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beth, and after her death and that of her husband, to raise portions for their younger children. Elizabeth survived her husband, and made a lease of the premises for 21 years at a rack rent. Upon an attempt to annul this lease by the daughter of Elizabeth, Lord C. J. De Grey delivered the opinion of the Court, that the deed was only a voluntary conveyance, within the true meaning of the stat. 27 Eliz., being founded only upon a good, and not upon a valuable consideration : and therefore could not be
set up against a bona fide purchaser. Though with
28. Although a purchaser has notice of a voluntary Notice.
settlement, before he purchases, yet it will not affect Chapman
him; and he will be allowed to hold the estate against v. Emery,
the persons claiming under such voluntary settleinfra.
ment. Evelyn v. 29. C. Evelyn, by a settlement after marriage, con2 Bro. RT.148. veyed the premises in question to trustees, to the use
of himself for life, remainder to trustees, to pay an annuity to his wife for her life, remainder to other trustees, to raise 4,000l. for younger children, remainder to his first and other sons in tail, with a proviso that it should be lawful for C. Evelyn, by deed, to revoke the uses, and sell the estate ; but he covenanted that the money to be raised by the sale of the lands, should be paid to the trustees, to be by them laid out in the purchase of other lands, to be settled to the same uses. J. Templar purchased the settled estate of Evelyn, and paid the purchase money to him. The children of Evelyn, claiming under the settlement, filed their bill against Templar, stating that he had notice of the settlement, and insisting that he ought to have paid the purchase money to the trustees, not to Evelyn. The defendant contended, that the settlement being made after marriage, was
voluntary and fraudulent as to him; and claimed the benefit of the statute 27 Eliz. Lord Thurlow said, that although it would have been as well, at first, if voluntary conveyances had not been thought so little of, yet the rule was such, and so many estates stood upon it, that it could not be shaken; and dismissed the bill. 30. J. Manning, by indenture dated in 1783, in Doe y.
Manning, consideration of love and affection for his mother, 9 East, 59. sisters, and brother, and for making a provision for them, conveyed the premises in question to trustees, to the use of himself for life, remainder to the use of his mother for life, &c. Two years after, J. Manning, in consideration of 1,800 l. conveyed the premises to R. Otley in fee, and Otley had notice of the settlement of 1783 before payment of the purchase money, and execution of the conveyance.
The question was, whether this conveyance to Otley, who brought an ejectment for the recovery
of the premises, was good, against the prior settlement.
Lord Ellenborough delivered the judgement of the court. He said, as it was found that there was no fraud in fact in the conveyance of 1783, the only point for the consideration of the Court was, whether a voluntary conveyance, without any valuable consideration, be not, according to the legal construction of the statute 27 Eliz. fraudulent against a subsequent purchaser for a valuable consideration ; or, in other words, whether in such case the law do not presume fraud, without admitting such presumption to be contradicted. After stating all the cases, his Lordship concluded in these words : « Thus stand the authorities on both sides of the question ; and the weight, number, and uniformity of those which establish the point contended for, on behalf of the plaintiff, do,
in our opinion, very much preponderate. And as many estates depend upon the rule, it ought not, we conceive, to be shaken. It appears from a manuscript note, formerly belonging to Mr. Justice Clive, that Mr. Horseman, in the year 1713, advised the making of a mortgage of the estate settled in strict settlement by Sir R. Anderson, after his marriage; thinking it voluntary and fraudulent, as against a purchaser. And the like advice as that which he gave nearly a century ago, probably had been given before ; and that it has been given since, and acted upon, we cannot
doubt ; as Lord Thurlow was not likely to have exante, $ 29. pressed himself as he did in Evelyn v. Templar,
unless he had known that such had frequently been the case.
Feeling ourselves pressed with these authorities and considerations, we think ourselves bound to give judgement for the plaintiff.
