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.
What conveyances are fraudulent within the Statute.
(u) Douglusse v. Waad, (1659) 1 Ch. Ca. 99 ; but not, of course, where it is post-nuptial.
(x) Hillv. Bishop of Exeter, (1809) 2 Taun. 69.
(y) Barton v. Van lleythvysen,(1853) 11 Ha. 126.
(z) Evans v. E., (1852) 2 Ir. Ch. R. 242 ; Beavan v. Lord Oxford, (1856) 6 D. M. & G. 507 ; 25 L. J. Ch. 299 ; and see cases there cited, and judgment; and Dolphin v. Aylward, (1870) L. R. 4 H. L. 486.
(a) As to whether there is any exception in favour of a charity, see inf. p. 1019.
(J) Martin v. M., (1831) 2 R. & M. 507 ; and there is no exception in favour of the Crown, semble; see Cholmleys ease, (1597) 2 Co. 50 ; Magdalen College ease, (1616) 11 ib. 66 b.
(c) Leech v. L., (1675) 1 Ch. Ca. 249; Wallwyn v. C'outts, (1815) 3 Mer. 707 ; Acton v. Woodgate, (1833) 2 M. & K. 492 ; Garrard v. Lord Lauderdale, (1830) 3 Si. 1 ; (1831) 2 R. & M. 151 ; Wilding v. Richards, (1845) 1 Coll. 655; Smith v.Keating, (1848) 6 C. B. 136 ; Simmonds v. Folks, (1815) 2 J. & L. 489; Mac-hinnon v. Stewart, (1850) 1 Si. N. S.
76, 89 ; 20 L. J. Ch. 49; Griffith v. Bicketts, (1849) 7 Ha. at p. 307 ; Smith v. Hurst, (1852) 10 Ha. 30 ; Godfrey v. Poole, (1888) 13 A. C. 497; 57 L. J. P. C. 78 : on the subject of such deeds, see inf. p. 929 ; but see Langton v. Tracy, (1670) 2 Ch. R. 30, and Sug. 14th ed. 713 ; La Louche v. Earl of Lucan, (1840) 7 C. & F. 772 ; Field v. Lord Donoughmore, (1841) 1 D. & War. 227 ; Bigger* v. Evans, (1855) 5 E. & B. 367 ; Glegg v. Bees, (1871) 7 Ch. 71 ; 41 L. J. Ch. 243. See the judgments in Synnot v. Simpson, (1854) 5 H. L. C. 121 ; Priestley v. Ellis, 1897, 1 Ch. 489 ; 66 L. J. Ch. 240. In Bosher v. Williams, (1875) 20 Eq. 210; 44 L. J. Ch. 419, Malins, V.-C, decided that a conveyance in consideration of a covenant by the grantee to build on the property, for breach of which there was no other remedy than a right to recover merely nominal damages, was voluntary within the meaning of the Statute. Unless this decision can be supported as distinguishable from Price v. Jenkins, (1877) 5 Ch. D. 619 ; 46 L. J. Ch. 805, it is scarcely consistent with the rule that adequacy of consideration will not be inquired into.
(d) Evelyn v. Templar, (1787) 2 Br. C. C. 148 ; Doe v. Roe, (1838) 6 Sc. 525; Carrie v. Nind, (1835) 1 M. &C. 17; 5 L. J. N. S. Ch. 169; a case of copyhold settled by a married woman during coverture. See, too, as to copyholds being within the Act, Doe v. Bottriell, (1833) 5 B. & Ad. 131; 2 L.J.N. S. K. B. 158.
(e) Griffin v. Stanhope, (1618) Cro. Jac. 454 ; Randall v. Morgan, inf. ; Ex p. Hall, (1812) 1 V. & B. 112; see Battersbee v. Farrington, (1818) 1 Sw. 106.
(/) See Randall v. Morgan, (1806) 12 Ves. at p. 74 ; Doe v. Rowe, (1838) 4 Bing. N. C. 737 ; Re Holland, 1902, 2 Ch. 360; 71 L. J. Ch. 518 ; and judgments of L. JJ. in that case ; and see C'aton v. C, (1867) L. R. 2 H. L. 127 ; 36 L. J. Ch. 886 ; and see inf. p. 1040 et seq.
(g) Brown v. Jones, (1744) 1 Atk. at p. 190 ; Stileman v. Ashdown, (1742) 2 ib. 477 ; Ramsden v. Hylton,
(1751) 2 Ves. sen. at p. 308.
(h) Brown v. Jones, sup.
