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.
Distinction between creditors' deeds and other trust deeds.
(I) Prodgers v. Langham, (1663) 1 Sid. 133; George v. Milbanke, (1803) 9 Ves. 190 ; Parr v. Eliason, (1800) 1 Ea. 92, 95 ; see Halifax Joint Stock Bkg. Co. v. Gledhill, 1891, 1 Ch. 31; 60 L. J. Ch. 181, where these cases are considered.
(m) See Acton v. Woodgate, (1833) 2 M. & K. 492 ; Einde v. Blake, (1840) 3 Beav. 234 ; 9 L. J. N. S. 346 ; Eirwan v. Daniel, (1847) 5 Ha. 493 ; 16 L. J. Ch. 191 ; Johnson v. Kershaw, (1847) 1 De G. & S. 260 ; Harland v. Binks, (1850) 15 Q. B.
713 ; 20 L. J. Q. B. 126 ; Mackinnon v. Stewart, (1850) 1 Si. N. S. 76 ; 20 L. J. Ch. 49 ; Griffith v. Ricketts, (1849) 7 Ha. at p. 307 ; Smith v. Rurst, (1852) 10 Ha. 30, 46 ; Synnot v. Simpson, (1854) 5 H. L. C. 121; Siggers v. Evans, (1855) 1 Jur. N. S. 851; but see also Cornthwaitc v. Frith, (1851) 4 De G. & S. 552 ; Nicholson v. Putin, (1855) 2 K. & J. 18; (1857) 3 ib. 159.
(») Per James, L. J., in Levy v. Creighton, (1874) 22 W. R. 6C5.
A settlement " really fraudulent or fraudulently kept on foot" (q), would seem to be void as against a purchaser in good faith even from the heir or devisee of the settlor (r) ; hut a merely voluntary deed cannot, it would appear, he avoided by a sale by the heir or devisee ; the principle upon which a sale by the settlor himself avoids such a deed being, that the subsequent sale shows the existence of an originally fraudulent intention (s) : so, a wife, surviving her husband, cannot, by an assignment for value, avoid his voluntary assignment of her legal term for years (t). Of course, a voluntary deed will not be avoided by a subsequent conveyance apparently made for value, but in fact voluntary (m) . It has been held in Ireland that in the case of several voluntary grantees of the same estate, the one who first sells confers a good title on the purchaser (x) : but this seems to be bad law (y). A purchaser without notice from a volunteer claiming under a registered settlement was held to have priority over a volunteer claiming under an earlier unregistered settlement (z).
Whether heir or devisee can set aside voluntary or fraudulent deed.
(o) Per Turner, V.-C, Smith v. Burst, (1852) 10 Ha. 47; New France and Garrard's Trustee v. Bunting,
1897, 2 Q. B. 19 ; 66 L. J. Q. B. 554. (p) Per Jaines. L. J., in Johns v. James, (1878) 8 Ch. D. 744, 749 ; 47 L. J. Ch. 853. And nee Wallwyn v. Coutts, (1815) 3 Mer. 707; Garrard v. Lauderdale, (1S30) 3 Si. 1 ; (1831) 2 R. & M. 451 ; Acton v. Woodgah, (1833) 2 M. & K. 492 ; Henderson v. Rothschild, (1886) 33 Ch. D. 459 ; 55 L. J. Ch. 930; New France and Garrard's Trustee v. Hunting, sup. ; Priestley v. Ellis, 1897, 1 Ch. 489; 66 L. J. Ch. 240.
Sect. 5 of 27 Eliz. c. 4, seems to comprise all settlements, though made for valuable consideration (a), which reserve what is, either expressly or virtually, a power of revocation to the settlor; e.g., an unlimited power to charge by way of mortgage (b), or to make leases for any term without rent (c) ; or a power to revoke on payment of 10s. (d), or with the consent of a person nominated by the settlor (e), or, simply, at a future date (f) : but a power to charge a reasonable specified sum (g), or to revoke upon terms which are fairly calculated to preserve the substantial rights of the parties interested under the limitations (h), seems to be unobjectionable. Lord St. Leonards expresses an opinion (i), that where a settlement made for valuable consideration contains a power of revocation which is afterwards released for valuable consideration, a purchaser, buying subsequently to such release, would be postponed to the settlement: probably the result might be the same, although there were no consideration for the release, if the purchaser had notice of it: but a secret release will not affect a purchaser (k).
Settlements with power of revocation are within the Act.
(q) Sug. 14th ed. 713.
(r) Burrel's case, (1607) 6 Co. 72 : and see Warburton v. Loveland, (1832) 6 Bl. N. S. 1, 31.
(s) Parker v. Carter, (1844) 4 Ha. at p. 409 ; Doe v. Rusham, (1857) 17 Q. B. 723; Godfrey v. Poole, (1888) 13 A. C. 497, 504; Lewis v. Pees, (1856) 3 K. & J. 132, 150 ; 26 L. J. Ch. 101.
(t) Doe v. Lewis, (1852) 11 C. B. 1035.
(u) Roberts v. Williams, (1844) 4 Ha. 130 ; 11 L. J. N. S. 65 ; Humphreys v. Pensam, (1836) 1 M. & C. 580; Doe v. Webber, (1834) 1 A. & E. 733, 710 ; 3 L. J. N. S. K. B.
208 ; and see General Meat Association v. Bouffler, (1879) 40 L. T. 126; afld. on other grounds, (1880) 41 L. T. 719.
(x) Jones v. Whittaker, (1841) Loug. & T. 141.
(y) Doe v. Rusham, sup.
(a) Re M'Donag's Est., (1879) 3 L. R. Ir. 408.
(a) See Sug. 14th ed. 721 ; Smith v. Hurst, (1852) 10 Ha. 30.
(b) Tarbaclc v. Marbury, (1705) 2 Vern. 510.
(c) Lavender v. Blackstone, (1676) 2 Lev. 146.
(d) See Griffin v. Stanhope, (1617) Cro. Jac. 455.
A solicitor, when preparing a voluntary settlement, ought to ascertain from his client whether it is to be revocable or not; and where it is intended to be of a quasi testamentary character, a power of appointment which will override the trusts, or a power of revocation, should be expressly reserved (/). The absence of a power of revocation is a circumstance to be taken into account, and is of more or less weight according to the other circumstances of each case (m). And, though there is no rule of law that a voluntary deed will be void unless the solicitor takes the settlor's express direction as to the insertion or omission of such a power (n), yet in several cases voluntary settlements, apparently irrevocable, have been rectified by the introduction of a power of general appointment (o). In Ireland it has been said that in the absence of a power of revocation, it must be proved (1) that the deed is the free act of a settlor who knows what he is doing : and (2) either that the deed is provident and just in itself, or that any apparent improvidence and injustice is in accordance with the actual intention of the settlor (p). But where the intention to make an irrevocable settlement is clear, the Court will not interfere, merely because the deed is voluntary (q).