(n) Hil. 18 É. 3. Coram rege in Thesaur. (n) In ancient time, when a man made a fraudulent feoffment, it was said, quod possuit terram illam in brigam; tual fraud, and meritorious, as a provision for relations, will be void against a subsequent purchaser for valuable consideration with notice, whether by conveyance or articles. Buckle v. Mitchell, 18 Ves. 100. Doe, d. Otley v. Manning, 9 East. 59. And in such cases a court of equity will not restrain the husband, by injunction, from selling; neither can the purchase-money be laid hold of in favor of claims under a previous settlement, void under the stat. 27 Eliz. as being voluntary. 18 Ves. 91. By the 5th section of the 27 Eliz. conveyances with power of revoca tion are declared void as against a subsequent conveyance, or charge, Standen v. Bullock, 3 Co. 82 b. 1 Sid. 133.; and it seems quite immaterial whether the settlement itself is merely voluntary, or upon valuable consideration, Sugd. Vend. 3d edit. 491. Rob Conv. 637: but where a power of revocation is inserted in a conveyance, which can only be exercised with the consent of persons who are not under the control of the settler, such conveyance will not be considered as within this act. Buller v Waterhouse, 2 Jo. 94. 2 Show. 46. Booth's Op. 1 Coll. Jur. 426. With respect to the persons who are deemed purchasers under the 27 Eliz., they must be purchasers for money, or other valuable consideration. Twine's case, 3 Co. 83 a. Et vid. 2 Átk. 601. Upton v. Bassett, Cro. Eliz. 445. Marriage has been held to be a sufficient consideration, Douglas v. Ward, 1 Ch. Ca. 99; but a conveyance to a man's children, or to his wife after marriage, by way of jointure, will not enable them to avoid a preceding conveyance. Upton v. Bassett, supra. A mortgagee is a purchaser within the stat. 27 Eliz.; as also a lessee at a rack-rent. Chapman v. Emery, supra. Goodright v. Moses, supra. But where the price is very inadequate, or there are other circumstances indicating a fraudulent collusion between the purchaser and the vendor, to avoid a preceding conveyance, a purchaser will not be entitled to the benefit of this statute. Doe v. Routledge, Cowp. 705. Et vid. Metcalfe v. Pulvertoft, 1 Ves. & B. 183, 184. The title of a purchaser for a valuable consideration, however, cannot be defeated by a prior voluntary settlement of which he had no notice, though he purchased of one who had obtained a conveyance by fraud, but of which fraud he, the purchaser, was ignorant. Doe, d. Bethell v. Martyr, 1 N. R. 332. It appears from the case above mentioned by Lord Coke, that to entitle himself to the benefit of the stat. 27 Eliz. the party must be a purchaser of an existing lawful interest. Sugd. Law of Vend. 480. It remains only to observe, that each of these statutes contains a proviso in favor of conveyances made upon good consideration and bona fide. Settlements in consideration of an intended marriage have always been held to be within this proviso, as being made for a valuable consideration. Plowd. 58. Kirk v. Clark, Prec. in Ch. 275. And the consideration of marriage extends to persons not directly within it, viz. to brothers, uncles, and other relations, upon the marriage of a son; as being within the contract between him and his father. Pulvertoft v. Pulvertoft, 18 Ves. 92. And a settlement, executed after marriage, if made in pursuance of a bond (Jason v. Jarvis, 1 Vern. 286.), or other agreement before marriage, Hylton v. Biscoe, 2 Ves. 308; upon payment of money as a portion, Stileman v. Ashdown, 2 Atk. 279. Jones and March, Før. 63. Wheeler v. Caryl, Ambl. 121; or a new additional sum of mo ney; or even upon an agreement to pay money provided it be afterwards paid; will be equally valid, both at law and equity, against creditors, as well as purchasers. Brown v. Jones, 1 Atk. 190. Et vid. Ex parte Hall, 1 Ves. & B. 112. And where a wife joins with her husband in destroying the settlement made on her marriage, and a new settlement is made, such new settlement will be good, though a better provision is made for the wife and children than was contained in the original settlement. Scott v. Bell, 2 Lev. 70. Brill v. Burnford, Prec. in Ch. 113. And the better opinion, as well upon principle as in point of authority, says Mr. Sugden (in his excellent work on the Law of Vendors, 2d edit. p. 485.), seems to be, that the wife joining in barring her dower, for the benefit of her husband, will be a sufficient consideration for a settlement on her. Lavender v. Blackstone, 2 Lev. 146. Et vid. Evelyn v. Templar, 2 Bro. C. C. 148. 18 Ves.87.93. And where a husband after marriage conveyed an estate to trustees, for the separate use of his wife, the covenants by the trustees to indemnify the husband against the debts which the wife might contract, after the sepa where brigam doth signify wrangle, contention, or intricacy, for fraud is the mother of them all. (0) And on the other or usury. (0) 57 H. 8. cap. 6. 