Eliz. inter

Lacher in the

the party without words, so may a deed be delivered by words (k) Tr. 43 without any act of delivery (18), as if the writing sealed lieth upon Hawkesby & the table, and the feoffor or obligor saith to the feoffee or obligee, King'sBench. Go, and take up the said writing, it is sufficient for you, or it will Hill 12 Ja. R. serve the turn; or, Take it as my deed, or the like words, it is a mon place. sufficient delivery (19) (M).

in the Com

(5 Co. 119 b.) Secus, if made to a stranger.

(7) 13 H. 8. 19 H. 8. 8. 4 E. 3. 18. 13 H. 4. &. (3 Co. 26 b. 1 Leon. 140. 2 Rol. Abr. 24.) Delivery may be made without words; or by words without an act of delivery.

(N) Note, that purchasers of lands, tenements, leases, and heredita- 3 b. ments, for good and valuable consideration, shall avoid all former

and Palm. 504. according to which the court was divided in opinion.--[Hargr. n. 5. 36 a. (222).]

[See ante, vol. 1. p. 185. n. (c).]—[Ed.] (18) "The obligor seals obligation, and throws it upon the table without other circumstances; this is not a delivery. But if he throws it towards the obligee, or if the obligee immediately takes it, and the obligor says nothing, it is a delivery. M. 29. and 30. Eliz. Rot. 636. Staunton and Chambers." Hal. MSS.-See S. C. in Ow. 95. Cro. Eliz.

Consideration.

122. Dy. ed. 1688. fo. 192 b. in marg.— [Hargr. n. 6. 36 a. (223).]

(19) "T. 3 Eliz. Gibson v. Tenant, Beadl. n. 140." Hal. MSS.-See S. C. in N. Bendl. 92. and Dy. 192. See further as to the delivery of deeds, Shep. Touchst 57. Com. Dig. Fait, A. 3. Vin. Abr. Faits, I. and K.-[Hargr. n. 7. 36 a.]

[That circumstance alone without an actual delivery, may be equivalent, and amount to a delivery, see Goodright v. Straphan, 1 Cowp. 204.]-[Ed.]

(M) A deed may be delivered to the party himself to whom it is made, or to any other person, by sufficient authority from him; or it may be delivered to any stranger, for, and on behalf, and to the use of him to whom it is made, without authority. But if it be delivered to a stranger, without any such declaration (unless it be in case of a delivery as an escrow), it seems it will not be a sufficient delivery. Shep. Touch. 57.

A deed cannot be delivered twice: for if the first delivery has any effect, the second will be void. Thus if an infant, or a person under duress of imprisonment, delivers a deed (in which case the deed is not void, but only voidable), and after, the infant being of full age, or the person who was under duress being at large, do deliver the deed again, such second delivery is void. But where a feme covert seals and delivers a deed, and after her husband's death delivers it again, the second delivery is good, because the first was void. Sheph. Touch. 60. Goodright v. Straphan, 1 Cowp. 201. Ant. p. 219. n. (F). In the case of the king's letters patent, or of grants under the seal of the dutchy of Lancaster, the seal is matter of record, and therefore the deed needs no delivery. And the deeds of a corporation to which their seal is affixed, need not in general be delivered. Willis v. Jermin, Cro. Eliz. 167. 4 Cru. Dig. 31.—[Ed.]

(N) By the common law, it is not absolutely necessary that any consideration should be expressed for, although a verbal contract is not binding without a consideration, because words often pass from men lightly and inconsiderately, which may justify a suspicion of imprudence, and even of fraud; yet where an agreement is made by deed, which must necessarily be attended with more thought and deliberation, all suspicion of surprise or deceit is excluded: and therefore every deed in itself imports a consideration, though it be only the will of the maker, and therefore shall never be said to be nudum pactum. Plowd. 308. 3 Bur. 1637.

There are two kinds of considerations, civil and moral. The first, which is usually called a valuable consideration, is money, or any other thing that bears a known value. Marriage, also, forms a valuable consideration. The second, which is called a good consideration, arises from an implied obligation, such as that which subsists between a parent and child; for children are considered, in equity, as creditors claiming a debt, founded upon the moral obligation of the parent to provide for his child. The love and affection which a man is naturally supposed to bear to his brothers and sisters, nephews and nieces, and heirs at law, and the desire of preferring his name and family, are also held to be good considerations. In like manner the payment of a man's debts is deemed a good consideration; since every man is under a moral obligation of satisfying his lawful creditors. Fonbl. Eq. b. 1. c. 5. s. 1.—[Ed.]

Deeds and

fraud;
(Post, 76 a.)

(236)*
(m) 27 Eliz.
cap.4. 13Eliz.

cap. 5. 3 Co 80.82.83.

