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.
Power of revocation should be expressly reserved, where so intended.
(e) Twyne's case, 1 Sm. L. C. 11th ed. pp. 1, 26.
(/) See Bullock v. Thome, (1815) Moo. 615; S. C, cited 3 Co. 82b; but it seems that the title under the settlement will be valid until the specified time arrives.
(g) Jenkins v. Keymes, (1665) 1 Lev. 150.
(h) See Doc v. Martin, (1790) 4 T. R. 39; Sug. 14th ed. 721.
(i) Sug. 14th ed. 722.
(k) Bulloch v. Thorne, (1600) Moo. 615.
(l) Anderson v. Elsworth, (1861) 3 Gif. 154; 30 L. J. Ch. 922; Coutts v. Acworth, (1869) 8 Eq. 558; 38
L. J. Ch. 694 ; Everitt v. E., (1870) 10 Eq. 405 ; 39 L. J. Ch. 777. The onus of showing that the gift was intended to be irrevocable may be thrown on the party claiming it, Coutts v. Acworth, sup.; and see Wollaston v. Tribe, (1869) 9 Eq. 44 ; but will not necessarily, Phillips v. Mullings, (1871) 7 Ch. 244 ; 41 L. J. Ch. 211 ; Henry v. Armstrong, (1881) 18 Ch. D. 668 ; Tucker v. Bennett, (1887) 38 Ch. D. 1 ; 57 L. J. Ch. 507 ; see also Ogilvie v. Littleboy, (1897) 13 T. L. R. 399.
(m) Toker v. T., (1863) 3 D. J. & S. 487, 491 ; 32 L. J. Ch. 322 ; Hall v. 11., (1873) 8 Ch. 430, 438 ; 42 L. J. Ch. 444.
The 27 Eliz. c. 4, does not affect settlements of personal chattels (r).
Personal settlements not within 27 Eliz. c. 4,
A purchaser will not be affected by notice of an equitable claim, if he purchase from a vendor who himself bought in good faith without notice (s). In the case of a charitable trust, it has been said that want of notice, in order to be effectual, must have existed on the part of the first purchaser who held adversely to the trust; and that, if he bought with notice, the want of notice in any subsequent purchaser is immaterial (t). This is a doctrine which the Courts would probably be unwilling to countenance. But no length of possession will, irrespectively of the Statute of Limitations, protect a purchaser buying with notice of the charitable trust (u). If trust property which has been improperly sold finds its way back to the trustee, it becomes re-impressed with the trust, notwithstanding any want of notice on the part of intervening purchasers (x).
Purchaser with notice buying from vendor without notice, protected; when.
(n) Hall v. H., sup.; Henry v. Armstrong, sup.
(o) Harbidge v. Wogan, (1846) 5 Ha. 258; 15 L. J. Ch. 281; Nanney v. Williams, (1856) 22 Beav. 452; Forshaw v. Welsby, (1860) 30 Beav. 243 ; 30 L. J. Ch. 331 ; see lordly. Wallis, (1883) 50 L. T. 681; Bonhote v. Henderson, 1895, 1 Ch. 742 ; 64 L. J. Ch. 556; affd. 1895, 2 Ch. 202, as to the jurisdiction of, and evidence required by, the Court in such cases.
(p) Horan v. MacMahon, (1886) 17 L. R. Ir. 641, 654, per Fitzgibbon, L.J.
(q) Phillips v. Mullings, and Henry v. Armstrong, sup. ; Ogilvie v. Little-boy, (1897) 13 T. L. R. 399.
(r) Barton v. Van Heythuysen,
(1853) 11 Ha. 126; Re Walhampton Est., (1884) 26 Ch. D. 391 ; 53 L. J. Ch. 1000.
(s) See Brandlyn v. Ord, (1738) 1 Atk. 571, and Lowther v. Carlton, (1741) 2 Atk. 242 ; Sweet v. South-cole, (1786) 2 Br. C. C. 66; Peacock v. Burt, (1834) 4 L.J. N. S. Ch. 33 ; but the doctrine is not to be extended, West London Bank v. Reliance Bldg. Soc, (1885) 29 Ch. D. 954, 963 ; 54 L.J. Ch. 1081.
(t) See East Grinstead ease, Duke's Ch. Uses, 640, A. D. 1633 ; and see Sutton Coldfield case, ib. 642; and Comm. of Charitable Bonations v. Wybrants, (1845) 2 J. & L. 182, 194; Tudor's Char. Trusts, 3rd ed. 291, 292.
By the 13th Eliz. c. 5 (made perpetual by the 29th Eliz. c. 5), conveyances made of fraud, to the intent to delay, hinder, or defraud creditors (y), are declared to be void : but the Act does not extend to a conveyance of any interest, whether legal or equitable, under the deed impeached to a purchaser in good faith and for value without notice of the intended fraud (z). The mere fact of a settlement being voluntary is not enough to render it void against creditors (a); nor, on the other hand, is a good consideration sufficient to support it, if the intention is to defraud creditors (b) ; though the existence of a valuable consideration is a circumstance in favour of the validity of the deed (c). Where the settlement is for value there must be evidence of an actual or express intention to defeat and delay creditors before it can be held to be void, whereas in the case of a voluntary settlement it is only necessary that the facts should be such that the settlement has a necessary tendency to defeat and delay creditors (d). Where a woman married in 1864, became at various dates after her marriage entitled to sums of money under her father's and grandfather's wills, which she lent to her husband for the purpose of his business, on the express understanding that he would execute a settlement of the moneys upon her: and the husband did so in 1883, and thenceforward continued until his bankruptcy to pay her interest on the sums borrowed by him, the settlement was held to be good as against the husband's creditors, there having been consideration for it in the waiver by the wife of her equity to a settlement (e). A deed executed on the eve of bankruptcy will not be upheld, if it is, in effect, an assignment of the debtor's solvency (/). Nor is the absence of any fraudulent intention on the part of the debtor, or the fact that the settlement was procured from him by the fraud of others, sufficient to uphold the deed, if the effect of the transaction is to defeat the claims of creditors (g), but on the other hand false recitals and the fact that the settlement was one of non-existing property made by a husband in insolvent circumstances on his marriage, the wife being no party to the fraud, have been held insufficient to upset the deed (h). A surety is no more justified in placing his property out of the reach of liability for the debt than if he were the principal debtor (t). The fact that a settlement for valuable consideration is made with the knowledge that the settlor is of extravagant or intemperate habits is not sufficient to make it void or fraudulent under the 13 Eliz. or under the Bankruptcy Acts (A-).