13 Eliz. cap. 3. ration, were held to be a valuable consideration, and that the settlement 5 Co. 69. Button's was good against a prior crediter. Stephens v. Olive, 2 Bro. C. C. 9. case. Idem. lib. 7. King v. Brewer, Ibid. 93 n. Sed vid. Lord St. John v. Ludy St. John, Claiton's case. 11 Ves. 526. A settlement, before marriage, even of moveable effects by (Lutw. 271.) a person indebted at the time will be good against creditors. Cadogan v. Kennett, Cowp. 432. Et vid. Jarman v. Woollaton, 3 T. R. 618. Haselinton v. Gill, 3 T. K. 620. n. Nor is it necessary that the husband should receive a portion with his wife, Browne v. Jones, 1 Atk. 190; and the fact of her k.owing him to be indebted at the time will not invalidate the transaction. Wheeler v. Caryl, Ambl. 121. Naira v. Prowse, 6Ves. 759. And if real estate form part of the settlement, and, after the marriage, the husband build on the land, or enfranchise copyholds included in the settlement, yet the creditors cannot have the benefit of these acts by way of charge against the wife. Campion v. Cotton, 17 Ves. 271. So if a bond is given on marriage and receipt of a portion, conditioned to pay a sum beyond the marriage portion, in case of death, or insolvency, such bond is good, so far as relates to the property received with the wife, but beyond that is fraudulent as against creditors, Ex parte Meaghan, 1 Sch. & Lef. 179, and Ex parte Murphy, Ibid. 44; over-ruling what is said by Lord Kenyon in Staines v. Plank, 8 T. R. 389. And a settlement by a widow, on her children, previous to her second marriage, with her husband's consent, has been held good against a subsequent purchaser. Newsteed v. Searles, 1 Atk. 265. King v. Cotton, 2 P. Wms. 674. A settlement after marriage, in favor of a wife and children, by a person not indebted at the time, and not being a trader, (st. 1 Jac. 1. c. 15. s. 5. Lilly v. Osborn, 3 P. Wms. 298. Fryer v. Flood, 1 Bro. C. C. 160), is good against subsequent creditors. Stephens v. Olive, 2 Bro. C. C. 9. Montague v. Lord Sandwich, cited 12 Ves. 148. 155. Kidney v. Coussmaker, 12 Ves. 136-156. And though a settlement after marriage (and a marriage in Scotland is sufficient, Ex parte llall, 1 Ves. & B. 112.) is fraudulent against such persons as were creditors at the time the settlement was made, Middlecombe v. Marlow, 2 Atk. 520. White v. Sansom, 3 Atk. 413. Kidney v. Coussmaker, 12 Ves. 155; yet it is otherwise, if such settlement contain a provision for debts, George v. Milbank, 9 Ves. 104; or is in pursuance of articles before marriage, Beaumont v. Thorpe, 1 Ves. 27; or if the husband was only indebted in a single debt, Lush v. Wilkinson, 5 Ves. S87; or if the debt be secured by mortgage, in which case it will not affect the settlement, Stephens v. Olire, 2 Bro. C. C. 30: but (with these exceptions) if there be creditors at the time of such settlement, and the settlement is on that account declared fraudulent, the property so settled becomes part of the assets, and all subsequent creditors are let in to partake of it, Taylor v. Jones, 2 Atk. 600. Et vid. Dundas v. Dutens, 1 Ves. jun. 198. Montague and Lord Sandwich, 12 Ves. 156n; and in one case a subsequent creditor filed what is called a fishing bill, in order to prove debts antecedent to the settlement, and thus establish a fund for the payment of his own debt. Lash v. Wilkinson, 5 Ves. 384. Et vid. Kidney v. Coussmaker, 12 Ves. 155. Lastly, it is observable, that the 27 Eliz., which was passed in favor of purchasers, only affects real estate; and the 13 Eliz., which affects personal estate, is in favor of creditors, and does not extend to the case of a purchaser. Danbeny v. Cockburn, 1 Meriv. 635. And both these statutes only avoid voluntary conveyances as against creditors and subsequent purchasers; but they are binding on the party making the same, and ail persons claiming under him. 1 Fonbl. Eq. b. 1. c. 4. s. 12. Et vid. Curtis v. Price, 12 Ves. 103. Pulvertoft v. Pulvertoft, 18 Ves. 92. Whalley v. Whal ley, 1 Meriv. 436. And if a man makes a voluntary conveyance of land, and the alienee sells the same for a valuable consideration, the land is bound, Sagittury v. Hyde, 2 Vern. 44. Prodgers v. Langham, 1 Sid. 133. Doe v. Martyr, 1 N. K. 332. Parr v. Eliason, 1 East, 92. And this rule has been applied to persons having only equitable rights. See George v. Milbank, 9 Ves. 190. And if a voluntary grantee gain credit by the conveyance to him, and a person is induced to marry him on account of such provision, the deed, though void in its creation as to purchasers, will, on the marriage being solemnized, no longer remain voluntary, but will be considered as made upon valuable consideration. Prodgers v. Langham, supra. Et vid. 9 Ves. 193. Brown v. Carter, 5 Ves. 862.