Use of third Per

sons.

§ 8. A Purchase originally made in the Name and for the Use of third Purchases in the Persons does not fall directly within the Operation of these Statutes, Lady Name and for the Gorge's Case, Cro. Car. 550. How far such Purchases may be affected by the general Rules of Courts of Equity under particular Circumstances is a Question foreign to the present Enquiry, they are expressly within the Statute 1 Jac. 1 c. 21, respecting Bankrupts, and 13 Eliz. c. 4, respecting the Debts of the King's Accountants.

cumstances.

§ 9. Conveyances originally defeasible may become valid by CircumConveyances onstances occurring subsequently. In Prodgers v. Langham, 1 Sid. 133, it is ginally defeasible laid down, that although a Deed be fraudulent in its Creation, and voidable by rendered valid by a Purchaser, yet it may become good by Matter ex post facio-as if a Man subsequent Ci makes a Feoffment by Covin, and the Feoffee makes a Feoffment over upon valuable Consideration, the Feoffee of the first Feoffee shall retain the Land, and not the Feoffee of the first Feoffor. See also, to the same Effect, Andrew Newport's Case, Skinner, 423-S C. by the Name of Swartle v. Williams, 3 Lev. 387-Wilson v. Wormal, Godb. 161.

In the before mentioned Case of Prodgers v. Langham, a voluntary Settlement upon a Daughter was supported by the Daughter's subsequent Marriage. So in Kirk v. Clark, Prec. Ch. 275, where the Father told the Friends of the Son's Wife, that he had already settled the Premises upon the Son-and an express Settlement was also made of other Premises. So where a Daughter, in whose Favour a Settlement was made, married a Person of Fortune, who was before Marriage advised by Counsel, that the Portion was sufficiently secured.-E. I. Company v. Clavel, Prec. Ch. 577-and see the Observations in Doe v. Routledge, Cowp. 705."

§ 10. With Respect to the Purchaser intitled to object to a prior voluntary What Persons ave, Settlement as fraudulent, it has been ruled, that this Objection is competent to as Purchasers, in Persons claiming under a Settlement upon a subsequent Marriage-Douglas v. titled to object to Ward, Ch. Cas. 99; to a Morgagee-Saunders v. Dehew, 2 Vern. 272; Conveyances a Lessee for Years at Rack-rent, or upon Payment of a Fine-Shaw v. Standish, fraudulent, 2 Vern. S27-Goodright v. Moses, 2 Bl. 1019 Cross v. Fausterditch, Cro. Jac. 181; a Purchaser of Timber-Hatton v. Neale, Bull. N. P. 261; a Reversioner purchasing a Term, of which there has been previously a fraudulent Assignment, said per Roberts, pa. 376, to be cited from some old Books in Justice Warburton s Reports. To these may be added, the late Case of Hill v. the Bishop of Exeter, 2 Taunt. 69, already cited, of a Person to whom a Release was made of a disputed Right.

But the Conveyance is good as against a subsequent voluntary Settlement upon Wife or Children.-Needham and Beaumont's Case, 3 Rep. 83. 233.Upton v. Basset, Cro. Eliz. 445. It seems also, that the second Purchase must be perfectly fair in Respect of Value, and not a mere Colour, as to which see 3 Rep. 83-Doe v. Routledge, Cowp. 705—although mere Inadaquacy may not be an Objection. A Purchaser for valuable Consideration, under a second voluntary Conveyance, cannot impeach the Title under the first. Dame Burg's Case, Moor, 833, where a Person having a real Lease for sixty Years forged a Lease for ninety, which he sold with all his Interest in the Land, it was ruled, that as he did not contract for the true and lawful Interest, which was not known, he was not a Purchaser within the Statutealthough, by the general Words, the true Interest would pass.-Co. Lit. 36.

