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.
Presumption of advancement where a father settles his own along with trust moneys.
Conveyance as qualification for office.
600; and see Sidmouth v. S., sup.; Alleyne v. A., (1845) 2 J. & L. 544, 555 ; Christy v. Courtenay, (1850) 13 Beav. 96.
(q) Sidmouth v. S., sup.
(r) Mumma v. M., (1687) 2 Vern. 19 ; Shales v. S., (1701) Freem. 252.
(s) Stock v. M'Avoy, (1872) 15 Eq. 55 ; 42 L. J. Ch. 230.
(t) Redington v. R., (1794) 3 Bidg.
106, 201; see Skidmore v. Bradford, (1869) 8 Eq. 134; and cf. Re White, house, (1887) 37 Ch. D. 683; 57 L. J. Ch. 161.
(u) Bummer v. Bitcher, (1831) 5 Si. 35 ; 2 M. & K. 262.
(x) Ouseley v. Anstruther, (1847) 10 Beav. 453, 462 ; Gray v. G., (1852) 2 Sim. N. S. 273; 21 L. J. Ch. 745 ; Re Curteis' Tr., (1872) 14 Eq.217.
Conveyance to strangers on secret trust.
A purchase in the name of a child (c), or, it is conceived, a wife, whether solely or jointly with the purchaser, is not within the 27 Eliz. c. 4 ; nor, it would seem (except in cases of actual fraud), within the 13 Eliz. c. 5 (d) ; inasmuch as the settlor might have handed the money to his child and the child might have made the purchase; and as the money could not formerly have been taken under an execution, there was no fraudulent alienation against creditors within the scope of the Statute. But the Judgments Act, 1837, by making money, bank-notes, and securities seizable under a writ of fieri facias, has brought such a purchase within the 13 Eliz.
Purchases in name of child or wife not within 27th or 13th Eliz. ; semble.
(y) Childers v. C, (1857) 3 K. & J. 310 ; reversed on appeal, other facts being adduced, (1857) 1 D. & J. 482 ; Re Goock, (1890) 62 L. T. 384 (case of transfer of shares to qualify as director); and see Crichton v.C., 1895, 2 Ch. 853 ; G5 L. J. Ch. 13.
(z) May v. M. (1863) 33 Beav. 81.
(a) Davies v. Otty, (1865) 35 Beav. 208; 34 L. J. Ch. 252; and Bee Manning v. Gill, (1872) 13 Eq. 485; 41 L. J. Ch. 736.
(b) Rudkin v. Dolman, (1876) 35
L. T. 791
(c) See lady Gorge's case, (1634) cited Cro. Car. 550; Bone v. Pollard, (1857) 24 Beav. 283 ; Sug. 14th ed. 703, 704.
(d) See Fletcher v. Sedley, (1704) 2 Vera. 490 ; Proctor v. Warren, (1729) Sel. Ch. Ca. 78; Sug. 14th ed. 706 ; but see the dictum in Christ's Hosp. v. Budgin, (1712) 2 Vera. 684 ; and see sup. p. 934 ; and see Drew v. Martin, (1864) 2 H. & M. 130, 133 ; 33 L. J. Ch. 367. c. 5. Thus, where a settlor, largely indebted at the time, purchased stock in the names of trustees, upon trust for his children, the settlement was declared fraudulent and void as against his creditors (c) ; and it may now, it is conceived, be laid down, as a general rule, that where the necessary or probable effect of the advancement, even without actual fraud, is to defeat or delay the settlor's creditors, it may be declared fraudulent and void within the 13 Eliz. c. 5.
The benefit of a purchase by a trader in the name of his child, or wife, was by the earlier Bkcy. Acts (f) transferred to his assignees in a subsequent bankruptcy. Mere voluntary expenditure upon property already belonging to the wife or child, e.g., the redemption and merger (g) of the land tax (//), or the erection of buildings, or even the enfranchisement of the property, if copyhold (i), was held not to be a purchase within the above rule. Now, by the Bkcy. Act of 1883, s. 47, any conveyance or transfer of property not falling within certain specified exceptions, may be rendered void by subsequent bankruptcy within a limited period (k).
Purchase by trader in name of child or wife, whether voidable in case of bankruptcy.
And even upon a purchase in the name of a stranger, clear parol or other evidence is admissible to rebut the presumption in favour of a resulting trust; and to show that, as respects either the whole or part of the land, or the interest therein, the purchaser intended the nominee to take beneficially (/) ; but the onus of proof lies on the nominee (m).
On purchase in name of stranger, resulting trust may be rebutted by parol evidence.
(e) Barrack v. M'Culloch, (1856) 3 K. & J. 110 ; 26 L. J. Ch. 105 ; and see as to a settlement of life policies being within the 13 Eliz., Stokoe v. Cowan, (1861) 29 Beav. at p. 637 ; 7 Jur. N. S. 901 ; 1 Sm. L. C. 11th ed. at p. 24.
(f) See 1 Jac. 1, c. 15, s. 5; Glaister v. Sewer, (1802) 8 Ves. 195 ; (1803) 9 Ves. 12; (1805) 11 Ves. 377; 6 Geo. 4, c. 16, s. 73; Wombwell v. Laver, (1828) 2 Si. 360; Sug. 14th ed. 705 ; 12 & 13 Vict. c. 106, s. 126.
(g) Aliter if there were no merger; see Emly v. Guy, (1812) 3 Mer. 702.
(h) Emly v. Guy, sup.
(i) Campion v. Cotton, (1810) 17 Ves. 263a, 273 ; and cf. Fraser v. Thompson, (1859) 4 D. & J. 659, reversing V.-C. S., 1 Gif. 49.
(k) Sup. p. 942 et seq.
(I) See Maddison v. Andrew, (1747)
1 Ves. sen. 57, 61; Lloyd v. Spillet, (1740) 2 Atk. 148 ; Lane v. Dighton, (1762) Amb. 409 ; Rider v. Kidder, (1805) 10 Ves. 360, 367 ; Benbow v. Townsend, (1833) 1 M. & K. 506, 510;
2 L. J. N. S. Ch. 215; Deacon v. Colqukoun, (1853) 2 Dr. 21; 23 L. J. Ch. 16 ; Fowkes v. Pascoe, (1875) 10 Ch. 343 ; 44 L. J. Ch. 367.
(m) Redington v. R., (1794) 3 Ridg.
Where trustees (n) for the purchase of land lay out the trust moneys and take the conveyance in their own names, the cestuis que trust, in order specifically to claim the lands, or to establish a lien upon them, must prove that they were purchased with the trust moneys ; this may he done either by direct evidence, - as where trust money was paid to a trustee by a cheque, which was next day paid over by him in part payment for the estate (o), - or by mere parol evidence of declarations by the trustees; but these, in the absence of corroborating circumstances, will be received with great caution (p). The presumption, however, is that a purchase made by a trustee, whose duty is so to invest trust money, has been made in execution of the trust (q). And where a trustee paid in trust moneys (applicable to be invested in the purchase of real estate), and moneys of his own, to his general account at his bankers', and then bought real estate, and paid for it by a cheque on his bankers, the Court - the purchase having proved a beneficial one - decided that the cestuis que trust were entitled to hold that such payment was made out of that part of the moneys standing to the general account which it was proper so to employ; i.e., the trust moneys (r). But where a trustee in good faith, and at the request of the cestui que trust, advances money to make up the deficiency on a purchase for the benefit of the settlement, he is entitled to he indemnified out of the purchased property, and to enforce the indemnity by sale of the property (s).