Copyright
Frederick Prideaux.

Prideaux's forms and precedents in conveyancing : incorporating Wolstenholme's forms and precedents with dissertations and notes on its law and practice (Volume 2) online

. (page 44 of 138)
Online LibraryFrederick PrideauxPrideaux's forms and precedents in conveyancing : incorporating Wolstenholme's forms and precedents with dissertations and notes on its law and practice (Volume 2) → online text (page 44 of 138)
Font size
QR-code for this ebook


Will be the proper persons to be registered {h). As the register
has the effect of keeping the trusts off the title, except where a
lease or easement is granted, the land may be conveyed by the
same deed by which the trusts of the proceeds are declared.

A strict settlement of registered land will, with the addition Ou settlement

of registered

of the recital of the registration, be in the same form as if the land, first

tenant for life

land were unregistered. If the settlor is to be the first tenant should be

registered as

for life, he should remain the registered proprietor, and no proprietor,
instrument of transfer is necessary (i). If not, he should
transfer the land in the prescribed manner to the first tenant
for life or other the persons who have the powers of a tenant
for life.

When, as is usual, the land is to be registered in the name of Eestriction

to 1)6 rG*^is-

the tenant for life, application must be made for the registration of tered in^that
the prescribed restriction. The restriction will prevent any regis-
tered disposition not in accordance with the powers vested in a
tenant for life by the S. L. Acts (k).

On an appointment of new trustees of the settlement, Eestriction to

be modified

application should be made to alter the terms of the registered on change of

trustees.

restriction by substituting the name of the new trustee for
the retiring or deceased one (/).

Sect. V. — Settlements hi/ infants (m).
The Infant Settlements Act, 1855, authorises any male infant infant may

. make settle-

over twenty years oi age, and any female infant over seventeen, ment on

. . p 1 /n T 1 marriage with

with the leave oi the Court, to make a valid settlement, or contract sanction of

. , Court.

(h) Where the trust for sale is made exercisable only with the consent of
some person or persons, then the restriction in Form 8 in the first schedule
to the Eules may be adapted.

(i) See r. 129.

(k) See rr. 80, 128, Forms 6 and 7, in the first schedule ; see also Forms
9 and 12.

(1) Many suggestions have been made before the Eoyal Commission on
Land Transfer as to the best methods of dealing with registered settled land,
and it seems probable that some alterations may be made in the practice.

(m) See generally on this subject, Vaizey on Settlements, p. 30 et seq.



316



SETTLEMENTS (iNFANTS).



Cases on the
construction
of the Infant
Settlements
Act.



Jurisdiction
of Court as to
settlement of
ward's pro-
perty on her
marriage with-
out sanction.



for a settlement, of " all or any part of his or her property,
or property over which he or she has a power of appointment,
whether real or personal, and whether in possession, reversion,
or expectancy." But this enactment does not apply to powers
in regard to which it is expressly declared that they shall not be
exercised by an infant, and any appointment or disentailing
assurance executed by an infant tenant in tail is void if the
infant dies under twenty-one.

A settlement may be made under the Act after the marriage
has taken place (w) ; and if a female marries under seventeen,
the settlement may be made on her attaining that age (o). The
settlement may be extended to the wife's after-acquired property,
as being property "in expectancy" within the meaning of the
Act (j)). An appointment made under the Act by a female
infant, not being a tenant in tail, to the trustees of the settlement
upon trusts which fail for want of objects, creates a resulting
trust for the appointor, so that on her death under full age the
appointed fund goes to her husband as her administrator (q).

It has been long settled that if a man marries a ward of Court
without the leave of the Court, he is liable to be committed to
prison until he executes a proper settlement of the lady's pro-
perty, and that in a case of intentional contempt of Court the
settlement will be so framed as to exclude him from all interest
in that property. But the Court has no jurisdiction to compel
a ward to make a settlement of his or her own property (r).

Before approving a settlement under the Infant Settlements
Act the Court will not direct an inquiry as to the propriety of the
contemplated marriage (s), unless the infant is a ward of Court.



{n) Be Sampson and Wall (1884), 25 Ch. D. 482 ; 53 L. J. Ch. 457.

(o) Be Fhillips (1887), 34 Ch. D. 467 ; 56 L. J. Ch. 337.