Mr. Roberts observes, that it may be doubted whether that constructively valuable Consideration, which has in some Cases singly prevailed, in others cumulatively tended to support precedent Conveyances against subsequent Purchasers, will arm the Purchaser against a prior voluntary Deed, with Power sufficient to overthrow it. p. 388. From the general Tenor of the Cases, I should conceive, that it evidently would not, especially according to the Opinions which have been recently expressed with Regard to the true Co struçijon of the Statute, considered independently of Authority.

Of Powers of Revocation.

as Assets.

§ 11. Upon the 5th Section of 27 Eliz. respecting Powers of Revocation, the following Points have occurred:-It does not extend to the Power of charging the Estate with a particular Sum of Money-Jenkins v. Keymis, 1 Lev. 150. It extends to all Cases where in Effect the Power is given to the Grantor although accompanied by a colourable Condition, as the Payment of a small Sum of Money to a Stranger, or the Consent of a third Person merely appointed by the Grantor-Cross v. Fausterditch, Cro. Jac. 180Tarback v. Marbury, 2 Vein. 510–Griffin v. Stanhope, Cro. Jac. 454Lavender v. Blackston, 3 Keble, 526, and see 3 Rep. 82; but it is otherwise when the Money is to be paid to Trustees, to be vested in other Estates-Doe v. Martin, 4 T. R. 39; or where the Consent required is that of a third Person, bona fide, appointed by all Parties.-See Leigh v. Winter, 1 Jones, 411Buller v. Waterhouse, Sir Thos. Jones, 94, 3 Keb. 75-Hungerford v. Earle, 2 Freem. 120. It is immaterial, that the Settlement containing the Power of Revocation is made upon valuable Consideration-as to which see Roberts, 637-Sugden, on Powers, 338. If a Person, having Power to revoke at a future Day, conveys upon valuable Consideration before the Day, the Settlement will be void from the Time when he might revoke.-Bullock v. Thorne, Moor, 611-Twyn's Case, 3 Rep. 82-Garth v. Ersfield, Bridge, 22 The Statute operates, although the Power is previously released-Bullock v. Thorne, Moor, 615-but it may be otherwise if the Release was for valuable Consideration, or the Purchaser had Notice It seems that the Statute does not operare, if the Grantor by the Conveyance professes to execute the Power of Revocation, and does so informally.-See Sugden, on Powers, ch. 8, from which this Paragraph is abridged.

§12. Where Land has been fraudulently aliened by the Ancestor, it is Land fraudulently in Respect of Creditors regarded as Assets by Descent in the Hands of the aliened descends Heir-therefore, upon an issue whether T. H. deceased was seised, the Jury having found that T. H. enfeoffed J. H. before the Judgment upon which the Scire Facias was issued out, the Court gave Judgment, that T. H. still remained seised as to Creditors by Covin.-Humberton v. Howgil, Hob. 72, See also Shep. Touch. 66.

In Parslow v. Weedon, Eq. Ab. Creditor and Debtor, E pl. 7, Lord Macclesfield is reported to have said, that any Settlement or Disposition which a Man makes in his Life-time, whether voluntary or not, shall be good against Creditors, for that was not provided against by the Statute against fraudulent Devises-but a strong Dissatisfaction was expressed with this Opinion, in Brunsden v. Stratton, Prec. Ch. 521-Jones v. March, Ca. Temp. Talb. 64where the Lord Chancellor said, that Mr. Vernon had always grumbled at the Determination of that Case, and never forgave Lord Macclesfield; saying, it was contrary to the constant Practice of the Court. It is clear, that the Statute of fraudulent Devises, to which Lord Macclesfield referred, was wholly foreign to the Subject, which depended upon the Common Law and the Statutes at present under Contemplation. The Statute of fraudulent Devises left the Law as to Deeds as it stood before, and the Principle to be collected from all the Authorities is, that if a Deed was void against Creditors in its Inception, it does not become valid by the Death of the Maker. The Cases of Stileman v. Ashdown, 2 Atk. 477-Russell v. Hammond, 1 Atk. 13—Beaumont v. Thorp, 1 Ves. 27-Lord Townsend v. Windham, 2 Ves. 1-Hylton v. Biscoe, 2 Ves. 305-most of which have been noticed in the preceding Part of this Note,-all proceed upon taking for granted the opposite Opinion to that expressed in Parslow v. Weedon.

