Section 2

Incapacities to sell of the second description may be considered to consist in, 1st, the want of a transferable (y) title to the property proposed to be dealt with; and, 2ndly, the existence of some relation between the proposed vendor and the purchaser which prevents a sale, except under special precautions; in which cases, however, the transaction is binding on the one party and voidable by the other.

Who are relatively incompetent to sell.

(x) Sutton's Hospital Case, (1612) 10 Co. 1; Riche v. Ashbury Carriage Co., (1874) L. R. 9 Ex. 224, 263; 43 L. J. Ex. 177; and see the judgment of Bowen, L. J., in Baroness Wenlock v. River Dee Co., (1883) 36 Ch. D. at p. 685; affd. 38 Ch. D. 534; 57 L. J. Ch. 946.

(u) Ss. 16, 19 and 259; Companies Act, 1929, ss. 14 and 345.

(z) Ss. 108, 109; Davis v. Leicester Corp., 1894, 2 Oh. 208; 63 L. J. Ch. 440. As to saving provisions, see s. 128.

(y) See A.-g. v. Corp. of Plymouth, (1845) 9 Beav. 67, where a corporation was held incapable in Equity of contracting to sell property, by reason of a duty which it owed in respect thereof to the public.

Upon the first of these sub-divisions we may remark, that a right of alienation is generally incidental to and inseparable from the beneficial ownership of property. Thus a mere declaration annexed to a gift to A., not being a married woman, in fee (z) - or, it is conceived, for any estate (a) - that the property shall not be aliened, or shall not be charged (b), is repugnant and void. The estate cannot be preserved to A. despite his own voluntary acts or involuntary misfortunes (c); but it may be limited to him in such a way as to determine or go over on the occurrence of any thing which, in case he were absolute owner, would operate as a voluntary or involuntary alienation (d). Although a man may, on alienation, qualify the interest of his alienee by a condition to take effect on bankruptcy, he cannot, by contract or otherwise, qualify his own interest by a condition to take effect on his own bankruptcy (e). It seems, however, that he .may do so by a condition to take effect on his own attempted alienation, though for value (f), or on an involuntary alienation by operation of law in favour of a particular creditor (g). Where the condition is in an active form, requiring something to be done by the grantee, and there is no collusive purpose, an act in invitum, such as bankruptcy, or the giving of a warrant of attorney, is not a cause of forfeiture (h). The case of a married woman furnishes an exception from the general rule: she, as we have seen, may be effectually restrained while covert from dealing with even her fee simple estate; and no condition or gift over is necessary to give effect to the restriction, which operates to create in her a personal disqualification to contract or convey the particular property; the provision in such a case being one, not of forfeiture but of preservation; and even this disqualification may, in special cases, be removed by the Court (i). The fact that a woman is a professed nun does not affect her capacity to take or dispose of property (k).

Conditions in restraint of alienation: - how far valid.

(c) Co. Litt. 206 b, 223 a; Jarm. 6th ed., p. 1501 \et seq.; Re Bugdale, (1888) 38 Ch. D. 176; 57 L. J. Ch. 634; Re Ashton, 1920, 2 Ch. 481.

(a) See as to an estate for life, Rochford v. Hackman, (1852) 9 Ha. 475; 21 L. J. Ch. 511; Bird v. Johnson, (1854) 18 Jur. 976.

(b) Willis v. Hiscox, (1839) 4 M. & Gr. at p. 201; Shaw v. Ford, (1877) 7 Ch. D. 669; 47 L. J. Ch. 531; Re Macleay, (1875) 20 Eq. 186; 44 L. J. Ch. 441; Re Elliot, 1896, 2 Ch. 353; 65 L. J. Ch. 753; He Ashton, sup.

(c) See Co. Litt. 223 a; Muschamp v. Bluet, (1617) Bridg. 132; Ware v. Cann, (1830) 10 B. & C.433; Doe v. Pearson, (1805) 6 Ea. 173; Large's case, (1587) 2 Leon. 82; 3 ib. 182; Willis v. Hiscox, sup.; Attwater v. A., (1853) 18 Beav. 330; 23 L. J. Ch. 692; see judgment of Sir G. Jessel in Re Macleay, sup.; but see Re Rosher, (1884) 26 Ch. D. 801; 53 L.j. Ch. 722.

(d) See Jarm. 6th ed. 1501 et seq.; Re Holland, 1902, 2 Ch. 360. (e) See Re Detmold, 40 Ch. D. 585; Re Burroughes-fowler, 1916,

2 Ch. 251.

(f) Knight v. Browne, (1861) 9 W. R. 515; 30 L. J. Ch. 649; Brooke v. Pearson, (1859) 27 Beav. 181.

