Colville v. Ja. 158. Burrell's case, 6 Rep. 72. Notice is immaterial. Gooch's case, 5 Rep. 60. which should defeat an after purchase; but that only which was committed to defraud a former interest. 10. The mere continuance in possession, after the execution of the conveyance, if such possession be consistent with the deed, is not in itself sufficient evidence of an intent to defraud. 11. It is not necessary that the person who sells the land should have made the former conveyance. For it was resolved in 3 Jac. that if a father made a lease by fraud or covin to defraud purchasers, and died; and the son, knowing or not knowing of the lease, sold the land for a valuable consideration, the purchaser should avoid the lease. 12. Although the subsequent purchaser should have notice of the preceding fraudulent conveyance, yet he will be allowed to invalidate it. 13. Thus, Lord Chief Justice Wray has said, if A. seised of land in fee, makes a fraudulent conveyance, to the intent to deceive purchasers against the statute 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. 711. act, notwithstanding his notice : for the act, by express 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. Bullock, 5 Rep. 60. 14. One Bullock made a fraudulent estate of his land within the statute 27 Eliz., and afterwards offered to sell it to Standen. Before assurance thereof, Standen had notice of the fraudulent conveyance, and notwithstanding proceeded and took his assurance 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 frudulent 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. Voluntary conagainst existing veyances void creditors. 15. When the Judges were first called upon to expound these statutes, they appear to have considered all voluntary conveyances, that is, all conveyances not founded on a pecuniary or other valuable considera- 1 Atk. 15. tion, as fraudulent, and consequently void against all existing creditors, as also against future ones. And it is the same whether the debt was contracted by the person who makes the conveyance, or the person from whom he derives the estate. 16. Thus where A. having lands as heir to his father, covenanted for natural love and affection to stand seised to the use of himself for life, remainder 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 A. was fraudulent and void against B., as much as a conveyance by the father, the original debtor, would have been. Apharry v. future ones. 17. It appears however to have been soon established But not against that voluntary conveyances were only void against creditors, where the persons making such conveyances were indebted at the time. And that all voluntary conveyances were not void against future creditors, but only such as were also fraudulent. Thus it is said in a note in Dyer, that if a man conveys land for Holcroft's case, Dyer, 294. b. the preferment of his children; this shall be good if he was not in debt at the time: but if he was in debt, it would be otherwise. 2 Ves. 10. 18. Lord Hardwicke has said, that it is necessary, 1 Atk. 93. 4. on the statute 13 Eliz., to prove that the person making a settlement was indebted at the time, or immediately after the execution of the deed. And that Stephen v. 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 it was shown that he was indebted at the time the conveyance was executed. 19. It was held by Lord Kenyon, when M. R. that a settlement after marriage, in favour of a wife and children, by a person not indebted at the time, was good against creditors, and not within the statute 13 Eliz. And in another case it was declared by Lord Lush v. Wil- Alvanley, when M. R., that to impeach a settlement, made after marriage, under the statute 13 Eliz., the husband must be proved to have been indebted at the 1 Swans. 106. time, to the extent of insolvency. 384. 12 Ves. 147. Battersbee v. Farringdon, Walker v. Burrowes, 1 Atk. 93. Voluntary conveyances void against purchasers. 1 Vent. 194. 2 Ves. 10. 3 Atk. 412. Tot. R. 158. Leach v. Dean, 1 Cha. R. 78. 20. Conveyances of this kind are however rendered void against commissioners of bankrupts, by the statute 1 Jac. I.; unless made upon the marriage of a child, being of the age of consent. 21. Voluntary conveyances are in all cases void against subsequent bonâ fide purchasers, for valuable consideration; for the subsequent conveyance to a purchaser sufficiently proves a fraudulent intent, in making the former conveyance. And although it is said in Bovey's case, that a voluntary conveyance was not, on that account, to be reckoned fraudulent, or to be avoided by a purchaser for a valuable consideration; and this doctrine has been frequently repeated; yet there is no case where 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 voluntary conveyances have always been deemed fraudulent and void, as against subsequent purchasers. 22. The plaintiff's suit was to be relieved upon articles of agreement for the purchase of land from 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. 23. Settlements made upon 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 statute 27 Eliz., as to subsequent purchasers, for valuable consideration. Cro. Ja. 158. 24. Thus, in the case of Colvill v. Parker, Justice Woodie's case, Tanfield cited a case in which it was adjudged, that 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. Moses, 2 Black. 25. J. Reade being tenant for life, with remainder to Goodright v. his daughter Elizabeth in tail; they joined in levying R. 1019. a fine to trustees, in trust for the father for life, and after his decease for the maintenance of Elizabeth and her children during the life of Elizabeth, 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 twenty-one 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 statute 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. notice. 26. Although a purchaser has notice of a voluntary Though with settlement, before he purchases, yet it will not affect him; and he will be allowed to hold the estate against Chapman v. the person claiming under such voluntary settlement. Emery, infra, Evelyn v. Templar, 27. C. Evelyn, by a settlement after marriage, con2 Bro. R. 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 40007. 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 settle ment 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. Doe v. Manning, 9 East, 59. Cormick v. 6 Dow. 60. 28. J. Manning, by indenture dated in 1783, in consideration of love and affection for his mother, 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 18007. 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. |