(jo) Be Johnson, 1891, 3 Ch. 48; 60 L. J. Ch. 499; but t/. AUcard v.
Walker, 1896, 2 Ch. 369 ; 65 L. J. Ch. 660.

{q) Be Scott, 1891, 1 Ch. 298 ; 60 L. J. Ch. 461.

(r) Seaton v. S. (1888), 13 A. C. 61 ; oT L. J. Ch. 661 ; Be Levjh (1888), 40
Ch. D. 290 ; 58 L. J. Ch. 306.

(s) Be Dalton (1856), 6 D. M. & G. 201 ; 25 L. J. Ch. 751.



SETTLEMENTS (iNFANTS). 317

A settlement made by an infant without the leave of the Court Settlement by

' •iii/\. • ' ^ • T infant not

under the Act is not void, but voidable (t), i.e., it is binding lander Act

. , • 1 • 11- voidable.

unless the infant elects to avoid it (a) withm a reasonable time
after coming of age (x).

If the wife on coming of age elects to affirm it, and does so by Deedcon-

,,, ., firming a

deed, the deed need not be acknowledged, though she was voidable

. settlement

married before 1883 (//). need not be

acknowledged.

Where the intended wife is an infant entitled to personal whether and
estate (including chattels real) which, but for the M. W. P. Act, setSment^by *
1882, would pass to the husband on the marriage, an effectual property 0^*^^
settlement could be made of it by the husband without the aid
of the Infant Settlements Act. And if the infant's interest was a
reversionary interest in personalty a settlement made by the
husband alone would have been effectual in the event of its
falling into possession during the coverture, or of the husband
surviving the wife. But the settlement would not have been
binding on the wife if the husband died before the property
fell into possession (z). Now, however, by the M. W. P. Act, Effect of

^ V y > » J M. W. P.Act,

1907, s. 2, a settlement or agreement for a settlement made 1907, s. 2.

after 1907 by the husband or intended husband, whether before

or after the marriage, respecting the property of any woman he

may marry or have married is not to be valid unless it is

executed by her if she is of full age, or confirmed by her after

she attains full age. If she dies an infant any covenant

or disposition by her husband contained in the settlement

or agreement is to bind or pass any interest in any property

of hers to which he may become entitled on her death and

{t) Burnahy v. EquiiaUe, &c. Socij. (1885), 28 Ch. D. at p. 419 et seq. ; 54
L. J. Ch. 466.

{u) Smith V. Lucas (1881), 18 Oh. D. 531 ; Cooper y. C. (1888), 13 A. 0. 88;
Duncan v. Dixon (1890), 44 Ch. D. 211 ; 59 L. J. Ch. 437 ; Viditzy. O'Eayan,
1900, 2 Ch. 87 ; 69 L. J, Ch. 507.

(cc) See Edwards v. Carter, 1893, A. C. 360 ; 63 L. J. Ch. 100 ; lie Jones,

1893, 2 Ch. 461 ; 62 L. J. Ch. 996.

{y) Wilder v. Pigott (1882), 22 Ch. D. 263; 52 L. J. Ch. 141 ; Be Hodson,

1894, 2 Ch. 421 ; 63 L. J. Ch. 609.

(z) Stevens V. Trevnr-Oarricl-, 1893, 2 Ch. 307 ; 62 L. J. Ch. 660; Bucldand
V. B., 1900, 2 Ch. 534 ; 69 L. J. Ch. 648.



318 SETTLEMENTS (VOLUNTARY).

which he could have bound or disposed of if the Act had not
been passed (a).

Sect. VI. — Voluntary dispositions, how far valid as against
(1) suhsequent purchasers, (2) creditors, and (3) the settlor
himself and his representatives.

