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.
Consideration not expressed
(a) Colombine v. Penhall, (1853) 1 S. & G. 228 ; Re Pennington, (1887) 59 L. T. 774.
(b) Buhner v. Hunter, (1869) 8 Eq. 46; 38 L. J. Ch. 543 ; Aeraman v. Corbett, (1861) 1 J. & H. 410; 30 L. J. Ch. 642.
(c) Fraser v. Thompson, (1859) 4 D. & J. 659.
(d) Thompson v. Webster, (1859) 4
D. & J. 600 ; 7 Jur. N. S. 531, and see sup. p. 924, and comments on Thompson v. Webster, in Smith v. Cherrill, (1867) 4 Eq. 390.
(e) Bayspoole v. Collins, (1871) 6 Ch. 228 ; 40 L. J. Ch. 289.
(/) Kelson v. K., (1853) 10 Ha. 385 ; 22 L. J. Ch. 745.
(g) As to when a voluntary settlement cannot be enforced by the apparent beneficiaries, see Ward v. Andconsideration, by the voluntary grantee (/) ; or, probably (in the case of a creditor's deed), the fact of creditors having, upon the faith of it, refrained from enforcing their remedies against the debtor (m), may be sufficient to support the deed. The principle upon which evidence is admitted to show that the consideration expressed on the deed is not the real or the only consideration is not very clear. " It is very difficult to understand how that is not in contradiction of the deed. The transaction, purporting to be represented by an entire instrument, is the conveyance of an estate for natural love and affection; and then it is said that there is some other consideration. However, there is the rule in law and in equity that you can give evidence of that other consideration. But such evidence must be to the utmost extent satisfactory and conclusive. It really must be proved beyond the shadow of a doubt that there was that additional consideration which the parties did not choose to express on the face of the instrument itself" (n).
Settlement may be supported by matter ex post facto.
Land, (1845) 8Beav. 201; 14 L.J.N. S. Ch. 145, and cases collected in reporter's note, 213 ; also Searle v. Law, (1846) 15 Si. 95 ; 15 L. J. Ch. 187 ; Bridge v. B., (1852) 16 Beav. 315 ; 22 L. J. Ch. 189 ; Gilbert v. Overton, (1864) 2 H. & M. 110 ; 33 L. J. Ch. 683 ; Trice v. T., (1852) 1 D. M. & G-. 308 ; Beech v. Keep, (1854) 18 Beav. 285 ; 23 L. J. Ch. 539 ; Sewell v. Moxsy, (1852) 2 Si. N. S. 189 ; Cox v. Barnard, (1850) 8 Ha. 310 ; Jones v. Loci-, (1865) 1 Ch. 25 ; 35 L. J. Ch. 117 ; ct contra, Ellison v. E., (1802) 6 Ves. 656 ; 2 Wh. & T. L. C. 7th ed. 835 ; Sloane v. Cadogan, (1808) Sug. 14th ed. 719 ; Fortescue v. Barnett, (1835) 3 M. & K. 36 ; 3 L. J. N. S. Ch. 106 ; Wheatley v. Purr, (1837) 1 Ke. 551 ; and Blakely v. Brady, (1839) 2D.& Wal. 311 ; Beatson v.B., (1841) 12 Si. 281 ; Kekewich v. Manning, (1851) 1 D.M. &G. 176; 21 L. J. Ch. 577; Voyle v. Hughes, (1853) 2 Sm. & G. 18 ; 23 L. J. Ch. 238; Donaldson v. D, (1854) Kay, 711 ; 23 L. J. Ch. 788 ; Dening v. Ware, (1856) 22 Beav. 184 ; Re Earl of Lucan, (1890) 45 Ch. D. 470 ; 60 L. J. Ch. 40 ; and see Airey v. Hall, (1856) 3 Sm. & G. 315, and Kiddill v. Fa melt, (1857) ib. 428, where the stock, the subject of settlement, had not been actually transferred at the settlor's death ; Dilrow v. Bone, (18G2) 8 Jur. N. S. 276 ; Richardson v. R., (1867) 3 Eq. 686; 36 L. J. Ch. 653, where the promissory notes comprised in the deed were never indorsed over; Re Way's Trusts, (1864) 2 D. J. & S. 365 ; 34 L. J. Ch.
