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.
How voluntary settlements may be avoided under the Bankruptcy Act.
(e) Olliver v. King, (185.5) 1 Jur. N. S. 10G6 ; rev. (1856) 8 D. M. & G. 110.
(f) Reg. v. Smith, (1852) 6 Cox, C. C. 31.
(g) Wich v. Parker, (1856) 22 Beav. 59.
(h) S. 91 of the Act of 1869 was confined to settlements made by traders, while in the present Act no distinction is drawn between classes; and s. 17 of the later Act is not retrospective so as to apply to a settlement made prior to its coming into operation : Ex p. Todd, (1887) 19 Q. B. D. 186 ; 56 L. J. Q. B. 431.
(i) A purchaser in the ordinary commercial, and not in the legal, sense is meant, so that a trustee of a post-nuptial settlement is not a purchaser within the section : Ex p. Hillman, (1879) 10 Ch. D. 622; 48 L. J. Bkcy. 77 ; Hance v. Harding, (1888) 20 Q. B. D. 732, 738; Re Parry, 1904, 1 K. B. 129 ; 73 L. J. K. B. 83; and see Re Dale and Elsden, (1892) 36 Sol. J. 347.
(k) See Mackintosh v. Pogose, 1895, 1 Ch. 505 ; 64 L. J. Ch. 274 ; Re Tetley, (1896) 66 L. J. Q. B. 111.
(1) Ex p. Home, (1S86) 54 L. T. 301.
By s. 48, every conveyance or transfer of property, or charge thereon made, every payment made, every obligation incurred, and every judicial proceeding taken or suffered "by any person unable to pay his debts as they become due, from his own moneys, in favour of any creditor, or any person in trust for any creditor, with a view of giving such creditor a preference (s) over the other creditors, is to be deemed fraudulent and void under the Act, in the event of the person making, taking, paying, or suffering the same being adjudged bankrupt on a bankruptcy petition presented within three months (/) after the date of making, taking, paying, or suffering the same ; but the section is not to affect the rights of any person making title in good faith, and for valuable consideration, through or under a creditor of the bankrupt (u). And by s. 49 certain transactions with the bankrupt, or in relation to his property, are protected from the operation of the Statute (x).
Under s. 48.
(m) But this does not include the interest which the settlor himself takes under the settlement : Re Lowndes, (1887) 18 Q. B. D. 677 ; 56 L. J. Q. B. 425.
(m) For a definition of the word, see Hasluck v. Clark, 1899, 1 Q. B. 699; 68 L. J. Q. B. 486.
(o) Exp. Harvey, (1885) 15 Q. B. D. 682; 54 L. J. Q. B. 554; Re Plummer,
1900, 2 Q.B. 790; 69 L. J. Q. B. 936
(p) Re Gould, (1887) 19 Q. B. D. 92 ; 56 L. J. Q. B. 333; see Hasluck v. Clark, sup.
(q) Re Carter and Kenderdine, 1897, 1 Ch. 776; 66 L. J. Ch. 408.
(r) Sanguinetti v. Stuckey's Bkg. Co., 1895, 1 Ch. 176; 64 L. J. Ch. 181; Re Farnham, 1895, 2 Ch. 799 ; 64 L.J. Ch. 717.
"Where a purchaser for value is evicted in Equity, under a prior title, he will be credited with all moneys expended by him in necessary repairs or permanent improvements (y) (except improvements made after he has discovered the defect of title (z) ) ; and will be debited with the rents which he has received; but, unless guilty of actual fraud or purchasing with notice of an infant's title (a), the account will not extend to such rents as, without his neglect or default, he might have received (b) ; nor will he be conclusively bound by his admissions in his answer as to receipts (c) ; nor, except in cases where the defendant fills a fiduciary character, will the account, as a general rule, be carried back beyond the filing of the bill (d). Where a mortgagee, claiming under a tenant for life, remained in possession after the death of the tenant for life, of which he was in ignorance, it was held that he must, in default of equitable considerations, account to the remainderman for six years' arrears of rents prior to the riling of the petition, on the analogy of a legal claim (e). Annual rests will not be directed, unless a special case for that form of decree be made on the pleadings (/) ; and the decree should contain a direction for just allowances (g). Where a man completed the purchase of, and paid for, an estate which his wife had contracted for before marriage, and then sold it without her concurrence, the purchasers, upon being evicted by the wife's heir after the husband's death, were allowed a lien on the estate for the purchase-money paid by the husband and for moneys expended in lasting improvements from the date of his purchase, with interest; but, accepting this relief, they were treated as mortgagees in possession; and were debited with rents received, or which might but for wilful default have been received, during the like period (y).
On what terms a purchaser is evicted in Equity.
(s) As to what is a fraudulent preference, see Williams on Bkcy. 8th ed. 250 et seq.
(t) See Be Liverpool Guarantee Co., (1882) 30 W. R. 378.
(u) It would seem that the protection is not under this section extended to the creditor himself as well as to those claiming1 under him, as was held to he the case under s. 92 of the Act of 1869; see Butcher v. Stead, (1875) L. It. 7 H. L. 839 ; 44 L. J. Bank. 129.
(x) See sup. p. 8G1.
(y) Mill v. Hill, (1852) 3 H. L. C. 828.
(z) Kenney v. Browne, (1796) 3 Ridg. P. C. 462, 518 ; Clare Hall v. Harding, (1818) 6 Ha. 273 ; 17 L. J. Ch. 301.
(a) Blomfield v. Eyre, (1845) 8 Beav. 250 ; 14 L. J. Ch. 2G0.
(b) Howell v. H, (1837) 2 M. & C. 478.
(e) S. C.
A person claiming under a fraudulent deed, voidable at Law, cannot, however, claim for improvements or repairs (i) ; but the rule may be different when relief against the deed can be afforded only in Equity (k) ; and the deed, though invalid, is not actually fraudulent (I) ; and even at Law, in an action for mesne profits, an allowance may be made for ground-rent, rates, and taxes (m) ; and where there is a mere legal right to be determined at Law, it seems doubtful whether, according to present practice, a Court of Equity has any jurisdiction to make an allowance to the evicted party for money expended in repairs (n).