27 Eiiz. c. 4, (1) By the Act 27 Eliz. c. 4, every conveyance of lands, tene-

conveyances of ments, or hereditaments, made with the intent to defraud a
with intent subsequent purchaser, is made void against such purchaser, and
subsequent all persons claiming under him, subject to a proviso that the Act
shall not defeat any conveyance made for good consideration, and
Also convey- in good faith. And by the same Act every conveyance of lands,

ances with . -i • ^ t •

clause of tenements, and hereditaments, made with a condition or revoca-

revocation. . , . , .

tion at the grantor's pleasure, is made void against a subsequent

purchaser.
All voluntary According to the construction put upon this Act by the. Courts,
formerly held every Voluntary conveyance was held to be fraudulent and void

void under . i i i i i i • p

this Act. against a subsequent purchaser, whether the latter had notice oi

it or not {h). But the law in this respect is now altered by the
Voluntary Voluntary Conv. Act, 1893, which provides as follows : —

Conveyances

Act, 1893. g_ -2^ Subject as hereinafter mentioned, no voluntary conveyance of

to°b'e'voi'{f^'^^^ ^"y lands, tenements, or hereditaments, whether made before or after
merely because the passing of this Act, if in fact made bond fide and without any
fraudulent intent, shall hereafter be deemed fraudulent or covinous
within the meaning of the Act twenty-seven Elizabeth, chapter four, by
reason of any subseqvient purchase for value, or be defeated under any
of the provisions of the said Act by a conveyance made upon any such
purchase, any rule of law notwithstanding.

S, 3. Tiiis Act does not apply in any case in which the author of a
voluntary conveyance of any lands, tenements, or hereditaments has
subsequently, but before the passing of this Act, disposed of or dealt
with the same lands, tenements, or hereditaments to or in favour of a
purchaser for value.

S. 4. The expression " conveyance " includes every mode of disposition
mentioned or referred to in the said Act of Elizabeth.

(a) As to the effect of this section, see note to Form No. 48, Settlements
(Personal).

(&) Doe V. Manning (1807), 9 East, 59.



SETTLEMENTS (VOLUNTARY). 319

It follo^YS that according to the present law, a voluntary con- Under present

law, the

vevance of land is good against a subsequent purchaser for value, intention to

•^ o o ± •- defraud must

even though he may have no notice of it, unless it can be shown be proved,
that it was really made with a fraudulent intent. If such intent
is proved, but not otherwise, the conveyance will be void against
a subsequent purchaser in like manner as under the Act 13 Eliz.
c. 5, it would be void against creditors.

(2) By the Act 13 Ehz. c. 5, all gifts, grants, and conveyances 13 Eiiz. c 5

iii3jKGS void £lll

of lands, tenements, hereditaments, goods and chattels, and all dispositions

of land or

bonds, &c., made with intent to delay, hinder, or defraud chattels made

with intent

creditors, are made void against such creditors ; but the Act to defraud

creditors.

contains a saving in favour of purchasers for vaUiable considera-
tion without notice.

In order to come within this Act, a deed must be made with Construction

of Act.

intent to delay, hinder, or defraud creditors. If such an intent
is clear the deed will be void, even if made for valuable considera-
tion (c). A voluntary de^d will be presumed to be made with
intent to defraud, &c., creditors, if that will be its necessary
effect having regard to the amount of property included in it, and
the amount of the settlor's liabilities at the time (d).

A settlement of leasehold property to which a liability is Settlement of

leaseholds,

attached is not a settlement for value, so as to be good on that whether

wiihin the

account against creditors under the Act 13 Eliz. c. 5 (r). statute.

If a deed is set aside as being void against creditors under Subsequent

creditors may

the statute, the property comprised in it becomes assets for the come in.
payment of debts generally, so that subsequent creditors are
entitled to participate in it ( /').



(c) Holmes v. Penney (1866), 3 K. & J. 90; 26 L. J. Cli. 179.

{d) Freeman v. Pope (1870), L. E. 5 Ch. 538 ; 39 L. J. Ch. 689 ; Ee Holland,
1902, 2 Ch. 360, 381; 71 L. J. Ch. 518; see- also Edmunds v. E., 1904,
P. 362 ; 73 L. J. P. 97 ; Ideal Bedding Co. v. Holland, 1907, 2 Ch. 157 ; 76
L. J. Ch. 441. The doctrine in the text is too well established to be shaken
by the observations of Lord Esher, M.E., in Ex jJ. Mercer (1886), 17 Q. B. D.
290 ; 55 L. J. Q. B. 558.

(e) Ridler v. R. (1882), 22 Ch. D. 74; 52 L. J. Ch. 343.

(/) Richardson v. Smallwood (1822), Jac. 552.



320



SETTLEMENTS (VOLUNTARY).



Voluntary
settlement may
be set aside, if
settlor about
to engage in
hazardous
business.



