27 Eliz. c. 4, makes void to deceive the same lands. WHAT PERSONS ARE ENTITLED TO RELIEF AS PUR- THE statute 27 Eliz. c. 4, s. 2, declares "That all and every conveyance, grant, charge, &c., had or made for conveyances the intent and of purpose to defraud and deceive such subsequent person or persons, bodies politic or corporate, as have purchasers of purchased or shall afterwards purchase, in fee simple, fee tail for life, lives, or years, the same lands, tenements, and hereditaments, or any part or parcel thereof so formerly conveyed, or to defraud and deceive such as have or shall purchase any rent, profit, or commodity in or out of the same or any part thereof, shall be deemed and taken only as against that person, &c., his and their heirs, &c., and against all and every other person and persons lawfully having or claiming by, from, or under them or any of them which have purchased, or shall hereafter so purchase for money or other good consideration, the same lands, &c., to be utterly void, frustrate, and of none effect, any pretence, colour, feigned consideration, or expressing of any use or uses to the contrary notwithstanding." statue. The word "purchase," as used in the statute, of course refers to cases of selling and purchasing in the ordinary and vulgar acceptation of the word, and not in the technical sense of any person who obtains land otherwise than by descent (v). Who are enThe statute refers only to purchasers for money or titled to the other good consideration; the question of indebtedness benefit of the or not is immaterial (w); in order to acquire a right to the protection of the statute the purchaser must be qualified in a certain way. Although, if there is any valuable consideration for a settlement, the quantum [* 218 ] of such a consideration is of no consequence *under the statute (x) so long as there is anything in the How to be qualified. (v) See Ex parte Hillman, 10 Ch. D. 625. (w) Lord Townsend v. Windham, 2 Ves. 10, ante, pp. 37 et seq. (x) Price v. Jenkins, 5 Ch. D. 621. shape of consideration which can be called value (y); still it does not follow because a man has paid a sum of money, however small, for an estate, or for the chance of being able to get it from the prior volunteer, that he is therefore a purchaser. In Upton v. Basset (z) "it was resolved that no pur- Upton v. chaser should avoid a precedent conveyance made by Bassett. fraud and covin but he who is a purchaser for money or other valuable consideration." Consideration of He must be a blood, natural affection, or the like, will not do (a); purchaser for and it was also agreed (b) that the statute would not valuable conhelp a purchaser unless he came to the land, not only on valuable consideration, but also "lawfully and withLawfully and out fraud or deceit." The principle thus laid down has bonâ fide. been ever since adhered to, and it seems that in order to entitle a man to the privileges of "a purchaser" under this statute the price he paid must not be so inadequate as to induce the belief that the sale was not bonâ fide, but was a mere contrivance to get rid of the first settlement and make another, which was, in truth, also Colourable voluntary; for if it is merely colourable it will not purchase no stand (c). good. money must If it is shewn that the consideration stated to have Purchasebeen paid was not really and bonâ fide paid, or was af. money or mortgageterwards returned, such a sale will not be allowed to override a prior conveyance, although voluntary (d). be really But the vendor's giving back part of the purchase- paid. money to the purchaser's family does not invalidate the sale, for that might have been altered (e). So where the estate is conveyed as security for money to be then afterwards advanced, it must be proved that money has actually been advanced on the mortgage (f); and evi (y) Bayspoole v. Collins, L. R. 6 Ch. 232; In re Foster and Lister, 6 Ch. D. 89. (z) 3 Rep. 83 a; ante, p. 188. (a) 3 Rep. 83 a; Dame Burg's Case, F. Moo. 602, 603; Lessee of Bonny v. Griffith, Hayes, 115. (b) In Nedham v. Beaumont, cited 3 Rep. 83 b. (c) Doe v. Routledge, 2 Cowp. 705, 712; et ante, p. 189; Bullock v. Sadlier, Amb. 764; Doe v. James, 16 East, 212; Hill v. Bishop of Exeter, 2 Taunt. 69; Doe v. Rowe, 4 Bing. N. C. 737; Persse v. Persse, 7 Cl. & F. 321; Metcalfe v. Pulvertoft, 1 Ves. & B. 180, 184; Doe v. Manning, 9 East, 59; Doe v. Martyr, 1 B. & P. N. R. 332; Dolphin v. Aylward, L. R. 4 H. L. 486, 499; Rosher v. Wil liams, L. R. 20 Eq. 218. (d) Humphreys v. Pensam, 1 My. & Cr. 580 ; Roberts v. Williams, 4 Hare, 130. (e) Per Lord Ellenborough, in Doe v. James, 16 East, 214. (f) Doe v. Webber, 1 Ad. & E. 733, 740. Mortgagee. [219] dence of this cannot be given by the mortgagor after he has executed the voluntary settlement, for he cannot derogate from the estate he has conveyed (g). So if the valuable consideration be not expressed in the deed, evidence is admissible to shew that there was consideration, though not appearing on the face of the deed (h); but such evidence must be to the utmost extent satisfactory and conclusive (i). On the other hand, a settlement, though voluntary on the face of it and and at first void against a purchaser for value, may yet become valid by force of subsequent events (k). A purchaser in the sense in which the word is used in this statute is one who gives money or other valuable consideration in order to have the land (7). There