4-1 



SETTLEMENT. 



SETTLEMENT. 



IS'J 



persons who have the benefit of the settlement should have full notice 

 of such insolvency. A conveyance or assignment of property in con- 

 sideration of marriage stands on the same ground with a sale for money, 

 which is not affected by the insolvency of the vendor. If, however, 

 the settlor be a trader, and a fiat in bankruptcy be issued against him 

 prior to the execution of the settlement upon which he is afterwards 

 duly found a bankrupt, such settlement, like all other conveyances of 

 the bankrupt under the same circumstances, will be void ; and it would 

 seem that a settlement must in all cases be void as respects the wife, 

 if she had notice of a prior act of bankruptcy, and a petition be filed 

 within twelve calendar months after such act of bankruptcy. (2 & 3 

 Viet. c. 11, 8. 13.) 



The marriage consideration does not extend or give the character of 

 purchasers to all persons in whose favour limitations may have been 

 introduced into the settlement. In relation to any other persons than 

 the husband and wife and the issue, the settlement is, it seems, to be 

 considered as voluntary, and subject therefore to the rules applicable 

 to voluntary gifts and covenants. 



Settlements made after marriage, it is obvious, can derive no support 

 from the consideration of marriage, and their validity or invalidity must 

 therefore depend upon other circumstances. 



A postnuptial settlement by the husband, of any species of property 

 made in consequence of a valuable consideration moving either from 

 the wife herself, who gives up an interest that she possesses in property 

 over which she has a disposing power, or from her relations or friends, 

 is good against all persons whatsoever, if the consideration be not so 

 inadequate as to raise the presumption of fraud. And even in case of 

 inadequate consideration, the settlement, it seems, will be good to the 

 amount of the consideration. It is sufficient if the consideration, 

 though not paid, is properly secured. Contemporaneous settlements 

 will in general be presumed to have been made in consideration of each 

 other ; and it seems that parole evidence of consideration is admissible, 

 though none appear upon the instrument itaelf. 



The statute 13 Eliz. c. 5, enacts that " all conveyances, 4c., of lands 

 and tenements, goods and chattels, made of malice, fraud, covin, col- 

 lusion, or guile, for the intent or purpose of delaying or defrauding 

 creditors and others of their just and lawful actions, suits, debt*, &c. 

 shall be deemed and taken (only as against those persons, their heirs, 

 successors, executors, &c.) to be clearly and utterly void, frustrate, and 

 of none effect ; any pretence, colour, feigned consideration, expressing 

 of use, or any other matter or thing to the contrary notwithstanding." 

 But the act is expressed not to extend to any interest or estate made, 

 conveyed, or assured, upon good consideration and bond fide, to any 

 person or persons " not having at the time of any such conveyance or 

 assurance to them made any manner of notice or knowledge of such 

 covin, fraud, or collusion as is aforesaid." Upon this statute it has 

 been determined, (1) That if the settlor be not indebted at the time, 

 the settlement, even though entirely voluntary, is good against subse- 

 quent creditors; (2) That the mere existence of debts at the date of 

 the settlement will not invalidate it if the settlor be solvent that is, 

 if he be possessed of property sufficient for the payment of his debts 

 independent of the property so aliened ; (3) That a settlement which 

 might have been invalidated in the hands of the donee will be good 

 against the creditors of the donor in the hands of a purchaser from the 

 donee for valuable consideration without notice. 



Voluntary obligations not affecting particular property, such as 

 bonds, though the grantor should have been solvent at the time of 

 making them, will not, it seems, entitle the grantee to come in pan 

 paau with creditors for value, who will always be preferred ; but the 

 cancellation or release of a voluntary obligation, if untainted by fraud, 

 may form a valuable consideration for the conveyance of property or 

 for a substituted engagement. 



By the 27 Eliz. c. 4, all conveyances, &c., of lands, tenements, or 

 hereditaments are declared void when made with intent to defraud 

 subsequent purchasers for money or other good consideration ; " any 

 pretence, colour, feigned consideration, or expressing of any use or 

 uses, to the contrary notwithstanding." There is a saving of all con- 

 veyances made upon good ctmtideration, and bond fide. It also makes 

 void, as against the same persons, all conveyances " with any clause, 

 provision, article, or condition of revocation, determination, or alteration 

 at (the grantor's) will or pleasure," whether such clause extend to the 

 whole interest conveyed, or only partially affect it ; but then follows 

 a proviso " that no lawful mortgage made bond fide, and without fraud 

 or covin, upon good consideration, shall be impeached or impaired by 

 force of this act." This statute has been construed to extend to all 

 voluntary conveyances, though not in fact made with intent to defraud, 

 and though the purchaser had notice of the prior conveyance. The 

 consequence of this is, though probably not intended by the framers 

 of the Act, that it is impossible to make an irrevocable free gift of 

 lands or tenement*. 