(i) Ball v. Burnford, (1700) Ch. Prec. 113; Parker v. Carter, (1844) 4 Ha. at p. 409 ; Harman v. Richards, (1852) 10 Ha. 81; 22 L. J. Ch. 1066 ; and see Clerk v. Nettleship, (1676) 2 Lev. 148.
(k) See Sug. 14th ed. 718.
(0 Carter v. Hind, (1853) 22 L. T. (O. S.) 116.
(m) Whitbread v. Smith, (1854) 3 D.M. &G.727.740; 23L. J. Ch. 611.
(n) Hewison v. Negus, (1853) 16 Beav. 594 ; 22 L. J. Ch. 655.
(o) Teasdale v. Braithivaite, (1876) 4 Ch. D. 85 ; (1877) 5 ib. 630 ; 46 L. J. Ch. 725 ; Re Foster and Lister, (1877) 6 Ch. D. 87; 46 L. J. Ch. 480; Schreiber v. Hinkel, (1886) 54 L. T. 911 ; 54 L. J. Ch. 241 ; Lynch v. L., (1879) 4 L. R. Ir. 210; Re Bell's Est., (1883) 11 L. R. Ir. 512 ; and see Green v. Paterson, (1886) 32 Ch. D. 95.
Where the owner of a valuable equity of redemption, settled it upon his wife and children at the request of a near relative, and in consideration of a small advance by way of loan, upon the security of his promissory note, to enable him to pay off the arrears of interest on the mortgage debt; the settlement was upheld as against a subsequent mortgagee from the settlor, notwithstanding the inadequacy of the consideration which was not even mentioned in the deed (s).
So, where husband and wife, jointly seised in fee, mortgaged the estate, limiting the equity of redemption to such uses as they or the survivor should appoint, and the property was reconveyed by their appointment to the use of the wife for life, with remainder to the use of the husband for life, with remainder to uses in favour of their issue, it was held that her concurrence in the settlement made by the reconveyance, was a sufficient consideration to support it against a subsequent purchaser for value from the husband (t).
Small unnoticed consideration may support a settlement.
(p) Per V.-C. B. in Teasdale v. Brailhwaitr, (1876) 4 Ch. D. at p. 90 ; and see 5 Ch. D. 631 ; 46 L. J. Ch. 725.
(q) Ford v. Stuart, (1852) 15 Beav. 493 ; 21 L. J. Ch. 514; and see Townendv. Toker, (1866) 1 Ch. 446; 35 L. J. Ch. 608 ; and see Bayspoole v. Collins, (1871) 6 Ch. 228; 40 L. J. Ch. 289.
(r) Stephens v. Olive, (1786) 2 Br. C. C. 90; Worrall v. Jacob, (1817) 3
Mer. 256 ; but the introduction of such a covenant is not, as has been often supposed, essential; hut any other good consideration -will be equally effective: see Frampton v. F., (1841) 4 Beav. at p. 294 ; Wilson v. W., (1845) 14 Si. 405 ; (1848) 1 H. L. C. 538; (1854) 5 H. L. C. 40.
(s) Bayspoole v. Collins, (1871) 6 Ch. 228 ; 40 L. J. Ch. 289.
(t) Atkinson v. Smith, (1858) 3 D. & J. 186; 28 L. J. Ch. 2.
The quantum of consideration is in these cases immaterial, and on this ground it has been held that the assignment of leaseholds, to which a liability, however trivial, attaches, is in itself a valuable consideration, so as to prevent the transaction being voluntary within the Statute (u). This principle has in this country been generally confined to cases coming under the 27 Eliz. (x) ; but it is not, it seems, necessarily confined to such cases (y) : and in Ireland it seems settled, that in all cases the question whether an assignment of leaseholds is for value depends on the precise circumstances of each particular case (s). "The question in each case is whether the assignment was a bargain or a gift. The existence of onerous liabilities from which the assignee covenants to indemnify the assignor may give the transaction of transfer the character of a bargain for good and valuable consideration ; on the other hand, the gift of a valuable interest in lands is not less a gift because the property so given carries with it certain obligations " (a). Thus, where an assignment was made to trustees, by way of settlement, of renewable leaseholds upon trust out of the yearly profits to pay the yearly rent, and then, upon further trusts, it was held that the settlement was voluntary and void as against a subsequent purchaser for value from the settlor (b) ; so, too, an assignment of leaseholds held for an unexpired residue of twenty-five years subject to a yearly rent of 30s., the consideration being-expressed to be natural love and affection and a nominal sum (<••).