-[Ed.} side, purchases, estates, and contracts, may be avoided, since Littleton wrote, by certain acts of parliament against usury above ten in the hundred, in such manner and form as by those acts is provided; which statutes are well expounded in my books of Reports, which may be read there. To them that lend money my caveat is, that neither directly nor indirectly, by art, or cunning invention, they take above ten (21) in the hundred; for they that seek by slight to creep out of these statutes, will deceive themselves, and repent in the end. There have been eight formal or orderly parts of a deed of feoffment (22); viz. 1. the premises of the deed implied by Littleton (sect. 1.); 2. the habendum, whereof Littleton (sect. 1.) speaketh; 3. the tenendum, mentioned by Littleton; 4. the reddendum: 5. the clause of warranty; 6. the in cujus rei testimonium, comprehending the sealing; 7. the date of the deed, containing the day, the month, the year, and stile of the king, or of the year of our Lord; (p) lastly, the clause of hiis testibus; and yet all those parts were contained in very few and significant words (q), hæc fuit candida illius ætatis fides et simplicitas, quæ pauculis lineis omnia fidei firmamenta posuerunt. The office of the premises of the deed is twofold; first, rightly to name the feoffor and the feoffee; and secondly, to comprehend the certainty of the lands or tenements to be conveyed by the feoffment, either by express words, or which (21) Since Sir Edward Coke's time, the rate of interest has been gradually reduced to 5 per cent. See 21 Ja. 1. c. 17. 12 Cha. 2. c. 13. and 12 Ann. st. 2. c. 16. But a greater rate of interest is still allowable in Ireland and our Plantations. It has been doubted whether the 12 Ann. did not extend to money lent on lands in Ireland or our plantations, where the mortgage is executed in Great Britain; but the 14 Geo. 3. c. 79, declares all such securities made previously to that act to be valid, notwithstanding the 12 Ann. where the interest is not more than the established rate of the particular place; and that all future securities of a like kind shall also be valid, where the interest is not more than 6 per cent. It is impossible in the compass of a note to cite the numerons cases on the statutes of usury. One of the most remarkable for the great learning and variety of the arguments is that of the Earl of Chesterfield and Janssen, 1 Atk. 301. and 2 Ves. 325.-[Hargr. n. 1. 4 a. (18).] [See ante, p. 25. n. (P).] (22) See the observations on this part of the Commentary in Mad. Form. Angl. Dissert. p. 5. See also on the subjects of ancient deeds and charters, the whole of the same Dissertation, and Nich. Engl. Hist. Libr. 2d ed. 240. Seld. Jan. Angl. b. 2. c. 2 and 3, to which may be added Mabillon de Re Diplomaticâ. ➡[Hargr, n. 5. 6 a.] may by reference be reduced to a certainty; for certum est quod certum reddi potest (P). The habendum hath also two parts, viz. first, to name again the feoffee; and secondly, to limit the certainty of the estate. Habendum. 183 a. ral intendment of the (r) Pl. Com. in (r) If in the premises lands be letten, or a rent granted, the general intendment is, that an estate for life passeth; but if May control the genethe habendum limit the same for years or at will, the haben- premises. dum doth qualify the general intendment of the premises. Throgmorton's e se. And the reason of this is, for that it is a maxim in law, (2 Co. 25. 55. 5 Co. 111. 2 Rol. Abr. 66.) that every man's grant shall be taken by construction of law most forcible against himself. 183 b. (s) 8 E. 3. 427. tit. If a lease be made (s) to two, habendum to the one for life, the remainder to the other for life, this doth alter the ge- Feoffem. & Faits, 73. neral intendment of the premises (23), and so hath it been 30 H. 8. tit. Joynt. Br. 53. Dyer, fol. oftentimes resolved. And so it is if a lease be made to 351. Pl. Com. 160. two, habendum the one moiety to the one, and the other (ob. 171, Ante, moiety to the other, the habendum doth make them tenants 65. 68. in common; and so one part of the deed doth explain the other, and no repugnancy between them, et semper expressum facit cessare tacitum (24) (0). The tenendum at this day, where the fee-simple passeth, (23) Acc. Perk. sect. 174.[Hargr. n. 2. 183 b.] (24) Acc. sec. 298. (ant. vol. 1. p. 772.) See also 2 Co. 55 a. and b. Ante, 180 b. (vol. 1. p. 728, 729.) (P) The premises of a deed contain all that part which precedes the habendum, that is, the date, the parties names and descriptions, the recital, the consideration and receipt thereof, the grant, the description of the things granted, and the exception, if any. 4 Cru. Dig. 33.