as heir to his Apharry v.
Bodingham, father, covenanted for natural love and affection to Cro. Eliz. stand seised to the use of himself for life, remainder 350. to his first son in tail, &c. ; he having notice at the time of a bond entered into by his father to B.; an action of debt was brought by B. on this bond against A. as heir ; and it was held that the conveyance by Ait. Gen. A. was fraudulent and void against B., as much as a 2 Atk. 152.
I Ves. & Bea. conveyance by the father, the original debtor, would have been.
17. Lord Hardwicke has said, that he had scarcely known one case, where the person conveying was 1 Atk. 15. indebted at the time of the conveyance, that had not been deemed fraudulent.
18. It appears however to have been soon esta- Except where blished, that voluntary conveyances were only void is not indebtagainst creditors, where the persons making such ed at the
time, conveyances were indebted at the time, and that all voluntary conveyances were not void against future creditors; but only such as were also fraudulent. 2 Vern. 327.
Holcroft's 19. Thus it is said in a note in Dyer, that if a
this shall be good, if he was not in debt at the time :
but if he was in debt, it would be otherwise. 1 Atk. 93. 4.
20. Lord Hardwicke has said, that it is necessary, on the stat. 13 Eliz., to prove that the
that the person making a settlement was indebted at the time, or immediately after the execution of the deed. And that where a man has died indebted, who in his lifetime made a voluntary settlement, upon application to the Court of Chancery, to make it subject to his debts
as real assets, the Court has always denied it, unless 2 Ves. 10. it was shown that he was indebted at the time the S.P.
conveyance was executed. Stephen 21. It was held by Lord Kenyon, when M. R. v. Olive,
that a settlement after marriage, in favour of a wife 2 Bro. R.I.
and children, by a person not indebted at the time, was good against creditors, and not within the stat.
13 Eliz. And in another case it was declared by Lush v.
Lord Alvanley, when M. R., that to impeach a Wilkinson,
settlement, made after marriage, under the stat. 5 Ves, 384.
13 Eliz., the husband must be proved to have been 12 Ves. 147.
indebted at the time, to the extent of insolvency. Walker v.
22. Conveyances of this kind are however rendered Burrowes, void against commissioners of bankrupts, by the 1 Atk. 93.
statute 1 Ja. I. ; unless made upon the marriage of a
child, being of the age of consent. Voluntary 23. Voluntary conveyances are in all cases void Conveyances against subsequent bona fide purchasers, for valuable void against Purchasers.
consideration ; for the subsequent conveyance to a purchaser sufficiently proves a fraudulent intent in
making the former conveyance. And although it is 1 Vent. 194. said in Bovey's case, that a voluntary conveyance was 2 Ves. 10.
not upon that account to be reckoned fraudulent, or 3 Atk. 412.
to be avoided by a purchaser for a valuable consi
deration ; and this doctrine has been frequently repeated; yet there is no case in which a voluntary conveyance, though unattended with fraud, has been supported against a subsequent bona fide purchaser, for a valuable consideration ; but, on the contrary, such Tot. 158. voluntary conveyances have always been deemed Moo. 615. fraudulent and void, as against subsequent purchasers.
24. The plaintiff's suit was to be relieved upon Leach articles of agreement for the purchase of land from y. Dean,
1 Cha. R. 78. the defendant Richard Dean, who, before any conveyance in execution of the articles, had conveyed the premises by deed to the defendant, Roger Dean his son. The Court, with the assistance of the Judges, declared that the said deed so made to Roger Dean, being a voluntary conveyance, and the said Richard Dean settling the premises to the plaintiff for valuable consideration, the said voluntary conveyance was a fraud.
25. Settlements made on a wife or children after marriage, unsupported by any other consideration but that of love and affection, being only founded on a moral duty, are voluntary; and void under the stat. 27 Eliz. as to subsequent purchasers for valuable consideration.
26. Thus, in the case of Colvill. v. Parker, Just. Woodie's Tanfield cited a case in which it was adjudged, that
Case, where a person, after marriage, voluntarily assigned a lease for
years, as a jointure for his wife; and afterwards sold it to one who had not any notice of this conveyance; it was within the statute.
27. J. Reade being tenant for life, with remainder Goodright to his daughter Elizabeth in tail ; they joined in
2 Black. R. levying a fine to trustees, in trust for the father for 1019. life, and after his decease for the maintenance of Elizabeth and her children during the life of Eliza
Cro. Ja. 158.