THE RIGHTS OF CREDITORS UNDER THE STAT- CHAPTER I. WHAT KINDS OF PROPERTY ARE WITHIN THE THE preamble of the statute 13 Eliz. c. 5, declares it 13 Eliz. c. 5. to be made "for the avoiding and abolishing of feigned, covinous, and fraudulent feoffments, gifts," &c. "as well of lands and tenements, as of goods and chattels" (a), made to delay, hinder, or defraud creditors and others. The kinds of property to which the statute extends are described in it as "lands, tenements, hereditaments, goods and chattels or any of them, or any lease, rent, common or other profits or charge out of the same lands, tenements, hereditaments, goods and chattels, or any of them" (b). Under this description are included all kinds of prop- Includes all erty real and personal, legal and equitable (c), vested, property liareversionary (d), or contingent (e), which are subject ble to claims (a) Bills of exchange (Hornblower v. Proud, 2 B. & Ald. 327 ; Edwards v. Cooper, 11 Q. B. 33), shares in joint stock and other companies (Ex parte Burbridge, 1 Deac. Bkcy. 131; (Ex parte Vallence, 2 Deac. 354) and stock (Brown v. Bellaris, 5 Mad. 53) have been held to be goods and chattels within other statutes; see also Humble v. Mitchell, 11 A. & E. 205. Bonds are goods and chattels ; Sims v. Thomas, 12 A. & E. 536. Choses in action were goods and chattels within 21 Jac. 1, c. 19 Ryall v. Rolle, 1 Atk. 165, 182, 183, S. C. 1 Ves. 348), though not always comprised by the words; Hertford v. Lowther, 7 Beav. 1; see 46 & 47 Vict. c. 52, s. 168. (b) 13 Eliz. c. 5, s. 2: Appendix No. I. (c) Ashfield v. Ashfield, 2 Vern. 287. (d) Ede v. Knowles, 2 Y. &. C. Ch. C. 172; Sexton v. Canney, 8 L. R. Ir. 216. (e) French v. French, 6 D. M. & G. 95. of creditors. Copyholds to the payment of debts, or liable to be taken in execu[*18] tion at the time of the fraudulent *conveyance (ƒ); but, in general, not any not so liable (g). The reason of this is, that a settlement of property which creditors could not have got at puts no property out of their reach, and cannot be fraudulent against them (h); and consequently, when by a change in the law, certain property is made liable to creditors which before was not so, that property then becomes also liable to the provisions of the statute of Elizabeth (i). It was formerly held that copyholds were not within formerly not, the statute. In Mathews v. Feaver (k) Lord Kenyon but now are. (then Sir Lloyd Kenyon) said: "I am not satisfied as to the nature or the value of the copyhold premises, which, generally speaking, are not subject to debts, and therefore the assignment of them can never be fraudulent against creditors." Money, By 1 & 2 Vict. c. 110, s. 11 (the Judgment Act, which came into operation on October 1, 1838), copyholds where made liable to be taken in execution by writ of elegit, and therefore, because capable of being taken in execution, came within the statute of Elizabeth (1). So likewise money (m), bonds, and choses in action bonds, choses of all kinds were not formerly within the statute, because in action, and stock former- they could not be reached by an execution (n). ly no. Thus, a settlement or transfer of stock, which was not liable to debts or execution in the absence of any (f) Sims v. Thomas, 12 A. &. E. 536; Turnley v. Hooper, 2 Jur. (N. S.) 1081. (g) Sims v. Thomas, 12 A. & E. 536; Turnley v. Hooper, 2 Jur. N.S) 1081; and Ridler v. Punter, 1 Cro. Eliz. 291; but see post, p. 23. (h) See Mathews v. Feaver, 1 Cox, 278; Turnley v. Hooper, 2 Jur. (N.S.) 1081; 1 Story, Eq. Jur. 12th ed. s. 367. (i) See Sims v. Thomas, 12 A. &. E. 536, 554; and see Bump. Fr. Conv. (Amer.), 2nd ed. 236. (k) 1 Cox, 278; and see Hassells v. Simpson, 1 Doug. 89-93. (1) See Scriven, 5th ed. pp. 39-40. Twyne's Case, 1 Sm. L. C. 8th ed. pp. 38, 39. (m) Fletcher v. Sedley, 2 Vern. 490; Vin. Abr. tit. Fraud. (F), 22, vol. 13, p. 522; Ex parte Shortland, 7 Ves. 88; Kensington v. Chantler, 2 Mau. &. S. 