Twine's case.

fraudulent and convinous conveyances, estates, grants, charges, and may be avoid limitations of uses, of or out of the same, (m) by a statute made ed in case of since Littteton wrote (20), whereof you may plainly and plentifully read in my Reports, to which I will add this case. J. C. had a lease of certain lands for sixty years, if he lived so long, and forged a lease for ninety years absolutety, and he by indenture reciting the forged lease, for valuable consideration, bargained and sold the forged 5 Co. 60. lease and all his interest in the land to R. G. It seemed to me that case. 6 Co.72. R. G. was no purchaser within the statute of 27 Elizabeth, for he contracted not for the true and lawful interest, for that was not 74. Pasch. 12 known to him, for then perhaps he would not have dealt for it, and Jones, Pl. and the visible and known term was forged; and although by general words the true *interest passed, notwithstanding he gave no valuable def. in ejec- consideration nor contracted for it. And of this opinion were all in evidence the judges in Serjeants Inn, in Fleet Street (o).

Gooche's

Burrel's

case. 11 Со.

Ja. inter

Sir Rich.

Groobham,

tione firma

al Jurie.

(237)*

(20) For cases of fraudulent gifts before the 13 Eliz. c. 5. see Dy. 294 b. 295 a.[Hargr. n. 9. 3 b.]

(0) The deeds and conveyances affected by the statutes of 13 Eliz. c. 5, and 27 Eliz. c. 4. (made perpetual by 30 Eliz. c. 18. s. 3.) are, 1st. Deeds or conveyances, made with an express intention to defraud creditors or subsequent purchasers. 2d. Deeds or conveyances made without any consideration, usually called voluntary conveyances. 3d. Deeds or conveyances made for good, but not for valuable considerations, such as deeds made to provide for a man's wife, children, or relations. 4 Cru. Dig. 373.

1st. With respect to deeds made with intent to defraud creditors and purchasers, they are clearly void, whatever may be the consideration, and though the conveyance be made to the king. Magdalen College case, 11 Co. 66. And in Twine's case, (3 Co. 80), a leading case on this subject, the badges of fraud were, 1st. The conveyance was of all the grantors' property, without exception of his apparel, or any thing of necessity. 2d. The donor continued in possession. Et vid. Reid v. Blades, 5 Taunt. 212. Dewey v. Bayntun (Bart.), 6 East, 257. 3d. The conveyance was made in secret. 4th. There was a trust between the parties. Et vid. 11 Co. 74 a. Turback v. Marbury, 2 Vern. 510. Though in conveyances of land, it seems, that, where the consideration is future, the donor's continuation in possession is not fraudulent; unless it be expressly proved that fraud was intended. Stone v. Grubbam, 1 Rol. Rep. 3. And where a debtor being sued by a creditor, pending the suit and before execution, being insolvent, executed an assignment of all his effects to trustees for the benefit of all his creditors, under which possession was immediately taken, it was held that the assignment was not fraudulent within the 13 Eliz., although made to the intent to delay the plaintiff of his execution. Pickstock v. Lyster, 3 Maul. & S. 371. Et vid. Estwick v. Cailland, 5 T. R. 420. Anst. 381. Nunn v. Wilsmore, 8 T. R. 521. Holbird v. Anderson, 5 T. R. 235. Meux, q. t. Howell, 4 East, 1. With respect to the circumstances from which an intent to defraud a subsequent purchaser may be collected, the conveyance to such purchaser has been held sufficient to show, that there was a fraudulent intent at the time when the first conveyance was made; and will therefore invalidate such first conveyance, as to the subsequent purchaser. And in order to bring a case within the statute 27 Eliz., it is not necessary that the person who sells the land, should make the former cooveyance. Burrell's case, 6 Co. 72. And though the subsequent purchaser should have notice of the preceding conveyance, yet he will be allowed to invalidate it. 5 Co. 60 b. Cowp. 711. Doe d. Otley v. Manning, 9 East, 59. Hill v. The Bishop of Exeter, 2 Taunt. 69. Et vid. Pulvertoft v. Pulvertoft, 18 Ves. 84. Metcalf v. Pulv rtoft, 1 Ves. & B. 183, 184. Buckle v. Mitchell, 18 Ves. 100.