—[Ed.] (Q) Where the habendum, as in the above instances, is not absolutely inconsistent with the grant in the premises, it will qualify the grant; but where it is inconsistent with the grant in the premises, as if a grant be made to A. and his heirs, habendum to him for his life, or to him and his executors for years; the grant in the premises will prevail, and the habendum be rejected. Sheph. Touch. 98. 2 Prest. Conv. 439, 440. But the courts will modify in construction the different parts of the assurance, so as to carry the intentions of the parties into effect, as far as that can be done, consistently with the rules of law. And therefore in the late case of Spyre v. Topham, where there was a grant to one person with an habendum to another person; the court decided, that in construing the Conveyance, the grant which was repugnant to the habendum, should be rejected as surplusage, and the hubendum be supported. 3 East, 115. See further, with regard to the habendum, Vin. Abr. Grant, I. K. L. and M. Prest. Ess. on Abstr. p. 98, and a note by Mr. Powell in his edition of Wood's Conveyancing, in which the law, with regard to the habendum, is concisely and accurately stated.—[Ed.] 190 b. 2 Rol. Abr. 11.) 6 a. Tenendum. Reddendum. Clause of warranty. Date. Why antiently omitted. must be of the chief lords of the fee (R). And of the reddendum more shall be said in his proper place, in the Chapter of Rents (s). Of the clause of warranty more shall be said in the Chapter of Warranties. In cujus rei testimonium sigillum meum apposui was added, for the seal is of the essential part of the deed. The date of the deed many times antiquity omitted; and the reason thereof was, for that the limitation of prescription, or time of memory, did often in process of time change; and the law was then holden, that a deed bearing date before the limited time of prescription, was not pleadable; and therefore they made their deeds without date, to the end they might allege them, within the time of prescription (T). And the date of the deeds was commonly added in the reign of E. 2. and E. 3. and so ever since. And sometime antiquity added a place, as Dutum apud D. which was in disadvantage of the feoffee; for, being in general, he may allege the deed to be made where he will (u). (R) The tenendum is now of very little use, and is only kept in by custom. It was formerly used to express the tenure by which the estate granted was to be held; viz. tenendum per servitium militare, in burgagis, in libero socagio, &c. But, all these being now reduced to free and common socage, the tenure is never specified. Before the statute of Quia emptores 18 Edw. 1. it was also sometimes used, to denote the lord of whom the land should be held; but that statute directing all future purchasers to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum has been also antiquated; though for a long time after we find it mentioned in ancient charters, that the tenements shall be held de capitalibus dominis feodi, Madox. Formul. passim; but, as this expressed nothing more than the statute had already provided for, it gradually grew out of use. 2 Bl. Com. 298, 299.-[Ed.] (S) The following circumstances are necessary to make a good reservation-1st. It must be by apt words. 2d. It must be of some other thing issuing or coming out of the thing granted, and not a part of the thing itself, nor of some thing issuing out of another thing. 3d. It must be of such a thing whereunto the grantor may have resort to distrain. 4th. It must be made to one of the grantors, and not to a stranger to the deed. Shep. Touch. 80.-[ Ed.] (T) That the date of a deed is not conclusive evidence of the time of execution, see Lord Say and Sele's case, 10 Mod. 40. Hall v. Cazenove, 4 East, 477; and that a deed may be dated or executed on a Sunday without prejudice, see Drury v. Defontaine, 1 Taunt. 131; for the statute 29 Car. 2. c. 7, for the better observance of the lord's day, applies to process and proceedings of the courts, and dealings in the course of trade, and not to the private transactions of individuals, as between themselves by way of conveyance. Prest. Conv. 362, 363-[ Ed.] (U) It is not absolutely necessary, that a deed should be dated; for if a deed has no date, or bears an impossible date, it will take effect from the time of its delivery. Cromwell v. Grunsden, 2 Salk. 462. If two deeds bear the same date, and manifestly contain but one agreement, that deed shall be presumed to have been first executed, which will best support the clear intention of the parties. Taylor v. Horde, 1 Burr. 106. With respect to the parties to a deed, see the last chapter; as to the description of the things granted, see ant. vol. 1. p. 199. et seq.; and as to the clause of exception, see post, 47 a. 143 a. and the notes there.-[Ed.} |