§ 13. With Respect to Assignments of personal Property, (independently Of Assignments of any Consideration founded upon actual Fraud, with Respect to which of personal Proevery Case resolves itself into a Matter of Fact) the Retention of Possession perty. of the Property assigned, is, generally speaking, held to induce a legal Presumption of Fraud.-In Twyne's Case, 3 Rep. 80, the Retention of Possession by the Vendor of the Goods, was only regarded amongst the Circumstances as constituting a Badge and Fraud;-but in Edwards v. Harben, 2 Term Rep. 587, it was established as a general Rule, that unless Possession

accompanies and follows the Deed, it is fraudulent and void. This is subject to Exceptions in Cases when the Retention of the Possession of the Goods is connected with the Object of the Deed;-as in Cases of Goods settled upon Marriage, (as to which see Lord Cadogan and Kennett, Cowp. 432) and in other Cases referred to in the Judgment of Edwards and Harben. The actual Delivery of the Goods may be dispensed with when the Nature of the Subject renders it impracticable; or when Acts have taken Place which are equivalent, as in case of Assignment of Goods at Sea, the paper Documents being delivered over; the Delivery of the Key of a Warehouse in which the Goods are contained ;-and other Cases which have frequently been decided, with Reference to the Bankrupt Laws; as to which it may be observed, that whatever is Sufficient to avoid the Effect of the Statute of James, concerning reputed Ownership, applies a fortiori to repel the Imputation of a Fraud from a Retention of Possession in Respect to the Statute 13 Eliz. c. 5.

In Dewey v. Baynton, 6 East, 257, Pictures and other Property at Wendover Castle, belonging to Lord Arundel, were, in Consideration of Lady Arundel relinquishing some Interests under a Settlement in Favour of Lord Arundel, assigned to Trustees for the seperate Use of Lady A. and they continued in Possession of Lord A. without any Inventory. In an Action against the Sheriff for a false Return, it was left to the Jury whether the Trust Deeds were a Contrivance to defraud Lord 4.'s Creditors, or whether they were a bona fide Transaction;—and a Verdict being found in Favour of the Transac tion, a new Trial was granted in order to bring that Point more distinctly before the Jury;-but it is manifestly the Opinion of the Court, that the mere Possession of the Husband being consistent with the Object of the Deeds, was not in itself sufficient to annul the Transaction, so as to render the Goods liable to an Execution, at the Suit of the Creditors of Lord A.-The Jury upon the second Trial having found a Verdict for the Creditor, upon an Application for an Injunction, the Lord Chancellor expressed his Opinion very fully in Favour of the general Nature of the Transaction; and directed a Trial in the Common Pleas for the Purpose of settling the Question.-Lady Arundel v. Phips, 10 Vesey, 139. It is however not very easy to discern any Ground of Equity upon which the Court of Chancery were authorized in this Case to exercise a Controul over the Proceedings of a Court of Law, upon what was considered by itself so entirely a legal Question, as to be referred to another Court of Law for its Decision. The ultimate Event of the Case does not appear in the Books.