49, where the settlor retained the deed which was never acted on, or communicated to the volunteers or the trustees, and afterwards destroyed it, and yet it was held to be an effectual disposition of the fund : ef. Hall v. H, (1873) 8 Ch. at p. 433; 42 L. J. Ch. 444, as to voluntary assignment of an expectancy, see Be Ellenborough, 1903, 1 Ch. 697; 72 L. J. Ch. 218.
(h) See Ferrars v. Cherry, (1700) 2 Vern. 384 ; Tott v. Todhanter, (1845) 2 Coll. 76 ; Clifford v. Tarrell, (1841) 1 Y. & C. C. C. 138 ; 14 L. J. Ch. 390; Harmon v. Richards, (1852) 10 Ha. 81 ; 22 L. J. Ch. 1066 ; Re Holland, 1902, 2 Ch. 360, 388; 71 L. J. Ch. 518; Bayspoole v. Collins, (1871) 6 Ch. 228 ; 40 L. J. Ch. 289 ; and see as to connecting deeds, as being parts of one transaction, S. C, and Ford v. Stuart, (1852) 15 Beav. 493; 21 L. J. Ch. 514; Whitbread v. Smith, (1854) 3 D. M. & G. 727; Pryor v. T., (1864) 12 W. K. 781; 33 L. J. Ch. 441.
(i) Kirk v. Clark, (1708) Ch. Prec. 275 ; East India Co. v. Clavel, (1714) ib. 377, and other cases cited, 3 Bac. Abr. tit. Fraud, C. 781 et seq. ; Johnson v. Legard, (1822) T. & R. 281, 294 ; Pagne v. Mortimer, (1859) 4 D. & J. 447 ; 28 L. J. Ch. 716 ; Halifax Joint Stock Bkg. Co. v. Gledhill, 1891, 1 Ch. 31 ; 60 L. J. Ch. 181.
(k) See Broun v. Carter, (1801) 5 Ves. 862, 876; Roddy v. Williams, (1845) 3 J. & L. 1, 17.
The distinction between deeds vesting property in trustees upon trust for the benefit of particular persons, - which deeds cannot be revoked, altered, or modified by the party who has created the trust; - and deeds purporting to be executed for the benefit of creditors, - where the question whether the trusts can be revoked, altered, or modified, depends upon the circumstances of each particular case - has been laid down as follows; viz., - In cases of trust for the benefit of particular persons the party creating the trust can have no other object than to benefit the persons in whose favour the trust is created; and, the trust being well created, the property in Equity belongs to the cestuis que trust as much as it would belong to them at Law, if the legal interest had been transferred to them. But in cases of deeds purporting to be executed for the benefit of creditors, and to which no creditor is a party, the motive of the party executing the deed may have been, either to benefit his creditors, or to promote his own convenience; and the Court there has to examine into the circumstances, for the purpose of ascertaining what was the true purpose of the deed : and this examination does not stop with the deed itself, but must be carried on to what has subsequently occurred; because the party who has created the trust may, by his own conduct, or by the obligations which he has permitted his trustee to contract, have created an equity against himself (o). In the latter class of deeds, where the object is merely to promote the convenience of the executing party, it is inaccurate to speak of the revocation of the deed; what is revoked is not the deed, but the directions given by the deed to the trustee, who is in fact the assignor's agent, as to what he shall do with the proceeds. Such deeds are to be construed as mandates ; " the same sort of mandate that a man gives when he gives his servant money, with directions to pay it in a particular way ; they do not create any equitable or legal right in a particular creditor. The right to the direction of the money is the right of the person who has put the money in the hands of his agent or steward or whoever he may be " (p).