The statute 27 Eliz. c. 4, does not apply to personal estate. It 

 has been determined on this act, by analogy to the determination on 

 the last-mentioned act as to creditors, that a purchaser from a volun- 

 tary grantee will be preferred to a subsequent purchaser from the 

 grantor. The good consideration mentioned in this and the preceding 

 statute must be a valuable consideration (that is to say), either a pro- 

 perty or marriage consideration. The consideration of blood has no appli- 

 cation to either of these statutes, and therefore a conveyance made in con- 



ABTS A.KD SCI. DIV. VOL. VII. 



sideration of " natural love and affection," as in the case of a postnuptial 

 settlement upon a wife and children, is considered, for the purposes of 

 these statutes, as voluntary. It has been decided, however, that a hus- 

 band, having made a voluntary settlement on his wife and children, has 

 no equity to compel specific performance of his contract with a subse- 

 quent purchaser ; but he can sell the property which he has so settled, 

 and the purchaser will have a good title, and can enforce performance 

 of the contract for sale, if the husband should refuse to convey the 

 property. 



By stat. 21 Jac. I., c. 19, all voluntary settlements of traders were 

 invalidated by their bankruptcy, though they might have been solvent 

 at the time of making them ; but the stat. 6 Geo. IV., c. 16, s. 73, and 

 12 & 13 Viet., c. 106, s. 126, placed the settlements of traders on the 

 same footing with voluntary alienations in general. 



Property cannot be settled so that the interest taken by any person 

 under the settlement shall be unaffected by his bankruptcy ; but it 

 may be given to a man until he shall become bankrupt, provided there 

 is a gift over of the property on that event. In the same manner the 

 property coming from the wife may be settled on the husband so as to 

 be devested on his bankruptcy. But when the property is the hus- 

 band's own, it has been determined that, though the claims of the 

 husband's creditors might have been defeated by a trust of the whole 

 for the separate use of the wife, a limitation of the property to the 

 husband until his bankruptcy, with a gift over in that event to the 

 wife or any other person, is void. Upon the same principle, a bond or 

 other obligation given by the husband upon his marriage, conditional 

 for the payment of a sum of money to trustees for his wife and children 

 in the event of his bankruptcy, is void as against his creditors who 

 claim under the fiat or adjudication, if he has received no portion 

 with his wife ; but if he has received a portion with her, the obliga- 

 tion, being considered so far as a settlement of the wife's property, will 

 be good against the creditors to the extent of it. 



3. As to secret settlements aiid agreements in fraud of the marriage 

 contract. 



Secret settlements of her property made by the wife pending the 

 treaty for marriage, without the privity of the husband, are void as 

 against him, if made in derogation of his marital rights ; and this, it 

 seems, is equally true, whether the husband knew of the existence of 

 the property before the marriage or not. The rule applies to every 

 species of gratuitous incumbrance created by the wife upon her pro- 

 perty under such circumstances. 



The courts of equity, upon the general principles on which they act 

 in cases of fraud, will set aside all secret covenants or agreements 

 entered into contrary to the good faith of the marriage treaty, and not 

 with the privity of all the parties to the settlement. Relief in such 

 cases will not be refused even to a person who was a party to the frau- 

 dulent transaction of which he complains. 



Upon the same principle, if a creditor or holder of any security or 

 charge on the estate of one who is engaged in a treaty of marriage, 

 misrepresent the amount of his debt or incumbrance to any of the 

 parties to the contract, whether for the purpose of promoting the 

 marriage, or for any other purpose, he will be bound by such mis- 

 representation. Money which has been lent to a woman for the pur- 

 pose of being represented as her own, cannot, after the marriage, be 

 claimed as a debt from the husband. 



4. Settlements of real property usually consist of limitations of an 

 estate or estates for life to one or more persons, that is (where the 

 settlement is made on marriage), to one or both parents and the sur- 

 vivor of them, with remainders over to their children. This is what 

 is called a limitation in strict settlement. By this method the estate 

 is rendered inalienable till the eldest son of the marriage attains the 

 age of twenty-one, when he can join with his father in barring his own 

 estate tail and all the remainders over, whereby a new estate in fee 

 simple is acquired, and the property may be settled again. [PRIMO- 

 GENITURE ; UE.M.UNDKU.] This was formerly effected by means of a 

 common recovery [RECOVERY], but it is now effected by a deed exe- 

 cuted under the provisions of 3 1 & 4 Wm. IV., c. 74. By this act fines 

 and recoveries are abolished, and the objects of these old modes of 

 assurance are now obtained by a deed which must be enrolled in 

 Chancery within six months after its execution. As, before this act, 

 a tenant in tail expectant on a particular estate of freehold could only 

 have barred his own issue by a fine [FINE], unless he could obtain the 

 concurrence of the owner of the particular estate in suffering a 

 recovery, so, under the new act, his power is equally limited, unless 

 he can obtain the concurrence of the owner of the first existing estate 

 under the settlement (whether it be for life or lives, or any greater 

 estate, not being an estate for years) prior to the estate tail, who is 

 called the protector of the settlement. The act contains several pro- 

 visions for the purpose of ascertaining who shall be protector in the 

 cages of joint ownership, coverture, and the existence of estates for 

 years or in dower ; and it provides for the cases where the protector 

 is a lunatic, or convicted of treason or felony. The act also gives the 

 settlor power to appoint by the deed a protector of the settlement, in 

 lieu of the person who would otherwise have been the protector. The 

 consent of the protector must be given either by the deed of assurance 

 or by a separate deed, which must be enrolled in the same manner as 

 the assurance itself. The same act repeals (except as to settlements 

 made before the 28th of August, 1833) the statute of 11 Hen. VII., 



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