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. pable of con-, veying. 12. With respect to the persons who are incapable Who are ines. of conveying by deed, all those who want sufficient age or understanding, to dispose of their property, and also several others, cannot bind themselves by the execution of a deed. 13. All deeds entered into by infants, from which Infants. 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 or 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 to them, because they have the form, though not the operation of deeds; they are not, therefore, void on that account, without shewing some special matter to render them so. 14. 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. sons, 3 Burr. 15. A person conveyed the lands in question to Zouch v. Par W. Cooke and his heirs, by way of mortgage: Cooke 1794. afterwards died, leaving J. L. Cooke, an infant, his 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 Marriage contracts by infants, Cannell v. Durnford v. Lane, 1 Bro. R. 106. never operate to his prejudice, and he was compellable to convey. 16. 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 twenty-one years, notwithstanding.* 17. A female being capable of contracting a marriage long before the age of twenty-one years, it has been contended that 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 exe-: cuted, and cannot be set aside; the estate and capacities of the parties are altered; and the children born of the marriage become interested. But this doctrine has not been assented to by the Court of Chancery. 18. 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. 19. 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 cove This act was repealed by the statute 53 Geo. III. c. 141. except with respect to annuities granted before the passing of that statute; but it contains a clause respecting infants, similar to the clause in the repealed act. nanting 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 say the whole property is bound, or decree the articles to be specifically performed." 20. Lord Thurlow adhered to this opinion in the following case: A bill was brought on behalf of the infant children of the marriage, after the husband's death, against his widow, praying that marriage articles might be established and specifically performed, entered into before marriage by Patty Clough, the widow, while an infant, and her guardian, for settling her estate, and lands of her husband, as therein mentioned. She, by her answer, insisted that she had done nothing after her full age to affirm the articles, therefore that her estates were not thereby bound; waiving any right under the same in the lands of her late husband. The decree declared that her estate was not bound by the marriage articles; and the bill was dismissed without costs. Clough v. Clough, 4 Bro. R. 510. Tit. 18. c. 2. 21. It follows that a deed executed by a female May v. Hook, infant, though in consideration of marriage, does not $18. bind her, unless she assents to it after the death of her husband. The acceptance of a jointure may, at first Tit. 7. c. 1. § 38. sight, appear to form an exception to this rule. But it has been shown that a woman is not barred of dower by a jointure in consequence of any agreement of hers, but by force of the statute. 22. Lord Hardwicke has said that a female infant may enter into an agreement, before marriage, respecting her personal estate, which will bind her: for such agreement must be in some way beneficial to her, as 1 Bro. R. 111. Otherwise her husband would be entitled to it. Slocomb v. Infant Trustées may convey. 23. Though a male infant cannot in general affect his estate by any deed executed by him, in consideration of marriage,* yet where a male infant married an adult female, who covenanted that her estate should be limited to certain uses, he was held to be bound by such covenant. 24. A male infant married an adult female, who covenanted that her estate should be settled to certain uses. Upon a bill filed by the trustees of the settlement, to have it carried into execution by the husband and wife, the husband insisted that, being an infant when he executed the settlement, he was not bound by it. Lord Thurlow said, if a woman before marriage conveys her property, and agrees to settle her general expectations, when they shall fall in, and this be done without any fraud upon the intended husband, such an agreement must be executed; and the husband, when of age, must answer for her contract. It was not, therefore, necessary to discuss the other question, how far the infant husband could be bound by his own contract; for he went upon the covenant of the wife, who was adult. The husband's covenant operated no more than to show his concurrence, and to take away every imputation of fraud from the transaction. 25. By the statute 7 Ann. c. 19. it is enacted, that * Vide Hollingshead v. Hollingshead, cited 2 P. Wms. 229., where a covenant by a male infant, to execute a power of appointing a jointure, was held good. all infant trustees and mortgagees shall be compelled to make such conveyances and assurances as the Court of Chancery or Exchequer shall direct; which shall be as good and effectual in law, as if the said infants were of full age. But in such cases the neces- 10 Ves, 554. sary costs of the infant will be allowed by the Court. 26. It is now settled that this act only extends to those cases where infants are bare trustees for the cestui que trust,* and bound to convey to them; not to cases where there are any particular trusts to be executed. Att. Gen. v. Pomfret, 2 Cox R. 221. 422. Idiots and Lu natics. 1 Inst. 247. a. Thompson v. Leach, Tit. 16. 27. It was formerly held that neither an idiot nor a lunatic could avoid his own deed. It is however now settled, that idiots are incapable of binding themselves by deed; and also lunatics, unless they agree to such c.6. deed upon recovering their understanding; and that the heir of an idiot or lunatic may avoid a deed executed by him, by pleading his disability. But if an idiot or lunatic makes a feoffment, and delivers Infra, c. 4. seisin in person, it is not absolutely void, but only voidable. 28. By the statute 4 Geo. II. c. 10. idiots, lunatics, and generally all persons who are non compos mentis, or their committees, being trustees or mortgagees, are compellable to convey, under the direction of the Court of Chancery, the estates of which they are seised as trustees or mortgagees only; and all such conveyances are declared to be good and valid. And by the statute 43 Geo. III. c. 75. § 1. the Courts of Chancery of England and Ireland are enabled to order the freehold and leasehold estates of lunatics to be sold, or charged and incumbered by way of mortgage, or otherwise, for the purpose of raising such Vide 59 Geo. III. c. 80. § 2. sums of money as shall be necessary for payment of the debts, and for performing the engagements of such The infant heir of a provisional assignee, under the Bankrupt Acts, is a trustee within the meaning of this statute.-Ex-parte Carter, 5 Modd. 81. |