This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
St. 27 Eliz. c. 4, made perpetual by St. 39 Eliz. c. 18, provided in effect that all alienations of land, made with intent to defraud and deceive sub25. See Springer v. Bigford, 160 111. 495, 43 N. E. 751; Shep-pard v. Thomas, 24 Kan. 780; Clark v. French, 23 Me. 221, 39 Am. Dec. 618; Wyman v. Brown, 50 Me. 139; Simmons v. Ingram, 60 Miss. 886; Claflin v. Mess, 30 N. J. Eq. 211; Hager-man v. Buchanan, 45 N. J. Eq. 292, 14 Am. St. Rep. 732 and note, 17 Atl. 946; Monroe v. Smith, 79 Pa. St. 459; Aldous v. Olverson, 17 S. D. 190, 95 N. W. 917.
26. 1 Stimson's Am. St. Law, Sec. 4598.
27. Gridley v. Bingham, 51 111. 153; Farlin v. Sook, 30 Kan. 401, 46 Am. Rep. 100, 1
Pac. 123; Dougherty v. Cooper, 77 Mo. 528; Jackson v. Glaze, 3 Okla. 143, 41 Pac. 79; Tiernay v. Claflin, 15 R. I. 220, 2 Atl. 762; Leach v. Francis, 41 Vt. 670; Shauer v. Alterton, 151 U. S. 607,
38 L. Ed. 286.
28. Thames v. Rembert's Adm'r, 63 Ala. 561, Williamson v. Russell, 39 Conn. 406; Scott v. Purcell, 7 Blackf. (Ind.) 66, mainder thereof, or taken the rents or profits thereof, for one whole year next before the sale, but the purchase of a pretended title, by a person in lawful possession of the rents and profits, was declared to be allowable. It is sometimes said that this statute is merely declaratory of the common law, but since, at common law, and before the Statute of Uses, the transfer of freehold interests in land necessarily involved a transfer of the seisin, there was, it would seem, but little room for the application of a statute forbidding the transfer of land by one who was disseised, that is, the transfer of a right of entry merely.47
39 Am. Dec. 453; George v. Kimball, 24 Pick. (Mass.) 224; Anderson v Roberts, 18 Johns. (N. Y.) 515, 9 Am. Dec. 235; Young v Lathrop, 67 N. C. 63, 12 Am. Rep. 663; Sawtelle v. Weymouth, 14 Wash. 21, 43 Pac. 1101.
This statute has been frequently staled to be declaratory of the common law.30 This is questionable, however.31 In many states in this country there is an express statutory provision substantially equivalent to the English statute,32 while occasionally such statute has been regarded as in force without any local provision upon the subject.33
In England the statute was construed as invalidating any conveyance not made on a valuable consideration, as against one to whom the grantor subsequently conveyed the land on a valuable consideration, even though the subsequent alienee had notice of the previous conveyance, the execution of the subsequent conveyance being regarded as evidence that the first conveyance was fraudulent. The effect of this construction was that a conveyance of land not based on a valuable consideration could always be revoked by the grantor by means of a subsequent conveyance by him for value, unless the first grantee had conveyed the land to a purchaser for value.34 This construction placed usually regarded as necessarily showing a fraudulent intent in making the first conveyance, so as to bring it within the terms of the statute,39 though it may cast upon the grantee in the first conveyance the burden of showing the absence of such an intent.40 The general result of the decisions in this country, accordingly, is that, while a conveyance intended to be in fraud of a subsequent purchaser is invalid as against him, it is not so, even though voluntary, if not actually fraudulent, and he has notice of its existence.
29. Twyne's Case, 3 Coke, 80b. 1 Smith, Lead. Cas. 1; Dolphin v. Aylward, L. R. 4 H. L. 486; Bigelow, Fraud. Conv. 637; May. Fraud. Conv. (2d Ed.) 245.
30. Cadogan v. Kennett, Cowp. 434; Hamilton v. Russel, 1 Cranch (U. S.) 309, 2 L. Ed. 118; Kimball v. Hutchins, 3 Conn. 450; Fleming v. Town send, 6 Ga. 103, 50 Am. Dec. 318; Howe v. Waysman, 12 Mo. 169, 49 Am. Dec. 126.
31. 1 Story, Eq. Jur. Sec. 352; Bigelow, Fraud. Conv. 15.
32. 1 Stimson's Am. St. Law, Sec. 4592. See Bigelow. Fraud. Conv. 622 et seq.
33. Beal v. Warren, 2 Gray (Mass.) 447; Lancaster v. Dolan, 1 Rawle (Pa.) 231, 18 Am. Dec. 625; City of Baltimore v. Williams, 6 Md. 235; Gardner v. Cole, 21 Iowa, 205.
34. Doe d. Otley v. Manning, 9 East, 59; Doe d. Newman v. Rusham, 17 Q. B. 723, 6 Gray's Cas. 314; Dolphin v. Aylward, L. R. 4 H. L. 486. See May, Fraud. Conv. (2d Ed.) 189 et upon the statute was finally removed by a comparatively late statute,35 providing that no voluntary conveyance of land, if bona fide and free from fraudulent intent, should be defeated by a subsequent purchase for value. In this country the construction placed upon the act by the English courts has not been adopted, and consequently the influence of the statute has been much less felt. So it has been usually held that, if the subsequent purchaser has notice of the previous voluntary conveyance, he cannot claim to have been defrauded thereby, provided there was no actual fraud in the making of the first conveyance.36 In many states the statute specifically provides that the prior conveyance shall not be void as against a subsequent purchaser with actual or legal notice.37 Moreover, the notice, so to preclude the subsequent purchaser from claiming the protection of the statute, need not, by the weight of authority, be actual, constructive notice from the recording of the first conveyance being sufficient.38 Apart from the question of the effect of notice of the previous conveyance, the making of the second conveyance is not seq.; Mellick v. Mellick, 47 N. J. Eg. 86, 19 Atl. 870. But the heir or devisee of the grantor could not revoke the voluntary-conveyance by making a conveyance for value. Doe d. Newman v. Rusham, 17 Q. B. 723; Lewis v. Rees, 3 Kay & J. 132.
35. 56 & 57 Vict. c. 21 (A. D. 1893).
36. Gilliland v. Fenn, 90 Ala. 230, 9 L. R. A. 413, 8 So. 15; Chaffin v Kimball's Heirs, 23 111. 36; Anderson v. Etter, 102 Ind. 115, 26 N. E. 218; Gardner v. Cole, 21 Iowa, 212; City of Baltimore v. Williams, 6 Md. 235; Verplanck v. Sterry, 12 Johns. (N. Y.) 536, 7 Am. Dec. 348; Lancaster v. Dolan, 1 Rawle. (Pa.) 231, 18 Am. Dec. 625;