The Expression of accompanying and following the Deeds, which is applied to the Class of Cases at present under Discussion, requires some Consideration with Respect to its Import and Extent; and I take it never to have been held, that the mere Occurrence of any Interval of Time between the Execution of the Deed and the taking of Possession under it, shall at any subsequent Period, however remote, be deemed sufficient to taint the Transaction with Fraud; and I would submit, that if the Possession is taken in mere Pursuance of the Deed, before any other Rights or Interests have intervened, and at a Period when the entire Transaction would have been valid and effectual, such Possession would be sufficient; and this seems to be implied by the Case of Jones v. Dwyer, 15 East, 21, where Goods lying at a Wharf were purchased in December, and an Order given for their Delivery, and no Transfer was obtained upon such Order until the June following, which being before the Bankruptcy of the Seller, the Court decided in Favour of the Title of the Vendee.-The Statute of 13th Eliz. was referred to; but the Discussion principally leaned upon the Statute 21 Ja. I. respecting reputed Ownerships in Cases of Bankruptcy.

The Cases upon the Statute of 13 Eliz. relates only to Property assigned without Delivery of Possession from the Person to whom it originally belonged; for it is perfectly clear, that the mere Possession of personal Property, concludes nothing with Respect to the Right.

And when there has been bona fide a notorious Charge of Property, the subsequent Possession of the Goods by the Person to whom they belonged, it does not bring the Case within the Statute; accordingly in Cole v. Davies, 1 Lord Raymond, 724, it was said by Holt, Ch. Justice, that the Goods of A are seized upon fi. fa. and sold to B bona fide upon valuable Consideration, though B permitted A to have Goods in his Possession, upon Condition that A should pay to B the Money as he should raise it by Sale of the Goods, this

will not make the Execution fraudulent; and in such Case, a subsequent Act of Bankruptcy will not prevent the Sale.

[NOTE] In this Case the Provision respecting reputed Ownership, in Case of Bankruptcy, is not sufficiently attended to.

And in the modern Case of Kidd v. Rawlinson, 2 B. & P. 59, the Goods of A being taken under an Execution, were purchased at a public Auction by B, who suffered A to continue in Possession, and to carry on Business, and A having afterwards executed a Bill of Sale of the Goods to C, it was ruled that B was intitled to them as against C; and it was laid down that it B had lent A Money to buy the Goods, and had taken a Conveyance of them, or a Security for his Debt-this arising out of the mere Fact of lending his Money, leaving A in Possession of the Goods-it would not have been a fraudulent Act. And in a very late Case, where a Person assigned his Effects to his Trustees; and the Son, in order to accommodate his Mother, became the Purchaser of the household Goods at a fair Appraisement, and suffered the greater Part of them to remain in the House with his Mother, who continued to reside there, and take Lodgers as before;-it being found by the Jury that the Change of Property was notorious, and that the Assignment was not executed with an intent to defeat either the general Body of Creditors, or any particular Creditor; the Title of the Son was sustained against a subsequent Execution by a Creditor of the Father. Leonard v. Baker, 1 M. & S. 251.See also on this Point, Bull. N. P. 258. Meggitt v. Mills, 1 Ld. Raym. 286. and the late Case of Reed v. Blades, 5 Taunt 212.

It is agreed, that an actual Intention to defraud Creditors will be sufficient to invalidate a Transaction, which in other Respects would be good. Without entering into an enumeration of the Cases applicable to this Subject, I shall barely refer to Cadogan v. Kennett, Cowp. 432, in which, upon a Settlement of Goods made previous to Marriage, Lord Mansfield said "The Question in every Case is, whether the Act done is a bona fide Transaction, or whether it is a Trick and Contrivance to defeat Creditors."-And Lord Ellenborough in Dewey v. Baynton, 6 East, 257, already referred to, left the Question to the Jury in the precise Terms cited from Cadogan and Kennett, and the Principle was recognized by the Court, though a new Trial was granted for the Purpose of bringing the Facts more distinctly before the Jury -See the Observations of Lord Eldon on this Subject, in Lady Arundel v. Phipps, 10 Vesey, 139.

