This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Notice of a conveyance which comes within the provisions of the 27 Eliz. c. 4(e), as being made for the purpose of defrauding purchasers, or as reserving a power of revocation to the grantor (f), is immaterial; and the purchaser's title will be good at Law and in Equity (g) : and the volunteers have no claim against the purchase-money paid to the settlor (h). And though the contract cannot be specifically enforced by the settlor against a proposed purchaser, on the ground that Equity will not assist him to defeat his own act in making the settlement (i), yet it may be enforced by the purchaser against the settlor, or, if he die before completion, against the volunteers (k). Where a mortgagee of property previously subjected to a voluntary settlement by the mortgagor, subsequently obtains from the mortgagor another security, the statute of Elizabeth does not enable him to consolidate as against the volunteers (/). This case affords an example of the tendency of modern decisions to confine the doctrine of consolidation within the narrowest possible limits. It has also been decided that the volunteers are entitled to marshal the mortgagees of the estate under a subsequent mortgage so as to have the mortgage discharged as far as possible out of the unsettled estate (m). By the Voluntary Conveyances Act, 1893, a voluntary conveyance, whether made before or after the passing of the Act, if made in good faith without fraudulent intent, is not to be deemed fraudulent within 27 Eliz. c. 4, by reason of any subsequent purchase for value (n) : the Act does not apply to dispositions to a purchaser for value before the passing of the Act, i.e., before the 29th June, 1893 (o).
Notice of fraudulent conveyances, etc, immaterial.
(b) See and consider Greenaway v. Hart, (1854) 14 C. B. 340; 23 L. J. C. P. 115. Since the Real Property Act, 1845, s. 5, a person not named as party to a deed may take the benefit of a covenant or condition respecting hereditaments.
(c) S. 18 ; and see s. 10.
(d) Municipal Permanent Bldg. Soc. v. Smith, (1888) 22 Q. B. D. 70 ; 58 L. J. Q. B. Gl ; Wilson v. Queen's Club, 1891, 3 Ch. 522; 60 L. J. Ch. 698 ; generally, see Coote on Mortgages, 7th ed. 705 et seq.
(e) See 39 Eliz. c. 18, s. 31.
(/) See s. 5.
(g) Gooch's case, (1590) 5 Co. 60 ; Evelyn v. Templar, (1787) 2 Br. C. C. 148; Buckle v. Mitchell, (1812) 18 Ves. 100.
(h) Daking v. Whimper, (1859) 26 Beav. 568.
(i) Smith v. Garland, (1817) 2 Mer. 123 ; Johnson v. Legard, (1822) T. & R. 281 ; Clarke v. Willott, (1872) L. R. 7 Ex. 313 ; 41 L. J. Ex. 197 ; Re Briggs and Spicer, 1891, 2 Ch. 127, 134; 60 L. J. Ch. 514, a case relating to s. 47 of the Bkcy. Act, 1883, and subsequently overruled, sec inf. p. 1033.
Effect of Voluntary Conveyances Act, 1893, on 27 Eliz. c. 4.
A legal mortgagee is, of course, a purchaser pro tanto (p) : so, also, is an equitable mortgagee by deposit, with memorandum of agreement for a legal mortgage (q) : but a mortgage made seven years after the advance which it purported to secure, in pursuance of no agreement to that effect, and without any pressure from the lender, was held void as against a subsequent mortgagee for value (r). A lessee at rack-rent (s) is within the Statute, but not a lessee without fine or rent (t) : so, also, a purchaser under an ante-nuptial settlement (u); or one who, in consideration of the conveyance, waived a disputed right (x) : and, in one case, a person claiming for value under a general assurance of " all the estate" of the conveying party, was held to he within the Act (y). But a registered judgment creditor is not a purchaser within the meaning of the Statute (z).
Who are purchasers within the 27 Eliz. c. 4.
(k) Suckle v. Mitchell, sup. ; Rosher v. Williams, (1875) 20 Eq. 210 ; 44 L. J. Ch. 419.
(I) Re Walhampton Est., (1884) 26 Ch. D. 391 ; 53 L. J. Ch. 1000.
(m.) Hales v. Cox, (1863) 32 Beav. 118 ; Mallot v. Wilson, 1903, 2 Ch. 494 ; 72 L. J. Ch. 664.
(n) S. 2.
(o) S. 3.
(p) Doe v. Webber, (1834) 1 A. & E. 733 ; 3 L. J. K. B. 208 ; Chapman v. Emery, (1774) Cowp. 279 ; Dolphin v. Aylward, (1870) L. R. 4 H. L. 486,499.
(q) Lister v. Turner, (1846) 5 Ha. 281; 15 L. J. Ch. 366; Edev.Knowles, (1843) 2 Y. & C. C. C. 172 ; but the deeds may be recovered at law, Ker-rison v. Dorrien, (1832) 9 Bing. 76 ; 1 L. J. C. P. 166.
(r) Cracknall v. Janson, (1879) 11 Ch. D. 1 ; 48 L. J. Ch. 168.
(s) Gooclright v. Moses, (1775) 2 W. Bl. 1019; and see this case discussed, (1877) 6 Ch. D. 90.
(t) Upton v. Basset, (1595) Cro. Eliz. 445, and cited in Twyne's case, 1 Sm. L. C. 11th ed. at p. 8.
Under the 27 Eliz. c. 4, apart from the Voluntary Conveyances Act, 1893, a mere voluntary conveyance (unless, perhaps, it be in favour of a charity (a) ) is fraudulent, even though made by the direction of the Court (b) : e.g., a, conveyance in trust to sell, and to pay creditors who are not parties to the arrangement (c) ; or a post-nuptial settlement upon the settlor's wife, husband, or family (d), unless made in pursuance of an ante-nuptial agreement (e), and of which there is a note or memorandum in writing sufficient to satisfy the Statute of Frauds (f), or in pursuance of a further portion (g), or of an agreement to pay a further portion which is afterwards paid (h), or (on a settlement of the husband's estate) of the wife relinquishing her interests under an existing settlement (i), or her jointure or dower (k) (if married before the Dower Act came into operation) ; or of her mortgaging her separate estate (/), or property over which she has a joint power of appointment (m), to pay his debts ; or (on a settlement of the wife's estate) of the husband's relinquishing his estate injure mariti(n). The true test of the validity of all such transactions is whether there was a bond fide bargain by which the respective rights of husband and wife were altered (0) ; " if husband and wife, each of them having interests, no matter how much, or of what degree, or of what quality, come to an agreement which is afterwards embodied in a settlement, that is a bargain between husband and wife, which is not a transaction without valuable consideration " (p). If a stranger concur, and provide for payment of the settlor's debts, he will be considered to have purchased the benefit of the settlement for the settlor's family (q) ; and, in separation deeds, the covenant usually entered into by the trustees to indemnify the husband against the wife's debts, will as against creditors (>*), and also, it is conceived, as against subsequent purchasers, support any further settlement he may make upon her.