Clause deter-
mining life
interest on
bankruptcy
does not
wholly
mvalidate
voluntary
settlement.

Consideration
may be proved
by extrinsic
evidence.



Saving clause
in Act, to
whom it
ai^plies.



Marriage a

valuable

consideration.



A voluntary settlement may be set aside, although the settlor's
assets, irrespective of what is included therein, may be sufficient
to pay his debts at the date of the deed, if the settlor contem-
plated a state of things which might not improbably result in
bankruptcy or insolvency, as if he were engaged or engaging in a
hazardous or untried business, or incurring heavy liabilities (g) ;
and a voluntary deed may be set aside at the suit of a subsequent
creditor, although there may be no creditor whose debt was in
existence at the date of the settlement (/<).

A voluntary settlement by a person not indebted at the time,
and not in trade, but who many years afterwards embarked in
trade and became bankrupt, is not fraudulent and void against
creditors under the Act 13 Eliz. c. 5 merely because it contains
a clause determining the settlor's life interest on bankruptcy (i).

A settlement which is in form voluntary may be proved by
extrinsic evidence to have been made for a valuable considera-
tion (k), and an instrument voluntary in its inception may
hj ex post facto matter cease to be voluntary in the hands of
those who have given value on the faith of it, or if it has formed
part of the inducement to a marriage (l).

The saving clause in the Act in favour of purchasers for
value without notice extends to the purchaser of any interest
under the deed impeached, whether that interest be legal or
equitable, and prevents the deed from being void against
him (:m) .

Marriage is a valuable consideration, hence a settlement
made previously to and in consideration of marriage in



(g) ExiJ. Mussell (1882), 19 Ch. D. 588; 51 L. J. Ch. 521.

(//) Tai/lor V. Coenen (1876), 1 Ch. D. 636; see also Be Lane-Fox, 1900,
2 Q. B. 508 ; 69 L. J. Q. B. 722.

(i) Re Holland, 1902, 2 Ch. 360; 71 L. J. Ch. 518.

(/.•) Pott V. Todhunter (1845), 2 Coll. 76; 7?e Holland, sup.

(l) George v. Milhanhe (1803), 9 Ves. 193 ; Paijne v. Mortimer (1859), 1
Giff. 118 ; aff. 28 L. J. Ch. 716 ; 4 De G. & J. 447.

(m) Halifax Bnkg. Co. v. QUdhill, 1891, 1 Ch. 31 ; 60 L. J. Ch. 181 ; and
see. Be Slohodinshj, 1903, 2 K. B. 517 ; 72 L. J. K. B. 883.



SETTLEMENTS (VOLUNTARY). 821

favour of the husband and wife and their issue is a settlement
for vahiable consideration, so as to exchide the above-mentioned
Acts of EHzabeth (n). But a settlement made after marriage, Limitations

. . Ill settlement

unless m pursuance of a prior agreement (o), or unless there is in favour of

collateral

some other consideration, is voluntary ; so also if an ante-nuptial relations,

prima facie

settlement contains limitations in favour of collateral relations' voluntary,
or strangers, such limitations are prima facie voluntar}^ and so
is a provision made by either party for a child by a former
marriage, or an illegitimate child {p). Again, a covenant in a
marriage settlement will not be enforced in favour of volun-
teers ipp). Solemnisation of marriage within the prohibited
degrees is not a marriage constituting a valuable consideration,
or properly so called (7).

If a settlement, whether of the husband's or the wife's lands, AVhere
contains limitations in favour of strangers to the marriage con- to collaterals

. T , . /-IT • l_^ • • 1 •! T » 'T^re mixed up

sideration (including in this expression children of a former or with those to

children, the

of a subsequent marriage), which are so mixed up with limitations whole settle-
ment will be
in favour of persons withm such consideration that effect cannot upheld.

be given to the provisions in favour of those within the considera-
tion without giving effect also to those in favour of the strangers,
the whole settlement will be upheld (r).

A post-nuptial settlement made before 1883 by husband and a slight eon-
wife of the wife's property for her separate use for life, with sufticLTto
remainder to the husband for life, with remainder to the post-nuptial

. settlement.

(«) Be Reis, 1904, 2 K. B. 7(39 ; 73 L. J. K. B. 929 ; aff. on another point
1905, A. C. 442 ; 74 L. J. K. B. 918.

