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.
A married woman, governed by the old law, may 'act in such a way that she becomes estopped from setting up an adverse claim (g). But neither under the old law nor under the new, is a married woman, who has been guilty of fraud, thereby deprived of the protection provided by a restraint upon anticipation (h). The M. W. P. Act, 1882, does not abolish a husband's liability to be sued jointly with his wife for her wrongful acts committed during the coverture (i); the husband is liable for, and may be sued jointly with, his wife, for her fraud committed during the coverture so long as such fraud was an independent representation, and not the means of inducing or effecting a contract (k).
Relief against lraudulent sale by married woman.
Under the M. W. P. Act of 1882, every woman married after 1882 (and every woman married prior thereto as to property, whether real or personal, her title to which, whether vested or contingent, and whether in possession, reversion or remainder, has accrued after 1882 (l)) is entitled to hold and dispose of any real and personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee. Whether her property be real or personal, whether her estate or interest in it be legal or equitable, she is now absolutely freed from the disability of coverture, subject only to this one restriction, viz., that a restraint on anticipation may still be attached to her enjoyment either of the corpus or the income of her property (m).
M. W. P
(f) Re Harmon and Uxbridge, etc. R. Co., (1883) 24 Ch. D. at pp. 725, 726; 52 L. J. Ch. 809.
(g) Lush, 3rd ed., p. 47; and see Jones v. Kearney, (1841) 1 D, & War. 134; Savage v. Foster, (1722) 9 Mod. 35; Derbishire v. Home, (1853) 3 D. M & G. 80; Blackie v. Clark, (1852) 15 Beav. at p. 603;
22 L. J. Oh. 377; Vaughan v. Vanderstegen, (1854) 2 Dr. 363, 408;
23 L. J. Ch. 793; Liverpool Association v. Fairhurst, (1854) 9 Ex. 422; 23 L. J. Ex. 163; Barrow v. B., (1858) 4 K. & J. 409; 27 L. J. Ch. 678; Sharpe v. Fog, (1868) 4 Ch. 35; Re Lush's Trusts, (1869) ib. 591; 38 L. J. Oh. 650.
(h) Stanley v. S., (1878) 7 Ch. D. 589; 47 L. J. Ch. 256; Bateman v. Faber, 1897, 2 Oh. 223; 1898, 1 Ch. 144; 67 L. J. Oh. 130; Arnold v. Woodhams, 16 Eq. 29; 42 L. J. Ch. 578; Re Glanvill, (1885) 30 Ch. D. pp. 537-8.
(i) Seroka v. Kattenburg, (1886) 17 Q. B. D. 177.
(k) Earle v. Kingscote, 1900, 2 Ch. 585; 69 L. J. Ch. 725; Edwards y. Porter, 1925, A. C. 1.
(l) Reid v. R., (1886) 31 Ch. D. 402; 55 L. J. Ch. 294; Re Cuno, (1889) 43 Q. D. 12; Re Parsons, (1890) 45 Ch. D. 51; 59 L. J. Ch. 666.
Sect. 1 of the M. W. P. Act, 1893 (replacing sub-ss. (3 and (4) of s. 1 of the M. W. P. Act, 1882), provides, in effect, that every contract by a married woman, otherwise than as agent, is to be deemed to have been entered into with respect to her separate property, whether or 'not she is entitled at the time to any separate property (n), and is to bind all separate property which she may at the time or thereafter be entitled to, and is to be enforceable against all property which she may, while discovert, be entitled to (o); but this provision does not apply to property which the married woman is restrained from anticipating.
Contracts bind separate property free from restraint.
On a debtor toeing adjudged bankrupt the property belonging to or vested in him at the commencement of the bankruptcy, or acquired by or devolving on him before his discharge (p) vests in 'the trustee (q), and until a trustee is appointed, the official receiver is to be the trustee (r). The property of the bankrupt is to pass from trustee to trustee, including under that term the official receiver when he fills the office of trustee, and is to vest in the trustee for the time being during his continuance in office, without any conveyance, assignment or transfer whatever (s). The trustee can sell and deal with the bankrupt's property (t) and disclaim unprofitable contracts (u), and his title relates back to the act of bankruptcy on which the receiving order is made, or to the first of several acts of bankruptcy committed by the bankrupt within three months preceding the presentation of the petition (x).
(m) As to whether her personal status is altered by the Act, see Symonds v. Hallett, (1883) 24 Ch. D. 346; 53 L. J. Ch. 60.
(n) As to the law before this enactment, see Palliser v. Gurnry, (1887) 19 Q. B. D. 519.
(o) This overrules Jay v. Robinson, (1890) 25 Q. B. D. 467, and Pelton v. Harrison, 1891, 2 Q. B. 422.
(p) Bky. Act, 1914, s. 38. (q) S. 18 (1) and s. 38.
(r) S. 53 (1).
Until the trustee intervenes, dealings by the bankrupt with any person dealing with him in good faith and for value in respect of his after-acquired property, whether with or without knowledge of the bankruptcy, are valid against the trustee (y). This rule applies to leaseholds acquired by a bankrupt and dealt with by him by way of mortgage (z); but not, it seems, to after-acquired freeholds acquired by a bankrupt under a will and dealt with by him by way of sale (a). The rule has been held to apply, however, to after-acquired real estate which undischarged bankrupts purchase for partnership purposes and sell to a purchaser for value before their trustees in bankruptcy intervene (b).
There is no positive law that property belonging to a charity shall be absolutely inalienable, but when the dealing is with the trustees on their own authority, the onus is thrown on the alienee and those claiming under him of showing that the sale was beneficial to the charity (c); and, unless this can be done, the transaction will be set aside (d). There is a strong presumption that land, once devoted to the charitable purpose, is intended for ever to remain inalienable; but under special circumstances the right to alienate it may be presumed. Thus where a sale of charity lands has taken place at a distant date, and has always been acquiesced in, and the origin of the charity is lost in obscurity, a power in the trustees to sell may be presumed (e). The Chancery Division has power under its general jurisdiction, and also under Sir Samuel Romilly'a Act (52 Geo. III. c. 101), to direct a sale of charity property, without the sanction of the Charity Commissioners (f); and, notwithstanding any of the disabling statutes, sales of charity lands may now be effected under the Charitable Trusts Act, 1853 (g), under the authority of the Commissioners: (h). But unless acting under statutory authority or under the authority of the Chancery Division, or a scheme legally established (i), or with the approval of the Commissioners, charity trustees are now prohibited from selling or charging any portion of their charity lands (k). The Act does not apply (l) to the institutions and in the eases exempted from the operation of the Act of 1853, under s. 62 (m).