Much property has no doubt been purchased, and many conveyances settled, upon the ground of its having been so repeatedly held that a voluntary conveyance is fraudulent, as such, within the stat. 27 Eliz. ; and it is no new thing for the Court to hold itself concluded, in matters respecting real property, by former decisions, upon questions in respect to which, if it were res integra, they probably would have come to very different conclusions. And if the adhering to such determinations is likely to be attended with inconvenience, it is a matter fit to be remedied by the legislature; which is able to prevent the mischief in future, and to obviate all the inconvenient consequences which are likely to result from it, as to purchases already made. And we cannot but say, as at present advised, and considering the construction put on the statute, that it would have been better if the statute had avoided conveyances only against purchasers for a valuable consideration, with. Vide Buckle
v. Mitchell, out notice of the prior conveyance.
18 Ves. 100. 31. By the fifth section of the stat. 27 Eliz, it is And Convey
ances with enacted, that if any person shall make any conveyance Power of Reof any lands, with a clause of revocation, at his will vocation. and pleasure, of such conveyance, and after such conveyance, shall bargain, sell, demise, grant, convey, or charge the same lands to any person or persons for money, or other good consideration, the said first conveyance not being revoked, that the said former conveyance, as against such bargainees, vendees, lessees, their heirs, successors, executors, administrators, and assigns, shall be void and of none effect.
32. It was resolved in Twine's case, that if a man 3 Rep. 83 a. has a power of revocation, and afterwards, to the intent to defraud a purchaser, levies a fine, or makes a feoffment, by which he extinguishes his
and then bargains and sells the land for a valuable consideration, the bargainee shall enjoy it; for as to him, the fine or feoffment by which the condition was extinct, was void by the said act; and so the first clause, by which all fraudulent and covinous conveyances are made void, as to purchasers, extends to the last clause of the act, namely, when he who makes the bargain and sale had power of révocation. And it was said that the stat. 27 Eliz. has made voluntary estates, with power of revocation, as to purchasers, in equal degree with conveyances made by fraud and covin, to
Faustenditch, defraud purchasers.
Cro. Ja. 180. 33. A man conveyed lands to the use of himself Standen v. for life, remainder to several persons of his blood, with Bullock,
3 Rep. 83 b. a future power of revocation; and before the power began, he, for a valuable consideration, bargained and sold the land to another and his heirs. It was 'adjudged that this bargain and sale was within the
remedy of the statute; of which the intent was, that all voluntary conveyances, which were originally subject to a power of revocation, whether present or future, should not stand against a purchaser for a
valuable consideration. Tarback v. 34. A power to mortgage an estate to any extent is Marbury, 2 Vern. 511.
in effect a power of revocation, and will therefore
render a deed void, as to a subsequent purchaser. Jenkins v. But if no fraud be found, a proviso to charge with a I Lev. 152. particular sum is not within the statute. Lavender v. 35. A power to lease all or any part of the lands, Blackstone, for
number of years, with or without any rent, 2 Lev. 146.
being in effect a power of defeating the whole settlement, has been considered as a power of revocation.
36. Where the power of revocation can only be exercised with the consent of persons who are not under the control of the settlor, the conveyance will
not be considered as within the statute. Buller v. 37. Sir John and Lady Maynard, in consideration Waterhouse, 2 Show, 46. of the marriage of their son, and of 5,000 1. portion 2 Jones, 94. paid with his wife, covenanted to levy a fine of lands,
which were the estate of Lady Maynard, to the use of Sir John for life, remainder to Lady M. for life, remainder to the son and his heirs; with a proviso, that it should be lawful for Sir John and Lady M., with the consent of four persons, to revoke the uses. After the death of Sir J., Lady M. entered and sold some of the lands, without the consent of the trustees. It was resolved that the settlement was not fraudulent, within the stat. 27 Eliz., as it could not be made to deceive a purchaser. The power of revocation not being exercisable at the will and pleasure, such are the words of the act, of the settlor; but was restrained by the necessity of obtaining the consent of four persons,