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.
Unless there is some special circumstance, such as above suggested, to bring the collaterals within the consideration of the marriage contract, those collaterals are, as a general rule, volunteers, and cannot set up any title against a subsequent purchaser for value from the settlor. There is, however, one very important exception to this rule (r), viz., that where the limitations in favour of collaterals, though not within the marriage consideration, are covered by limitations which are, so that the latter cannot take effect in the form and manner provided without giving effect to the former, then the former cannot, even against a purchaser for value, he treated as void. There is no authority for the proposition that under the 27 Eliz. c. 4, a particular limitation can be picked out of a settlement, or the share of some persons who would take pari passu with others according to the terms of the settlement be picked out, in order to be destroyed in favour of a subsequent purchaser; leaving subsequent or concurrent interests of persons who were within the marriage consideration under the same settlement undisturbed. It was held, in the House of Lords (s), that this was the true ground on which the cases of Newstead v. Searle and Clayton v. Lord Wilton were decided, and not, as was thought in Clarke v. Wright, on the ground, in the first case, that a limitation to children of a former marriage in a settlement by a widow about to marry was prima facie, without reference to more special reasons, outside the Statute, and in the second, that the limitation in a marriage settlement to the children of a possible second marriage without reference to special circumstances was good.
De Mestre v. West.
(I) See Jenkins v. Keymes, (1665-9) 1 Lev. 150, 238 ; Osgood v. Strode, (1724) 2 P. W. at p. 256 ; and Pulvertoft v. P., (1811) 18 Ves. at p. 92. But see Wollaston v. Tribe, (1869) 9 Eq. 44; where, however, the Court considered that the settlor intended to reserve to herself a power of appointment among the collaterals who were the objects of the ultimate trust; Tucker v. Bennett, (1887) 38 Ch. D. 1.
(m) Roe v. Mitton, (1767) 2 Wils. 356.
(n) Doe v. Rolfe, (1838) 8 A. & E. 650 ; and see Tarleton v. Liddell,
(1851) 17 Q. B. 390 ; 4 De G. & S. 538; 20 L. J.Q. B. 507; Wakefieldv. Gibbon, (1857) 1 Gif. 401 ; 26 L. J. Ch. 505.
(o) Sug. 14th ed. 716.
(p) 2 P. W. 255.
(q) See Sug. 14th ed. 716; Lord Tenham's case, (1674) 2 Lev. 105.
(r) See judgment in De Mestre v. West, 1891, A.C. 264; 60 L. J. P. C. 66; Mackie v. Herbertson, (1884) 9 A. C. 303 ; Re Sheridan's Est., (1817) 1 L. R. Ir. 54 ; and Blackburn, J., in Clarke v. Wright, (1861) 6 H. & N. 849.
It seems now settled that there is no exception in favour of any relations as such of the settlor, other than the issue of the marriage, whether children of a former marriage (t), of a possible second marriage (u), illegitimate children (x), or other collateral or stranger whatsoever (y), to place them out of the position of volunteers under the 27 Eliz. c. 4 ; where there are no special circumstances to bring them within the consideration of the mutual contract, and where the effect of defeating their estate is not to defeat that of those who are within the marriage consideration, their estate will be void against a subsequent purchaser for value. The husband is not a purchaser within the Act.
(s) De Mestfr v. West, sup.
(t) Trice v. Jenkins, (1876) 4 Ch. D. 483 ; 4G L. J. Ch. 214 ; reversed on another point, 5 Ch. D. 619; B Cameron and Wells, (1887) 37 Ch. D. 32.
(k) Clayton v. Lord Wilton, 3
(x) De Mestre v. West, sup.
(y) A.-G. v. Jacob Smith, 1895, 2 Q. B. 341, judgment of Lindley, Lopes, and Kay, L. JJ. ; see Smith v. Cherrill (1867)4 Eq. 390 ; 36 L. J. Ch. 738.
But even a settlement in consideration of marriage may be shown to have been executed by all parties for the purpose of defrauding creditors, and therefore to he void as against creditors (a) ; as where a man, on marrying a woman with whom he had cohabited for several years, executed an antenuptial settlement for the sole purpose of defeating his creditors, the wife being implicated in the fraud (b). And where such is the object of the deed, the fact of the marriage being solemnized in pursuance of a long-standing engagement will not validate the settlement (c).
Marriage settlement may be shown to be fraudulent.
"Where A., being indebted, but not to the extent of insolvency, applied to his mother for a loan, which she consented to make, and in fact made, only on condition that he settled his landed property, the settlement was upheld (d) ; but the transaction was entered into in good faith, and there was no intention to defraud creditors. So, where the owner of a freehold estate worth, beyond a mortgage upon it, about 1,300/., at the solicitation of a relative who, as an inducement, lent him 150/. on his promissory note, made a post-nuptial settlement of it on his wife and children, which did not disclose the advance or any other valuable consideration, the settlement was upheld as against a subsequent mortgagee from the settlor (e).
Settlement in good faith by indebted settlor.
Where a settlement is expressed to be made in consideration of 5s., and for divers other good and valuable, but unstated, considerations, it rests with the party setting up the settlement to show their actual existence (/).
A settlement or conveyance, apparently voluntary (g), may be supported by any evidence (consistent with its terms), which proves that it was in fact made for good consideration (h) : so, though originally voluntary, it may be made good by subsequent matter, in the hands of those who have given value on the faith of it; e.g., the marriage of the party claiming under it beneficially (i) - even though its existence be not shown to have been considered in the marriage treaty (k), - or a sale or mortgage, for valuable may be proved.