CHAP. III. OF A GIFT. Touchst. 227. A GIFT is, properly, a voluntary conveyance; 2 Bl. Com. 316. that is, a conveyance not founded on the consideration of money or blood. The operative word in it is "given." It is, at this day, a suspicious species of conveyance, as being without what the law denominates either 22 Vin. 15. Conveyance. a good or valuable consideration. It is void as See 13 Vin. to those who were creditors of the donor at the 519. Fraud. time of its being made, though valid as to subse- Voluntary quent creditors. If it be of an estate of freehold in possession, it requires livery to perfect it; for, as it has no consideration either of blood or money, no use arises on it; and, consequently, livery is still necessary. * A conveyance in consideration of 5s. or 10s. is deemed a voluntary conveyance, for want of adequate consideration; and in such a conveyance a use may be raised. Without a deed of conveyance no estate in freehold property can pass; receipt of rent or acquisition of the possession is not enough. To the transfer of personal [chattels], however, a deed of conveyance is not necessary, as whether there be or be not a 2 Bl. Com.310. Wright's Ten. 150. Originally, feoffinents were considered as gifts. The term Gift now, however, is generally ap written assignment, there must be actual delivery of the A voluntary conveyance, or a conveyance founded on a nominal consideration, is void, as against a subsequent purchaser of the estate from the settlor for valuable consideration, whether such purchaser have notice of the previous voluntary conveyance or not. Cowp. 278. 2 Lev. 105. 9 East, 59. 2 Taunt. 69.77. 18 Ves. 100. Currie v. Nind, 1 Myl. & Cr. 17. But a person who has made a voluntary settlement cannot, it should seem, maintain a bill in equity for specific performance of an agreement which is to defeat that settlement; the party himself has no right to disturb it; as against himself it is valid and binding; when he seeks to get rid of it, the court will not impede him, but it will not assist him. Smith v. Garland, 2 Meriv. 123. A voluntary conveyance of real estate, or a chattel interest, in favour of a child, by one not indebted at the time, though he afterwards becomes indebted, will be good against future creditors, though not against future purchasers, (Russel v. Hammond, 1 Atk. 15, 16. Holloway v. Millard, 1 Madd. Rep. 414. Battersbee v. Farrington, 1 Swanst. 106.)-provided there be no particular evidence or badge of fraud; a power of revocation for instance, Peacock v. Monk, 1 Ves. 132.)—or retention of possession (Bates v. Graves, 2 Ves. jun. 293.); and see Stileman v. Ashdown, 2 Atk. 481., and Lord Banbury's case, 2 Freem. 8. As to marriage settlements: if a settlement be made after marriage, it will, as a general rule, be fraudulent and void against all persons who are creditors of the husband at the time of the settlement, (Middlecome v. Marlow, 2 Atk. White v. Sansom, 3 Ibid, 412. Watts v. Thomas, 2 P. Wms. 364.; and Kidney v. Coussmaker, 12 Ves. 520. propriated to the creation of an estate tail: hence the person creating an estate tail is denominated 155.)-unless such settlement contain a provision for debts (George v. Milbanke, 9 Ves. 190.); or is made in pursuance of articles before marriage (Beaumont v. Thorpe, 1 Ves. 27.); or unless it be against a single debt (Lush v. Wilkinson, 5 Ves. 387.); or the debt be secured by mortgage, in which case it would not affect the settlement (Stephens v. Olive, 2 Bro. C. C. 90.); for to do that it seems the party must have been insolvent at the time. (Lush v. Wilkinson, ubi supra; and see East India Company v. Clavell, Gilb. Eq. Ca. 37.) [In the recent case of Shears v. Rogers, 3 Bar. & Adol. 362, a person being indebted by bond in 1027. assigned a lease, (value 1067.) to a trustee for the benefit of himself for life, and after his death for one of his daughters in law; and shortly afterwards died. By this assignment the residue of his property became insufficient to discharge the bond debt. The Court of King's Bench held, that the assignment was within the statute 13 Eliz. c. 5., and void against creditors. The court gave a strong intimation of opinion, that to make a conveyance fraudulent within the above statute, the party, at the time of making it, must be indebted to the extent of insolvency, and that the party may render himself insolvent by the execution of the conveyance. See also Wittington v. Jennings, 6 Sim. 493.] But it is observable, that if (with the exceptions alluded to) there are creditors at the time of the settlement, and the settlement is on that account declared fraudulent, the property so settled will become part of the husband's assets, and all subsequent creditors will be let in to partake of it. (Taylor v. Jones, 2 Atk. 600.) By the 73rd sect. of the late bankrupt act, (6 Geo. 4. c. 16.), voluntary conveyances by any bankrupt, being insolvent at the time, are declared absolutely void. A voluntary deed never parted with, and executed for a purpose that has never been completed, is considered in the donor, and the person taking it the donee; hence the issue of a tenant in tail is said to take equity as an imperfect instrument (Cecil v. Butcher, 2 Jac. & Walk. 573.); and if a power of revocation be introduced in a deed which purports to be a voluntary settlement, it will then, it is conceived, become a testamentary writing, if the settlor, taking an estate for life under the settlement, retains possession of the deed (3 Price, 368, 379.); and, therefore, if the estate be directed to be sold after the testator's death, and the money divided between certain persons, they will be considered as legatees, and must pay the legacy duty. In Attorney General v. Jones, 3 Price, 368., the settlor made a voluntary assignment of leasehold and personal property to trustees, for the use of himself for life, and of several persons therein named at his death, with a power of revocation reserved to himself: he never having parted with the deed, or with any part of the property during his life, and confirming it in most respects by his will; the deed and will were considered to be in the nature of testamentary instruments, and the property passing under them was held to pass as legacies and to be subject to the legacy duty. 3 Price, 368. [See also Gaskell v. Gaskell, 2 Yo. & Jer. 502.] A conveyance for payment of debts generally, to which no creditor is a party, nor any particular debt expressed in the deed is good as against the grantor and his heirs; but void as against a purchaser. Leech v. Leech, 1 Cas. in Ch. 249. But to enable a purchaser to set aside a deed made for payment of debts, he must, it is conceived, be a purchaser for valuable consideration, and have no notice of the deed of trust. See Langton v. Tracey, 2 Ch. Rep. 16. S. C. Nels. 126. A conveyance to pay debts may be, 1st, a conveyance of all the debtor's property in trust to pay all his debts; 2nd, a conveyance of part of his property in trust for his creditors generally; 3rd, a conveyance of all or part of his property in trust for a few or a portion only of his creditors; 212. per formam doni, and the writ formerly given F. N. B. 211. him to recover his estate was called the formedon.* and, 4th, a conveyance of part of his property in trust to pay a particular set of scheduled creditors. The whole of these conveyances are voluntary and void, excepting so far as all the creditors combine to make them good. Lewis v. Jones, 4 Barn. & Cress. 506. Holmes v. Love, 3 Barn. & Cress. 242. Spottiswoode v. Stockdale, Coop. 105. Pickstock v. Lyster, 3 Maul. & Selw. 371. [A conveyance by a debtor to trustees for payment of scheduled creditors who do not execute the deed, or conform to its forms, cannot be enforced by the creditors: Garrard v. Lord Lauderdale, 3 Sim. 1. 2 Russ. & Myl. 451.; and see Walwyn v. Coutts, 3 Sim. 14.; S. C. 3 Mer. 707., and is recoverable by the debtor, Acton v. Woodgate, 2 Myl. & K. 492. Ravenshaw v. Hollier, 7 Sim. 3.] [* Now abolished by stat. 3 & 4 Will. 4. c. 27. s. 36.] |