Upon the subject of incapacity arising from the special relation between the vendor and the purchaser, we may instance the case of an agent for purchase, who cannot sell his own estate to his principal, without acquainting him with the facts (l); and, as a general rule, whenever such a relation subsists between contracting parties as may enable one to exercise undue influence over the other (m), whether the relation be that of parent and child (n), guardian and ward (o), husband and wife (p), legal adviser and client (q), trustee and beneficiary (qq), medical man and patient (r), spiritual adviser and penitent (s), or whatever else may be the nature of the confidential relation, if influence is acquired and abused, or confidence reposed and betrayed, the Court, upon proof of the exercise of such undue influence, will set aside the transaction (t); and the circumstance of the real facts not being stated on the face of the assurances will be considered prima facie evidence of fraud (u).

Undue influence.

(g) Be Detmold, sup.

(h) Avison v. Holmes, (1861) 1 J. & H. 530, 540.

(i) S. 111 of L. P. Act, 1925.

(k) Re Metcalfe's Trusts, (1864) 2 D. J. & S. 122.

(l) Gillett v. Peppercorne, (1840) 3 Beav. 78.; Rothschild v. Brook-man, (1831) 7 L. J. O. S. Ch. 163; affd. 2 Dow. & C. 188; Bentley v. Craven, (1853) 18 Beav. 75; Blake v. Mowatt, (1856) 21 Beav. 603; Armstrong v. Jackson, 1917, 2 K. B. 822.

(m) Huguenin v. Baseley, (1807) 14 Ves. 273.

(n) Hoghton v. H., (1852) 15 Beav. 278; 21 L. J. Ch. 482; see Beanland v. Bradley, (1854) 2 S. & G. 339; Wright v. Vanderplank, (1856) 8 D. M. & G. 133; 25 L. J. Ch. 753; Dimsdale v. D., (1856) 3 Dr. 556; 25 L. J. Ch. 806.

(o) See Wright v. Proud, (1806) 13 Ves. 136.

(p) Bank of Montreal v. Stuart, 1911, A. C. 120; Westen v. Fair-bridge, 1923, 1 K. B. 667.

(q) Gibson v. J eyes, (1801) 6 Ves. 266; Holman v. Loynes, (1854)

It is not every fiduciary relation between a donor and a donee, however, which will induce a Court of Equity to set aside a gift, but only those special relations which raise a presumption of undue influence (x). And even where such special relation exists, it is sufficient if an independent adviser sees that the donor understands what he is doing and intends to do it; he need not advise the donor to do or not to do it. "I do not think," said Fletcher Moulton, L. J., in Re Coomber (y), "that independent and competent advice means independent and competent approval."

Effect of independent advice.

4 D. M. & G. 270; 23 L. J. Ch. 529; Gresley v. Mousley, (1859) 4 D. & J. 78, 94; 28 L. J. Ch. 620; Casborne v. Barsham, (1839) 2 Beav. 76; Broun v. Kennedy,(1863) 33 Beav. 133; affd. 4 D. J. & S. 217; 33 L. J. Ch. 71; Liles v. Terry, 1895, 2 Q. B. 679; 65 L. J. Q. B. 34; Barron v. Willis, 1900, 2 Ch. 121; 69 L. J. Ch. 532; Powell v. P.. 1900, 1 Ch. 243; 69 L. J. Ch. 164, in which case it is suggested as the duty of a solicitor to refuse to act for a voluntary settlor if he persists in acting contrary to the solicitor's advice; see also Wright v. Carter, 1903, 1 Ch. 27; 72 L. J. Ch. 139; Demarara Bauxite Co. v. Louisa Hubbard, 1923, A. C. 673.

(qq) Morse v. Royal, (1806) 12 Ves. 355.

(r) Mitchell v. Homfray, (1881) 8 Q. B. D. 587; 50 L. J. Q. B. 460.

(s) Allcard v. Skinner, (1887) 36 Ch. D. 145; 56 L. J. Ch. 1052; Morley v. Loughnan, 1893, 1 Ch. 736; 62 L. J. Oh. 515.

(t) Smith v. Kay, (1859) 7 H. L. C. 750; 30 L. J. Ch. 95; Harrison v. Guest, (1855) 6 D. M. & G. 424; 25 L. J. Ch. 544; (1860) 8 H. L. Gas. 481; Rhodes v. Bate, (1866) 1 Ch. 252; Tate v. Williamson, (1866) 2 Ch. 55; and see the notes to Huguenin v. Baseley, 1 Wh. & T. L. C. 9th ed., p. 223 et seq.

(u) See Mulhallen v. Marum, (1843) 3 D. & War. 317; Gibson v. Russell, (1843) 2 Y. & C. C. C. 104; Hatch v. H., (1804) 9 Ves. 292; Bent v. Bennett, (1839) 4 M. & C. 269; 8 L. J. N. S. Ch. 125; Harvey v. Mount, (1845) 8 Beav. 439; 14 L. J. Ch. 233; Billage v. Southee, (1852) 9 Ha. 534; 21 L. J. Ch. 472; Baker v. Loader, (1872) 16 Eq. 49; 42 L. J. Ch. 113; Mcpherson v. Watt, (1878) 3 A. C. 254.

(x) Re Coomber, 1911, 1 Ch. 723.

(y) 1911, 1 Ch. p. 730.