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.
(p) Mumma v. M., (1687) 2 Vcrn. 19; Crabb v. C, (1834) 1 M. & K. 511, 518; 3 L.J. N. S. Ch. 181.
(q) Sec Elliot v. E., (1677) 2 Ch. Ca. 231; Redington v. R., (1794)3 Ridg. 106, 200; Woodman v. Morrel, (1678) Freem. 32 ; but see Robinson v. Preston, (1858) 4 K. & J. 505; 27
L. J. Ch. 394 ; Bevoy v. D., (1857) 3 Sm. & G. 403; 26 L. J. Ch. 290; Stone v. S., (1857) 3 Jur. N. S. 708.
(r) Grey v. G., (1677) 2 Sw. 594, 597.
(s) Scawin v. S., (1841) 1 Y. & C. C. C. 65 ; Sidmouth v. S., (1840) 2 Beav. 447, 455.
(t) Sidmouth v. -S., sup. ; and see Crabb v. C, (1834) 1 M. & K. at p. 532; Currant v. Jago, (1844) 1 Coll. 261, 267 ; Christy v. Court may, (1850) 13 Beav. 96; Jeans v. Cooke, (1857) 24 Beav. 513; 27 L. J. Ch. 202 ; Ford v. Tynte, (1865) 2 H. &M. 324 ; Williams v. W., (1863) 32 Beav. 370.
(u) Devoy v. D., (1857) 3 Sm. & G. 403 ; 20 L. J. Ch. 290. Sed qucere, see O'Brien v. Sheil, (1873) 7 I. R. Eq. 255.
(x) Prankerd v. P., (1820) 1 S. & S. 1; and see Murless v. Franklin, (1818) 1 Sw. 13.
(y) Swift v. Davis, (1798) 8 Ea. 354, n.
(z) Tucker v. Burrow, (1865) 2 H. &M. 515.
(a) Jeans v. Cooke, (1857) 24 Beav. 513; 27 L. J. Ch. 202.
(b) Dumper v. D., (1862) 3 Gif. 583.
(c) Collinson v. C, (1853) 3 D. M. & G. 409.
(d) Sug. 14th ed. 705, citing Baylis v. Newton, (1687) 2 Vern. 28 ; and Birch v. Blagrave, (1755) Amb. 264, where the object was to avoid serving as sheriff ; and Sir W. Raleigh's case, cited Hard. 497, where the object was to avoid a merger ; and see Bone v. Pollard, (1857) 24 Beav. 283, 287, where the intention seems to have been to avoid legacy duty.
In the case of a child, it is a material, though not decisive, circumstance, that a provision has been previously made for him (g). In the older cases (h) it was held that the child, if already fully advanced, could not take; .but, as Eyre, L. C. B., said (i), "the father is the only judge as to the question of a son's provision; the distinction, therefore, of the son being-provided for or not is not very solidly taken or uniformly adhered to : " and Lord Eldon observed that " the presumption of advancement in favour of a child is not to be frittered away by nice refinement" (k). At any rate, it appears that an advancement which is (/), or which the parent considers to be (m) only in part, will not rebut the presumption of advancement. A reversion expectant on a life estate is prima facie only a part advancement (n).
Prior advancement of child, whether material.
A subsequent parol admission by a child that he holds only as trustee, may rebut the presumption in favour of advancement (o) ; but the fact that the child, even though adult, allows the parent to take and keep possession (p), is insufficient; nor is the result altered by the child actively assisting the parent in taking the profits; as, in the case of a purchase of stock in the child's name, by his executing a power of attorney for the father to receive the dividends (q); or by money being subsequently laid out on the property by the parent (r). But where a father bought a cottage in the name of his son, and shortly afterwards served the tenant with notice to quit, and during his life always received the rents and profits, the notice to quit was held an act sufficiently strong to rebut the presumption of advancement (.s).
By what subsequent acts or circumstances.
(e) Re Whitehouse, (1887) 37 Ch. D. 683; 57 L. J. Ch. 161.
(f) Murless v. Franklin, (1818) 1 Sw. 13, 19.
(g) Per Lord Brougham, Crabb v. C (1831) 1M.&K at p. 542.
(h) Elliot v. E., (1677) 2 Ch. Ca. 231 ; Grey v. G., (1677) 2 Sw. 594, 600 ; and see Sug. 14th ed. 704.
(i) Dyer v. D., (1788) 2 Cox, 92 ; 2 Wh. & T. L. C. 7th ed. 803.
(/>) See (1808) 15 Ves. 50.
(1) Grey v. G., (1677) 2 Sw. 594, 600.
(m) Redington v. It., (1794) 3 Eidg. 106, 191.
(n) Lamphugh v. L., (1709) I P.W. 111.
(o) See Sidmouth v. S., (1840) 2 Beav. 447, 456 ; Seawin v. S., (1841) 1 Y. & C. C. C. 65.
(p) See Elliot v. E., (1677) 2 Ch. Ca. 231 ; Taylor v. T., (1737) 1 Atk. 386 ; Grey v. G., (1677) 2 Sw. 594,
If, on the death of the purchaser, any part of the purchase-money remains due, it must, it seems, be paid out of his estate (t).
But though, as already noticed, no subsequent act on the part of the purchaser can affect the rights of the nominee, if the presumption in favour of advancement has once arisen, yet a clear devise to another of the estate will raise a case of election against the nominee (u).
And where the father of a family has allowed money of his own to be invested in the purchase of an estate, along with other moneys subject to the trusts of his marriage settlement, it will require very strong evidence of intention to show that he did not intend it as an advancement (x) ; and where a father conveys land to his son, as a qualification for an office, or franchise, which requires in the holder a bond fide beneficial ownership, he cannot maintain that the transaction was intended to be in fraud of the law, so as to throw on the child a resulting trust (y). A conveyance by a father to his son as a qualification for the parliamentary franchise is not in itself illegal (z). So, where A., under a groundless fear of being indicted for bigamy, conveyed his real estate to B., on a secret understanding that B. was to hold it merely as a trustee, and no consideration was paid, Romilly, M.R., held that the transaction was free from taint of illegality; and compelled B., who denied the trust and claimed the benefit of the Statute of Frauds, to execute a reconveyance (a). And where A. conveyed freeholds to B. in order to avoid a possible liability on shares in a company and continued to receive the rents until his death, there was held to be a resulting trust to the heir-at-law, and also that a declaration of trust by B. after A.'s death in favour of A.'s wife was invalid as no declaration of trust had been executed in the lifetime of A. (b).