which they had not by the present bill been called upon to do. The Vice-Chancellor held, that the statute of 27 Elizabeth did not confine the relief to a purchaser by conveyance, but the act supposed there may be a purchaser by contract. The purchaser's right follows as against the representatives of the vendor. His Honor thought that the creditors would have a right to insist upon a specific performance, though the vendor had not; but that point did not arise, for Mr. Watt says he is ready to take the estate if a good title can be made. Besides, the former decree concluded every question now raised. The defendants, the remainder-men, have appealed to the Lord Chancellor against this decision.

In Cormick v. Trapaud (b), the settlor was tenant in tail, with remainders to his brothers in tail, he agreed to settle the estate previously to his marriage, but did not extend the limitations to his brothers; he after marriage settled the estate with remainders to his brothers for life and their issue in strict settlement, and afterwards suffered a recovery. It was held that the limitations to the brothers were voluntary limitations, although the settlor was only tenant in tail.

If a trust be created by a voluntary settlement, the parties entitled under it may file a bill to have the trust carried into execution; but an injunction will not be granted restraining the settlor from defeating the settlement by a sale (c); nor will the pendency of the suit prevent the settlor from selling the property, or the purchaser from filing a bill, in order to enforce his rights under the contract (d).

(b) 6 Dow, 60.

(c) Pulvertoft v. Pulvertoft, 18 Ves. 84.

(d) Metcalfe v. Pulvertoft, 1 Ves. and Bea. 180. The widow

pleaded lis pendens, and the plea was overruled by the Vice-Chancellor, on the 10th August 1813. See 2 Ves. and Bea, 200.

IV. It remains to consider the construction which the part of the statute relating to conveyances with with power of revocation has received. And first it is to be observed, that the statute does not extend to particular powers, as a power to charge 2,000l. on an estate of considerable value, for such a power is not a power within the words of the statute (being for a particular sum) to revoke, determine, or alter the estate (e).

But it is of course quite clear, that a settlement by which a power of revocation, or a power tantamount to it, is reserved to the grantor, is void against a subsequent purchaser(); and no artifice of the parties can protect. the settlement. Therefore, although the power is, conditional, that the settlor shall only revoke on payment of a trifling sum to a third person (g), or with the consent of any third person, who is merely appointed by the grantor (h), in these and the like cases the condition will be deemed colourable, and the settlement will be void against a subsequent purchaser.

But if a settlement is made with a power to the settlor to revoke, so as that the money be paid to trustees to be invested in the purchase of other estates (i), or to revoke with the consent of a stranger bona fide appointed by the parties, and his consent is made requisite, not as a mere colour, but for the benefit of all parties, the settlement will be valid, and cannot be impeached by a subsequent purchaser (j). This was determined in the case of Buller v. Waterhouse (k), which, however, Mr. Powell thought, (e) Jenkins v. Keymis, 1 Lev. v. Blackston, 3 Keb. 526. 150. (1) Doe v. Martin, 4 Term Rep.

Cross v. Faustenditch, Cro. Jac. 180; Tarback v. Marbury, 2 Vern. 510. See Lane, 22.

(g) Griffin v. Stanhope, Cro. Jac. 454.

(h) See 3 Rep. 82, b.; Lavender

39.

(j) See Leigh v. Winter, 1 Jo. 411; and see Lane, 22.

(k) 2 Jo. 94; 3 Keb. 751; and see acc. Hungerford v. Earle, 2 Freem. 120; Lane, 22.

did not settle the point, because all the claimants under the conveyance were purchasers for a valuable consideration (1). But it seems quite immaterial whether the settlement itself is merely voluntary, or upon valuable consideration (m). The statute says, that all conveyances which the grantor has power to revoke, shall be void against subsequent purchasers; and therefore, if parties giving a valuable consideration for a settlement choose to permit the grantor to reserve a power to revoke the settlement, they must suffer for their folly. The grantor, by virtue of the power, may revoke the settlement; and if he sell the estate without revoking it, the statute makes it void. In fact, if we hold, that settlements made upon valuable consideration are not within this provision, we must at the same time admit, that the legislature did not intend to affect voluntary settlements, unless they were actually fraudulent; for voluntary settlements are void against purchasers under the second section of the act, which has already been discussed. This clause therefore would, under the construction put upon it by Mr. Powell, have scarcely any operation.

7

If a man having a power at a future day to revoke a settlement made by him, sell the estate before the day arrive, the settlement will be void against the purchaser at the time when the vendor, according to the terms of the power, might have revoked the settlement (n).

And a settlement made with power of revocation, will be void against a subsequent purchaser, although the grantor release or extinguish the power previously to the sale; otherwise the vendor might secretly release or destroy the power, and then show to the purchaser the con

(1) Pow. on Powers, 330. (m) See acc. Rob. on Vol. Conv. 637.

(n) Mo. 618; 3 Rep. 82, b.; Bridg. 23.

T T

veyance

veyance containing the power of revocation, and so induce him to buy the land (0). In the case, however, in which this was decided, the settlement appears to have been voluntary, and the purchaser had not notice of the power being destroyed. But if a settlement should be made for valuable consideration, with a power of revocation, and the vendor should afterwards release the power for a valuable consideration, it is conceived that a purchaser, subsequently to the destruction of the power, could not prevail over the settlement, more especially if he had notice of the power being released.

The statute, as we have seen, operates conditionally, that is, where the first conveyance is not revoked according to the power. The act has no effect until the donee of the power sell the estate without revoking the first conveyance by virtue of his power. Suppose, then, a vendor professes to execute his power, but it is informally exercised, will the defect be cured by the statute? The legislature intended to protect purchasers against fraudulent settlements with powers of revocation, for it is essential to bring a case within the act, that the estate should be sold, and the first conveyance not be revoked according to the power reserved to the grantor by such secret conveyance. The non-execution of the power is the fraud which the statute intended to avoid. The conveyances against which the act was intended to operate were presumed to be secret. It was not meant to relieve any man who was aware of the existence of the power, and might have required it to be exercised. The statute was not intended to operate as a mode of conveyance. But without insisting that, where a purchaser is aware of the settlement, he must require the power to be executed, it may be urged, that where a purchaser does rest his title on the execution of the power, he

(0) Bullock v. Thorne, Mo. 615.

rejects

rejects the aid of the legislature, and takes his title under and not in opposition to the settlement; and can, therefore, only stand in the same situation as any other purchaser who has unfortunately taken an estate under a power defectively executed. The purchaser can scarcely be held to have a good legal title, unless the vendor not only attempted to execute the power, but actually conveyed the estate to him.

SECTION II.

Of Protection from Charitable Uses.

In the statute of charitable uses (p) is a proviso that no person who shall purchase or obtain, upon valuable consideration of money or land, any estate or interest of or in any lands, &c. that shall be given to any of the charitable uses mentioned in the statute, without fraud or covin, (having no notice of the same charitable uses), shall be impeached by any decrees of the commissioners therein mentioned.

A purchaser who hath bought for an inadequate consideration is not within this proviso; and the adequacy of the consideration is measured according to the rule of the civil law; but if one purchase lands under half the value, and sell to another upon good consideration bona fide, the fraud is purged (q).

If a rent-charge be granted out of land to a charitable use, and the land is afterwards sold for valuable consideration to one who has no notice, it has been said, the rent remains; because the purchase was of another thing that

(p) 43 Eliz. c. 4.

(q) Vide supra, p. 241; Duke, 177.

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was