is, of course, no doubt that a mortgagee is a purchaser pro tanto within this statute (m), but a mortgage to secure moneys to be then afterwards advanced must be supported by proof of an actual advance to the mortgagor, whose subsequent admission will not Purchaser of suffice (n). As a purchaser has in equity the same equitable rights under this statute as at law (o), a purchaser of estate. an equitable estate (p), or a person who has, by a contract to purchase, acquired an equitable estate (g), or an equitable mortgagee, by deposit of title deeds (r), is a purchaser. An equitable mortgagee may in equity establish bis title by means of parol evidence, or written documents coupled with parol evidence (s); but he (g) Doe v. Webber, 1 Ad. & E. 733; and see Lalor v. Lalor, 4 L. R. Ir. 351, S. C. 678. Equitable mortgagee. (h) Townend v. Toker, L. R. 1 Ch. 459. (i) Levy v. Creighton, 22 W. R. 605. (k) Clarke v. Willott, L. R. 7 Ex. 313; Judd v. Green, 45 L. J. (N.S.) Ch. 108; post, pp. 314 et seq. (1) Bearan v. The Earl of Oxford, 6 De G. M. & G. at p. 517. (m) Rand v. Cartwright, 1 Ch. Ca. 59; Cormick v.Trapaud, 6 Dow, 60; Senhouse v. Earle, Amb. 289; Doe v. Webber, 1 Ad. & E. 733, Dolphin v. Aylward, L. R. 4 H. L. 486, 499, 504; Cracknall v. Janson, 11 Ch. D. 1. (n) Doe v. Webber, 1 Ad. & E. 733; Myers v. Duke of Leinster, 7 Ir. Eq. 159. (0) Smith v. Garland, 2 Mer. 123, 127. (p) Buckle v. Mitchell, 18 Ves. 100; ante, p. 193. (q) Barton v. Vanheythuysen, 11 Hare, 126, 130. But see Hol ford v. Holford, 1 Ch. Ca. 217. (r) Lister v. Turner, 5 Hare, 281; Briggs v. Jones, L. R. 10 Eq. 92. (8) Ede v. Knowles, 2 Y. & C. Ch. 172. Purchase cannot, of course, be regarded as a purchaser in an ac- Not at law. tion *at law, though trover can be maintained [ * 220] Trover. for the deeds (t); and, of course, a person who pur- with money chases in trust for, and with the money of, another per- of and in son is a purchaser (u). trust for other person. In Shaw v. Standish (v) the Court inclined to think Mining that an agreement by certain persons with the owner of agreement. land to enter into partnership with him, and to dig and work mines, and to bear profit and loss in certain proportions, constituted them purchasers of their interest in the land under the agreement as against a prior voluntary settlement; but eventually a decree was made by consent establishing the articles of co-partnership. It is not necessary under the statute that any money Release of should be paid to make a man a purchaser; the bonâ adverse fide release of an adverse claim to a litigated estate claims a without any money payment is a purchase. "There purchase. can be no doubt," said Sir J. Mansfield in Hill v. Bishop of Exeter (w), "in general, that the giving up a right without fraud is a valuable consideration. The re-lessor parts with that for which the other may very reasonably give money." That case was thus: A. was owner in fee of an advowson, except the next presentation, which belonged to B. under the same title. made a voluntary conveyance of his interest, and on the next vacancy C. claimed the whole advowson by an adverse title, and by way of compromise C. released his rights to A. and B. according to their respective interests (so that A. had the advowson in fee, except the presentation on the then vacancy, which B. had), and then, in consideration of this, A. conveyed the then next presentation to C.; and it was held that this was a sale for value, and paramount to A.'s prior voluntary gift. A. A lessee at a rack rent (x), with fine or premium Lessees, &c. paid (y), or to secure a sum of money, is a purchaser purchasers. within the statute (z), but not a lessee without fine or (t) Kerrison v. Dorrien, 9 Bing. 76. (u) Poulton v. Wiseman, Noy, 105; and see Watkins v. Steevens, Nels. 160; Doe v. Lewis, 11 C. B. 1035. (r) 2 Vern. 326. (w) 2 Taunt. 69. (x) Goodright v. Moses, 2 W. Bl. 1019; Ashton v. Bretland, 9 Mod. 59; Shaw v. Standish, 2 Vern. 327. (y) Cross v. Faustenditch, Cro. Jac. 180; and Hinde v. Collins, there cited, p. 181. (z) Naylor v. Baldwin, 1 Ch. Rep. 69. Surety. Assignee of lease. Price v. rent (a). Lessees are, in fact, within the very words [221] of the statute, which mentions purchases *"for live, lives, or years." It seems that a surety to whom a lease or conveyance of land has been made as a security and indemnity to him is a purchaser (b), for indemnity is a valuable consideration (c). The assignee of a lease is a purchaser within the statute (d). This point seems involved in the decision in Price v. Jenkins (e), for, if an assignment of a lease is always for value under the statute, an assignee of a lease must be a purchaser within it. In that case leaseholds were assigned by A. to trustees upon certain trusts after payment of out-goings. The assignment contained no pay the rent or to perform A. afterwards contracted covenant by the trustees to to sell them to the plaintiff. It was held by the Court Settlements or other instruments which are voluntary in their creation may, under certain circumstances, (a) Upton v. Basset, Cro. Eliz. 444. (b) Scot v. Bell, 2 Lev. 70; see also Beverley v. Gatacre, 2 Roll. 305 White v. Thornborough, Prec. Ch. 425. (c) Worsley v. Demattos, 1 Burr. 467, 474, 482. (d) Colville v. Parker, Cro. Jac. 158. (e) 5 Ch. D. 619. (ƒ) 26 W. R. 407; see comments of Hall, V.C., in Trowell v. Shenton, 8 Ch. D. 321. (g) 22 Ch. D. 82; and see post, p. 258. |