36; Ex parte Skerratt, 2 Rose, 384. But see Partridge v. Gopp, Amb. 596; et post, p. 22. (n) Norcutt v. Dodd, Cr. & Ph. 100; Edgell v. Haywood, 3 Atk. 352, 356; Duffin v. Furness, Sel. Ca. Ch. 77; Ashe v. Low, Hayes & J. 287; Sims v. Thomas, 12 A. & E. 536; Adames v. Hallett, L. R. 6 Eq. 468. lien (o), could not be set aside as fraudulent [ *19] against creditors (p); and although, under the peculiar circumstances of the case in Rider v. Kidder, (q) Lord Eldron, the settlor being dead, allowed the transfer to be made (r), he seems to have been of opinion that stock was not within the statute of Elizabeth, and assented to Lord Thurlow's opinion to that effect in Dundas v. Dutens (s). In Taylor v. Jones (t), however, the point does not seem to have been raised and a settlement of a sum of stock was set aside at the suit of creditors. settlements ruptcy or death of Even before this Act, however, though a settlement Before Judgof stock could not be impeached during the debtor's life, ment Act, except under a commission of bankruptcy (u), it could be of stock or got at after his death (v), in the one case, the Court of money void Bankruptcy, and in the other the Court of Chancery, on banktaking the whole estate into possession for the purpose of administration. After the debtor's decease, also, his creditors could sue the persons claiming under the fraudulent deed as executors de son tort, the property settled being assets in their hands (w); from which it may be inferred that a settlement of stock, &c., made before 1 & 2 Vict. c. 110, might be void against creditors if the debtor had become a bankrupt or died. And in the same manner, a settlement of money could be set aside at the settlor's death (x), and though, in his life, it could not be reached by creditors before this (0) Cockrane v. Chambers, note to Horn v. Horn, Amb. 79; Nantes v. Corrork, 9 Ves. 189; Bank of England v. Lunn, 15 Ves. 569-577; McCarthy v. Goold, 1 Ball & B. 389. But see Guy v. Pearkes, 18 Ves. 197, and Horn v. Horn, Amb. 79. (p) Dundas v. Dutens, 1 Ves. Jun. 196-198. (g) 10 Ves. 360. (r) 10 Ves. 370 n. (50), 2nd ed. See also Rider v. Kidder, 13 Ves. 123; Pringle v. Hodgson, 3 Ves. 617. (8) 1 Ves. Jun. 198; 2 Cox, 235, 240. (t) 2 Atk. 600. As to sequestration of choses in action, see Simmonds v. Kinnaird, 4 Ves. 735; Wilson v. Metcalfe, 1 Beav. 263. (u) Pringle v. Hodgson, 3 Ves. 617; Rider v. Kidder, 10 Ves. 360, 368. (v) McCarthy v. Goold, 1 Ball & B. 387, 390; Rider v. Kidder, 10 Ves. 360, 368-9. (w) See 2 Roll. Rep. 173; 2 Ben. & Dal. 94, pl. 16; Vin. Abr. tit. Fraud (C.), pl. 5, 7, 8, 11; Kitchin v. Dixson, Gouldsb. 116, pl. 12; Howes v. Leader, Cro. Jac. 271; Edwards v. Harben, 2 T. R. 587; Stamford's Case, 2 Leon. 223; Townshend v. Windham, 2 Ves. 11; Shears v. Rogers, 3 B. & Ad. 362; Shee v. French, 3 Drew 716. (x) Whittington v. Jennings, 6 Sim. 493. As to choses in action, see per Lord Cottenham in Norcutt v. Dodd, Cr. & Ph. 100, 102. settlor. Policies of assurance formerly not. Purchase in * Act by any process at law, it seems questionable whether, in some cases, equity could not have reached it. In [20] Partridge v. Gopp (y), children were ordered to refund £500 each paid to them by their father, an insolvent executor, for their maintenance. So it was laid down by Lord Cottenham in Norcutt v. · Dodd, (2) that a chose in action, after the death of the assignor, because it was assets in the hands of the executor, could be reached by creditors. Lord Manners doubted, in Grogan v. Cooke (a), whether policies of life insurance were within the statute; but it is now settled that they are securities for money within the meaning of the 1 & 2 Vict, c. 110 (b), and it follows that they are subject to the claims of creditors under the statute 13 Eliz. c. 5, and it has in fact several times been so decided (c). It was at one time held (d) that, as money could not name of child then be taken in execution, a