(0) Be Holland, 1902, 2 Ch. 360 ; 71 L. J. Ch. 518.

(p) Be Cameron and Wells (1887), 37 Ch. D. 32 ; 57 L. J. Ch. 69 ; Be Mesfre
V. West, 1891, A. C. 264; 60 L. J. P. C. 66 ; see also A.-G. v. Jacobs Smith,
1895, 2 Q. B. 341 ; 64 L. J. Q. B. 605. These cases, and also the cases in
the subsequent notes (5) and (/•), were decided under the Act 27 Eliz. c. 4.
But the decisions are equally applicable to cases under the Act 13 Eliz. c. 5.

{pp) ReD'Anrjihau (1880), 15 Ch. D. 228; 49 L. J. Ch. 756; Re Plumptre.
1910, 1 Ch. 609 ; 79 L. J. Ch. 340.

(q) Phillips V. Prohijn, 1899, 1 Ch. 811 ; 68 L. J. Ch. 401; XealcY. N
(1898), 79 L. T. 629.

(/•) Vlaiiton V. Wilton (1818), 3 Madd. 302, n. ; Newstead y. Searles (1737),
1 Atk. 264 ; Maclde v. Herhertsou (1884), 9 A. C 303.

P. — VOL. II. 21



322



SETTLEMENTS (VOLUNTARY).



revisions of
Bankr. Act,
1883, as to
voluntary
deeds.



Enactment
does not apply
to covenant to
pay money.



children, has been held to be a settlement for valuable con-
sideration, such consideration being the modification by the
husband of his life interest in possession, and by the wife of
her inheritance (s).

But as regards property belonging to the wife for her separate
use, or coming to her under the M. W. P. Acts, such a settlement
would be by the wife alone, and therefore voluntary (t).

The rule by which voluntary settlements are void against
creditors is extended by the Bankr. Act, 1883, s. 47, which
provides as follows : —

(1) Any settlement of property not being a settlement made before
and in consideration of marriage, or made in favour of a purchaser or
incumbrancer in good faitli, and for valuable consideration (u), or a
settlement made on or for the wife or children of the settlor of property
which has accrued to the settlor after marriage in right of his wife,
shall, if the settlor becomes bankrupt within two years from tlie date
of the settlement, be void against the ti-ustee in the bankruptcy, and
shall, if the settlor becomes bankrupt at any subsequent time within ten
years after the date of the settlement, be void against the trustee in the
bankruptc}^ unless the parties claiming under the settlement can prove
that the settlor was at the time of making the settlement able to pay all
his debts without the aid of the property comprised in the settlement,
.and that the interest of the settlor in such property had passed (tv) to the
trustees of the settlement on the execution thereof.

(2) Any covenant or contract made in consideration of marriage for
the future settlement on or for the settlor's wife or children of any money
or property wherein he had not at the d^te of the marriage any estate
or interest, whether vested or contingent, in possession or remainder, and
not being money or property of or in right of his wife, shall, on his
becoming bankrupt before the property or money has been actually
transferred or paid pursuant to the contractor covenant, be void against
the trustee in bankruptcy,

(3) "Settlement" shall, for the purposes of this section, include any
conveyance or transfer of property.

This section, so far as it re-enacts s. 91 of the repealed Act of



(s) Be Foster mid Ustn- (1877), 6 Ch. D. 87 ; 46 L. J. Ch. 480.

{t) Shurmur v. Se<hjwick (1883), 24 Ch. D. 597 ; 53 L. J. Ch. 87.

(u) The release of a claim is sufficient to constitute a person " a purchaser
for valuable consideration " within this section : Be Pope, 1908, 2 K. B.
169 ; 77 L. J. K. B. 767, and see also on this section, Dart, 7tli ed., 942.

{m) Shrager v. March, 1908, A. C. 402 ; 77 L. J. P. C. 105.



SETTLEMENTS (VOLUNTARY ). 323

1869, applies to settlements executed before as well as after the
Act of 1883 (x), but does not apply to a covenant for payment
of a sum of money not specifically ear-marked (i/).

It has been decided that, notwithstanding s. 47 of the Act of Donee under

voluntarj'

1883, the donee, under a voluntary settlement selling within ten settlement can

make a title

years after its date, can make a good title to the purchaser (z). within the

ten years.