2d. With respect to voluntary conveyances, there is a difference, says Lord Hardwicke, 2 Ves. 101, between the stat. 13 Eliz. in favour of creditors, and that of the 27 Eliz. in favour of purchasers. For, on the 27 Eliz., every conveyance made, where there is a subsequent conveyance for a valuable consideration, though no fraud in that voluntary conveyance, nor the person making it at all indebted, yet the determinations are, that such mere voluntary conveyance is void at law, by the subsequent purchase for a valuable consideration. But the difference between that and the 13 Eliz. is this: if there is a voluntary

*(n) In ancient time, when a man made a fraudulent feoffment, it was said, quod possuit terram illam in brigam; *where brigam

(238)* (239)* (2) Hil. 18. E.

conveyance of real estate, or chattel interest, by one not indebted at the time, though he afterwards becomes indebted, if that voluntary conveyance was for a child, and no particular evidence or badge of fraud to deceive or defraud subsequeut creditors, that will be good; but if any mark of fraud, collusion, or intent to deceive subsequent creditors appears, that will make it void; otherwise not, but it will stand, though he afterwards becomes indebted. But I know of no case, on the 13 Eliz. says his lordship, where a man, indebted at the time, makes a voluntary conveyance to a child without consideration, and dies indebted, but that it shall be considered as part of his estate for the benefit of his creditors.

3d. With respect to conveyances made for good considerations, that is, in favour of a wife, children, or near relations, they are also within these statutes, and are considered as fraudulent against creditors (Apharry v. Bodingham, Cro. Eliz. 350.) and subsequent purchasers. Woodie's case, cited in Cro. Jac. 158. Goodright v. Moses, 2 Bl. Rep. 1019. Chapman v. Emery, Cowp. 279. And a voluntary settlement, though free from actual 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 favour 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 revocation 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. ed. 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 Atk. 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 favour 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 v. March, For. 63. Wheeler v. Caryl, Ambl. 121; or a new additional sum of money; 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. Exparte 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, VOL. II. 27

in Thesaur.

or usury.

3. Coram rege doth signify wrangle, contention, or intricacy, for fraud is the mother of them all. (0) And on the other *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

(0) 37 H. 8. cap. 6. 13

Eliz. cap. 8. (240)*

5 Co. 69.

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 separation, were held to be a valuable consideration, and that the settlement was good against a prior creditor. Stephens v. Olive, 2 Bro. C. C. 9. King v. Brewer, Ibid. 93 n. Sed vid. Lord St. John v. Lady St. John, 11 Ves. 526. A settlement, before marriage, even of moveable effects by 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. R. 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 knowing him to be indebted at the time will not invalidate the transaction. Wheeler v. Caryl, Ambl. 121. Nairn v. Prowse, 6 Ves. 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, Exparte Meaghan, 1 Sch. & Lef. 179, and Exparte Murphy, Ibid. 44; overruling 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. Newstead v. Searles, 1 Atk. 265. King v. Cotton, 2 P. Wms. 674. A settlement after marriage, in favour 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. Wins. 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, Exparte Hall, 1 Ves. & B. 112.), is fraudulent against such persons as were creditors at the time the settlement was made, Middlecombe v. Marlowe, 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. 387; or if the debt be secured by mortgage, in which case it will not effect the settlement, Stephens v. Olive, 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. 156 n.; 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. Lush 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 favour of purchasers, only affects real estate; and the 13 Eliz., which affects personal estate, is in favour 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 all 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. Whalley, 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. Sagittory v. Hyde, 2 Vern. 44. Prodgers v. Langham, 1 Sid. 133. Doe v. Martyr, 1 N. R. 332. Par 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

case. Idem.

ton's case.

manner and form as by those acis is provided; which statutes are Button's well expounded in my books of Reports, which may be read there. lib. 7. Clai To them that lend money my caveat is, that neither directly nor (Lutw. 271.) indirectly, by art, or cunning invention, they take above ten (21) in the hundred; for they that seek by sleight to creep out of these statutes, will deceive themselves, and repent in the end.

*4 a.

6 a.

The formal vid. sect. 40 & 370, 371.

parts a deed.

many things

factis.

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, compre- de cartis et hending the sealing; 7. the date of the deed, containing the day, the Fleta, lib. 3. the month, the year, and stile of the king, or of the lord; (p) lastly, the clause of hiis testibus; and yet all those parts Bract. lib. 5. were contained in very few and significant words (q), hæc fuit candida illius ætaits fides et simplicitas, quæ pauculis lineis omnia fidei firmamento posuerunt.

year

of our cap.

The office of the premises of the deed is two-fold; 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 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.

(r) If in the premises lands be letten, or a rent granted, the general intendment is, that an estate for life passeth; but if the habendum limit the same for years, or at will, the habendum

(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

14. Britton, 100, 101.

fol. 396 a. 399.

H.6.33. 36. Wrotesleye's

Pl. Com.

case, fol. 96. (p) Vid. Throgmor

ton's case,

Pl. Com.

(q) 6 Co. 43.

in Sir Anthomay's case. Vid. sect. 278.

ny Mild

(2 Rol.Ab. 23.) The pre

mises.

(241)* Habendum.

more than 6 per cent. It is impossible in the compass of a note to cite the numerous 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. 15. 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 Diplomatica.-[Hargr. n. 5. 6. a.]

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. Ed vid. 9 Ves. 193. Brown v. Carter, 5 Ves. 862. [Ed.]

(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.]