Chap. xv

Settlement by widow, valid.

Consideration not expressed may be proved.

Settlement may be supported by matter ex post facto.

Whether heir or devisee can set aside voluntary or fraudulent deed.

(f) See Sug. 932.

(g) Newstead v. Searles, 1 Atk. 265; and see King v. Cotton, 2 P. Wms. 674.

(h) See Sug. 938; Pott v. Tod-hunter, 2 Coll. 76; Clifford v. Tur-rell, 1 Y. & C. C. C. 138.

(i) Kirk v. Clark, Prec. in Ch. 275; East India Company v. Clavel, 2 Eq. Ca. Abr. 52, and other cases cited; 5 Bac. Abr. tit. Fraud, C.; Johnson v. Legard, Turn. & Russ. 294.

(k) See Broun v. Carter, 5 Ves. 862, see p. 876.

(I) Prodgers v. Langham, 1 Sid. see 134; George v. Milbanke, 9 Ves. 190.

(m) See Acton v. Woodgate, 2 Myl. & K. 492; and see also Hinde v. Blake, 3 Beav. 234; and Kirwan v. Daniel, 5 Ha. 493; and a very recent case of Harland v. Binks, 14 Jur. 979, Q. B.

(n) Sug. 928.

(o) Burrel's case, 6 Rep. 72.

(p) Parker v. Carter, 4 Ha. 409.

(q) Roberts v. Williams, 4 Ha. 130.

The 5th sect. of 27 Eliz. c. As, seems to comprise all settlements, although made for valuable consideration (r), which reserve what is, either expressly or virtually, a power of revocation to the settlor; e. g., an unlimited power to charge by way of mortgage (s); or a power to revoke on payment of 10s. (t), or with the consent of a person nominated by the settlor (u): but a power to charge a reasonable specified sum (w), or to revoke upon terms which are fairly calculated to preserve the substantial rights of the parties interested under the limitations (x), seems to be unobjectionable: and Sir E. Sugden expresses an opinion (y), that where a settlement made for valuable consideration contains a power of revocation which is afterwards released for valuable consideration, a purchaser, buying subsequently to such release, would be postponed to the settlement: probably the result might be the same although there were no consideration for the release, if the purchaser had notice of it: but a secret release will not affect a purchaser (z).

Nor will a purchaser be affected by notice of an equitable claim, if he purchase from a vendor who himself bought bond fide without notice (a). It has been held that, in the case of a charitable trust, want of notice, in order to be effectual, must have existed on the part of the first purchaser who held adversely to the trust; and that, if he bought with notice, the want of notice in any subsequent purchaser is immaterial (b). This is a doctrine which the Courts would probably be unwilling to countenance. If trust-property which has been improperly sold finds its way back to the trustee, it becomes re-impressed with the trust, notwithstanding any want of notice on the part of intervening purchasers (c).

Settlements with power of revocation, fraudulent.

Purchaser with notice, buying from vendor without notice, protected.

(r) See Sug. 942.

(s) Tarback v. Marbury, 2 Vern. 510.

(t) See Griffin v. Stanhope, Cro. Jac. 455.

(u) Twyne's case, 3 Rep. 82 b.

(w) Jenkins v. Keymes or Keymis, 1 Lev. 150.

(x) See Sug. 942.

(y) Ibid. 943.

(z) Bullock v. Thome, Moore, 615.

(a) See Brandlyn v. Ord, 1 Atk. 571, and Lowther v. Carlton, 2 Atk. 242; Sweet v. Southcote, 2 Bro. C. C. 66.

(b) See East Grimsted case, Duke's Ch. Uses, 640, A. D. 1633.

By the 13th Eliz. c. 5, (made perpetual by the 29th Eliz. c. 5), conveyances made of fraud, to the intent to delay, hinder, or defraud creditors, are declared to be void: but the Act is not to extend to conveyances made upon good consideration and bond fide to persons without notice of the intended fraud (d). A conveyance can, it appears, be set aside as fraudulent against creditors only at the instance of a person who was a creditor at the time; though, when it shall have been set aside, subsequent creditors may be let in (e).

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, (except improvements made after he has discovered the defect of title) (f); 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 (g), the account will not extend to such rents as, without his neglect or default, he might have received (h): nor will he be conclusively bound by his admissions in his answers as to receipts (i); nor will annual rests be directed, unless a special case for that form of decree be made on the pleadings (k); and the decree should contain a direction for just allowances (l). In a recent case, 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 debited with rents received, or which might but for wilful default have been received, during the like period (m).

Settlements to defraud creditor, void under 13 Eliz. c. 5.

On what terms purchaser is evicted in Equity.

(e) Kennedy v. Daly, 1 Sch. & Lef.; see p. 379.

(d) Sect. 6; see Wood v. Dixie, 7 Q. B. 892; and see, on the general construction of the statute, Twyne's case, 3 Rep. 80; 1 Smith's Leading Cases, 1, and cases cited in note, and the late case of Skarf v. Soulby, 1 Mac. & G. 364, and cases cited.

(e) Per V. C. K. B., Ede v. Kaowles, 2 Y. &C. C. C. 178.

(f) See Kenney x. Browne, 3 Ridg. P. C. 518; Clare Hall v. Harding, 6 Ha. 273.

(g) Blomfield v. Eyre, 8 Beav. 250.

(h) Howell v. Howell, 2 Myl. & Cr. 478.

(i) 5. C.

(k) Ncesom v. Clarkson, 4 Ha. 97; see Donovan v. Fricker, Jac. 165.

Where the purchase is of the estate of an infant, the purchaser may, it seems, be treated as a bailiff, and be charged with interest on his balances, and with such rents as he might have received but for wilful default (n).

Where land vested in trustees upon an express trust is sold by them in breach of trust, the conveyance to the purchaser sets the Statute of Limitations running as against the cestuis que trust (o); but, as we have already seen (p), a much shorter time than the statutory limit will bar a cestui que trust who, without reasonable excuse, knowingly neglects to prosecute his claim to the property. In cases of concealed fraud the Statute does not begin to run until the fraud is or might be discovered (q).

Chap. xv.

If the estate belonged to infant.

Statute of Limitations begins to run on conveyance by trustees.

(l) Howell v. Howell, 2 Myl. & Cr. 478.

(m) See Neesom v. Clarkson, 2 Ha. 176; 4 Ha. 97; quaere whether an allowance should not have been made for interest upon the difference between Clarkson's and Syke's purchase-money, the account of rents and profits being carried back to the date of Syke's purchase?

(n) Blomfield v. Eyre, 8 Beav. 250; and see Wyllie v. Ellice, 6 Ha. 505.

(o) 3 & 4 Will. IV. c. 27, s. 25.

(p) Supra, p. 25.

(q) See sect. 26.