The effect of an order setting aside a settlement under this
section is to accelerate subsequent incumbrances (a).

A voluntary disposition of property is valid against the Voluntary

covenants and

settlor, but the disposition must be complete, i.e., the settlor settlements are

binding on the

must have done everything which according to the nature of the settlor if com-
plete, but not
property is necessary to be done on his part. Thus, if the legal otherwise.

owner of Consols, standing in his own name (h), or of bank

shares transferable only by entry in the bank books (c), purports

to assign such Consols or shares by deed, or if a person possessed of

leasehold property pur^jorts to assign it by a writing not under

seal (d), or if the owner of shares in a colliery signs an entry in the

partnership books, to the effect that he agrees to transfer such

shares, which entry is not sufficient to pass them according to the

partnership articles (e), or if the owner of railway stock hands over

the certificate of such stock, saying, " These are yours," or using

words to that effect (/), in each of these cases the intended gift,

if in favour of a volunteer, is inoperative. On the other hand,

a voluntary assignment by deed or writing of a legal or equitable

chose in action (g), or of a reversionary interest in stock standing

(x) Exp. Daivson (1875), L. E. 19 Eq. 433 ; 44 L. J. Bk. 49 ; Exp. Todd
(1887), 19 Q. B. D. 186 ; oH L. J. Q. B. 431.

(y) Exp. Bishop (1873), L. E. 8 Cla. 718; 42 L. J. Bk. 107; Ex p. Cooper
(1885), 2 Morrell, 223.

[z) Re Carter and Kenderdhie, 1897, 1 Ch. 77(3 ; 66 L. J. Ch. 408.

(o) Sangufnetti v. StucJcey's Bk., 1895, 1 Ch. 176; 64 L. J. Ch. 181;
Be Farnham, 1895, 2 Ch. 799; 64 L. J. Ch. 717; and see Lister v. Hooson,
1908, 1 K. B., at p. 181 ; 77 1;. J. K B. 161.

(b) Beech v. Keep (1854), 18 Beav. 285 ; 23 L. J. Ch. 539.

(c) MiJroy v. Lord (1862), 4 D. F. & J. 264 ; 31 L. J. Ch. 798.

{d) Riclmrds v. LMbridye (1874), L. E. 18 Eq. 11 ; 43 L. J. Ch. 459.
{e) Hearthy v. XicJwlson (1875), L. E. 19 Eq. 233 ; 44 L. J. Ch. 277.
(/) Moore V. 31. (1874), L. E. 18 Eq. 474 ; 43 L. J. Ch. 617.
{y) Fortescue v. Burnett (1834), 3 M. & K. 36 ; 2 L. J. Ch. 98 ; Hardiny v.
//. (1886), 17 Q. B. D. 442 ; 55 L. J. Q. B. 462.

21—2



324



SETTLEMEN TS ( VOLUN T A R Y ) .



Vohantary
agreement
cannot be
enforced, but
voluntary
declaration of
trust good.



Effect of
recital of
ante-nui)tial
agreement.



in the name of a trustee {h), or of money owing on a bill of
sale (/), will be sustained, on the ground that the assignor has
done all that he can, having regard to the nature of the property,
to divest himself of his interest ; nor is it necessary that notice
of the assignment shall have been given to the debtor or the
trustee, the giving of such notice being an act within the province
of the assignee rather than the assignor.

A voluntary agreement, whether by deed or writing, to make a
disposition of property in favour of another cannot be enforced,
and the voluntary assignment of a mere sjjes successionis can
only operate as an agreement (A). A voluntary declaration of
trust, being a complete transaction, is, however, valid (/). A
declaration of trust of lands, tenements, or hereditaments must
be in writing (?«), but of any other property may be either in
writing or by parol (n). In some cases it has been sought to
sustain, as valid declarations of tfust, instruments purporting to
be assignments, but which are incomplete as such ; but it is
now well settled that the Court will not treat an incomplete gift
as if it were a declaration of trust (o). Thus, an imperfect
assignment of furniture by a husband to his wife by letters has
been held void (j)). The true test is whether anything remains



Online LibraryFrederick PrideauxPrideaux's forms and precedents in conveyancing : incorporating Wolstenholme's forms and precedents with dissertations and notes on its law and practice (Volume 2) → online text (page 44 of 138)