purchase in the name of a or third per- child or third person was not within the statute. son formerly not; If the conveyance was declared void, the title to the property would remain in the grantor, and therefore the creditors could not seize it; and it was argued that the debtor might have given the money to the child or third person, who might himself have made the purchase; and that unless, as Lord St. Leonards expresses it (e), the purchase itself was substantially affected with fraud, the mere fact that the money of the debtor was laid out in the purchase of land for the benefit of a child would not be a reason for bringing the purchase within the statute. Thus, also, a purchase by a husband in the joint names (y) Amb. 596. See also East India Co. v. Clavel, Gilb. Eq. Rep. 37; Prec. Ch. 377. (2) Cr. &. Ph. 100, 102. (a) 2 Ball & B. 233. (b) Section 12. Law v. London, &c., Policy Company, 1 K. & J. 223; Robson v. McCreight, 25 Beav. 272; Stokoe v. Cowan, 29 Beav. 637. (c) Stokoe v. Cowan, 29 Beav. 637; Jenkyn v. Vaughan, 3 Drew. 419; Skarf v. Soulby, 1 Mac. & G. 364; Penhall v. Elwin, 1 Sm. & Giff. 267; Freeman v. Pope, L. R. 9 Eq. 206, S. C. L. R. 5 Ch. 538; Taylor v. Coenen, 1 Ch. D. 636. (d) Fletcher v. Sedley, 2 Vern. 490; Glaister v. Hewer, 8 Ves. 199; Duffin v. Furness, Sel. Ca. Ch. 77; Proctor v. Warren, Sel. Ca. Ch. 78; Barrack v. McCulloch, 3 K. & J., per V. C. Wood, 117–118; and see Dart, V. & P. 5th ed. 938. (e) Sug. V. &. P. 14th ed. p. 706. of himself and his wife, though, perhaps, open to more or joint suspicion (f), * has been considered not within [21] purchase in the statute (g), though the question was never fully settled (h). But now by the Married Women's Property Act, 1882 (i), s. 10 (extending the Act of 1870, s. 6), it is provided that "nothing in this Act contained shall give validity as against creditors of the husband to any gift, by a husband, to his wife, of any property which, after such gift, shall continue to be in the order and disposition or reputed ownership of the husband or to any deposit or other investment of moneys of the husband made by or in the name of his wife in fraud of his creditors; but any moneys so deposited or invested may be followed as if this Act had not passed." This section, which is confined to "moneys," seems to apply at whatever time the fraud is committed. It will be simply a question. of fraud or no fraud, as against the husband's creditors, in considering the validity of any deposit or investment made by the husband, or wife with her husband's moneys, whether made in the joint names of husband and wife or of husband, wife, and others. If in fraud of his creditors, it cannot be supported as a gift or an advancement to the wife (k). names of self and wife. But after a purchase by a man in the names of trus- Purchase tees in trust for such persons, &c., as he should appoint, taken to trusan appointment by him in favour of wife and children tees to hold was, of course, held voluntary, and within the statute; should apfor he had in him an equitable estate (1). as settlor point. Since January 1, 1838, the date of the operation of Purchase in 1 & 2 Vict. c. 110, money can be taken in execution, name of child and it therefore follows that a purchase in the name of wife, or third a child, or wife, or third person on or after that date within would be within the statute (m). The same seems now to be the settled law in America, where the point has been much discussed (n). (f) Christ's Hospital v. Budgin, 2 Vern. 683. (g) Kingdon v. Bridges, 2 Vern. 67. (h) See Lord Hardwicke's observations, Underwood v. Hitchcox, 1 Ves. 280. (i) 45 & 46 Vict. c. 75, s. 10. (k) Re Eykyn, 6 Ch. D. 115. (1) Ashfield v. Ashfield, 2 Vern. 287; see Barton v. Vanheythuysen, 11 Hare, 126, 130; post, p. 200. (m) Barrack v. McCulloch, 3 K. & J. 110; but see Drew v. Martin, 2 H. & M. 130. (n) Bump. Fr. Conv. (Amer.), 2nd ed. 237, 238. person now statute. |