See Estwick v. Cailland, 5 T, R. 420, in which a Conveyance by Lord Abingdon of Real and Personal Property in Trust, after deducting Expences to pay one Moiety of the Profits to Lord A. for his own Use, and the other to certain Creditors named in a Schedule, was held good, the Intention of Fraud as against the other Creditors being negatived by the Jury. There was in this Case some apparent Possession in Lord A. after the Deed, which the Court thought sufficiently explained. Buller J. observed, "Fraud is sometimes a Question of Law, sometimes a Question of Fact, and sometimes a mixed Question of Law and Fact. On the whole it appears to me, that the Deed, taken by itself, is a good and valid One; and that there are no extrinsic Circumstances to shew that any Fraud was intended."

As to particular Badges of Fraud, and the Effect of fraudulent Transaetions, to deceive the Crown of Forfeitures, &c. see Roberts, ch 5, § 3.

397

PART II. CLASS VIII.

LEASES,*

(And herein of other Dispositions by Spiritual Persons.)

No. 1.

32 Henry VIII. c. 28.-Lessees to enjoy the Farm against

WH

the Tenants in Tail.

Right of their

which void.

HERE great Number of the King's Subjects have heretofore 32 H. VIII. c 28. taken Leases of Lands, Tenements and other Hereditaments, Leases made by 'for Term of Years, and divers of them for Term of Lives, and have Tenants in Fee or 'given and paid great Fines and great Sums for the same, and also Fee-tail, in the have been at great Costs and Charges, as well in and about great Wives or Church'Reparations and Buildings upon their said Ferms, as otherwise con- es, which be good, 'cerning their said Ferms; yet notwithstanding the said Fermors, 2 Roll. 169, ' after the Deaths or Resignations of their Lessors, have been and be 352, 403, 407. daily with great Cruelty expulsed and put out of their said Ferms and Savil, 85. Takings, by the Heirs or Successors of their said Lessors, or by such Hutton, 84. • Persons as have Interest therein after the Deaths or Resignations of 1 Leon. 59, 148. their said Lessors, by Reason of Privy Gifts of Intail, or for that 3 Leon. 156. 'the Lessors had Nothing in the Lands, Tenements or other Heredi'taments so letten, at the Time of the Leases thereof made, but only

Tenant in Tail, or

in the Right of their Wives, or such other like Cause, to the great Impoverishment, and in Manner utter Undoing of the said Fermors:" For Reformation whereof, be it ordained, established and enacted by the King our Sovereign Lord, the Lords Spiritual and Temporal, and Leases made by the Commons, in this present Parliament assembled, and by Authority by him which is of the same, That all Leases hereafter to be made of any Manors, seised in the Right Lands, Tenements, or other Hereditaments by Writing indented under of his Wife, or Seal for Term of Years, or for Term of Life, by any Person or Persons 1 Lev. 112. being of full Age of twenty-one Years, having any Estate of Inherit- Cro. Jac. 173. ance either in Fee-simple or in Fee-tail, (1) in their own Right, or in 8 Co. 34. the Right of their Churches (2) or Wives, or jointly with their Wives, 10 Co. 60. of any Estate of Inheritance made before the Coverture or after, shall Bro.Accept.f.9. be good and effectual in the Law against the Lessors, their Wives, Dyer, 51, 363.

(*) For the general Exposition of these Statutes see Bacon's Abridgement, Title, LEASES.

(1) A Lease by Tenant in Tail, according to the Statute, does not bind the Reversion or Remainder.-1 Inst. 44, a. A Lease according to the Statute, with Warranty, is not a Discontinuance-but a Lease for Lives with Warranty, not according to the Statute, is so.-1 Inst. 333, a.-Vaughan's Rep. 383Walter v. Jackson, 1 Rol. Abr. 633.

(2) This extends to Prebendaries, Chancellors, Archdeacons, Precentors, &c.-Acton v. Pritcher, 4 Leon, 51-Watkinson v. Maine, Cro. Eliz. 350--Bis v. Holt, Lev. 112, Sid. 158.

Church, &c

Co. Lit. 44.