become valuable by subsequent transactions; as where Persons ina marriage is contracted on the faith of a provision for terested the husband or wife, secured by what was, at the under voluntime of its execution, a voluntary settlement (h); or tary settlement to *where a voluntary grantee sells to a bonâ [* 222] which ex fide purchaser (i). It can hardly, however, be argued post facto that this principle can be applied so as to make the considerations attach, grantees purchasers within the meaning of the statute, not purchas and to avoid a prior voluntary deed; for if a man ers. makes a voluntary settlement, and afterwards another voluntary settlement of the same land, no subsequent considerations can make the second prevail against the first (k). The reason of this is that when the settlor made the second settlement he had no estate or interest in the property which he could convey to a volunteer, but only to a purchaser (1), and ex post facto considerations can only make good that which was merely voidable, and never that which was simply void, in its creation (m).

The consideration of marriage is sufficient, as we Marriage have seen, to prevent a conveyance from being volun- consideration qualifies tary under the statute, and it also is sufficient to make as purchaser. void a prior voluntary or fraudulent deed (n).

So where (o) J. W. made a post nuptial settlement Douglasse v. of land on himself for life, remainder to his first and Ward. other sons in tail, and then his wife died without issue, and he, before his second marriage, settled the same land on his intended wife for her jointure, and died, leaving her and one son by her him surviving, it was held that she was entitled to the lands for her jointure in preference to her son, who claimed as tenant in tail under the first settlement; and "the Court declared Jointress the marriage was a good consideration to make the purchaser. feme a purchaser," and decreed the first settlement to

be set aside.

(h) Prodgers v. Langham, 1 Sid. 133; ante, p. 219; post, pp. 316, 318.

(i) George v. Milbanke, 9 Ves. 190; post, p. 322.

(k) Clavering v. Clavering, 2 Vern. 473.

(1) Doe v. Rusham, 17 Q. B. 724; post, p. 326. But see Beatson v. Beatson, 12 Sim. 281.

(m) See Scott v. Scott, 4 H. L. C. 1065.

(n) Watkins v. Steevens, Nels. 160; Douglasse v. Ward, 1 Ch. Ca. 99; Mathews v. Jones, 2 Anst. 516; Reeve's Case, 2 Vent. 363; Parker v. Serjeant, Finch, 146, 148; post, p. 235; Croker v. Martin, 1 Bli. N. R. 573, 588; Sug. L. of P. 148; Doe v. Lewis, 11 C. B. 1035, 1057; but see Allen v. Arme, 1 Vern. 365.

(0) Douglasse v. Ward, ubi sup.

conveyance to him in fee. Children purchasers.

Husband The husband is equally a purchaser of his interest purchaser by where the conveyance in consideration of marriage is [223] to him in fee (p); and *where the settlement is on the wife and children the children are purchasers equally with the wife (q); for the consideration runs through all the limitations to husband, wife, and issue (r). In cases like Kekewich v. Manning (s), where there was a settlement on a second marriage of the same property that had been settled on the first marriage and the only claimants under the first marriage were collaterals, the voluntary limitations in the first settlement would, if the property were an interest in land (which there it was not), be void as against the second.

Kekewich v.
Manning.

Husband was It is different where a husband obtained an estate by not purchaser the marriage, not by virtue of any settlement, but of what came merely by the marriage itself; for it seems that a husjure mariti. band was not a purchaser of that which came to him jure mariti (t). In such a case, it is conceived, the avoidance of a prior settlement would have been a fraud on marital rights rather than a conveyance avoided by the 27 Eliz. c. 4 (u).

Cestui que trust under post-nuptial settlement, when a pur

chaser.

By the Married Women's Property Act, 1882 (v), this marital right of the husband has been destroyed; so that any man who marries after 1882 acquires no estate whatever by virtue of marriage itself (w).

Of course, a person claiming under a post nuptial settlement is not a purchaser within the statute (x) on account of the consideration of marriage; and a settlement on the re-celebration in England of a Scotch marriage is voluntary (y). But a post-nuptial settlement in pursuance of an ante-nuptial agreement in writ

(p) O'Gorman v. Comyn, 2 Sch. & Lef. 147-8.

(q) Carpenter v. Carpenter, 1 Vern. 410; Rancliffe v. Parkyns, 6 Dow. 149, 209; post, p. 336.

(r) Nairn v. Prowse, 6 Ves. 752; post, p. 341.

(s) 1 D. M. & G. 176.

(1) Doe d. Richards v. Lewis, 11 C. B. 1035-1057; Collins v. Burton, 5 Jur. (N.S.) 952, S. C., reversed on other points, 4 D. G. & J. 612. But see Lance v. Norman, 2 Rep. Ch. [79] 41. (u) See Lance v. Norman, 2 Rep. Ch. [79] 41; Strathmore v. Bowes, 1 Ves. Jun. 22; 1 Wh. & Tu. L. C. 6th ed. 471.

(c) 45 & 46 Vict. c. 75, ss. 2, 5, 25.

(w) See Griffiths, 5th ed. 60, 67, 68, 69.

(r) See post, pt. v. ch. v.

(y) Ex parte Hall, 1 V. & B. 112; see Adams v. Adams, 8 Ir. Ch. Rep. 41; Dobbyn v. Adams, 7 Ir. Ch. Rep. 193.

ing(z) or, under certain circumstances, formerly of a parol agreement before marriage (a), or in consideration of an additional * portion after marriage, or of a [* 224] bargain between husband and wife (b), is deemed made for valuable consideration (c).

creditors

In the two old cases of Girling v. Lowther (d) and Are judgGarth v. Ersfield (e) it was held that a judgment cred- ment itor was a purchaser within this statute. These cases "purchasers" were commented on by Lord Hatherley (then Vice- within the Chancellor Sir W. P. Wood) in Barton v. Vanheythuy- statute. sen (f), and cited by him as authorities to decide the point.

If these two cases can be said to establish that a Contrary judgment creditor is a purchaser within the statute, decisions. they are directly opposed to a case decided about the same time, in which there was a voluntary settlement, and subsequent lessees, and also judgment creditors; the settlement was held void against the lessees but good against the judgment debts (g). The case is reported as if it had been a question of creditors, but lessees have always been considered purchasers, and the case is only intelligible on the assumption that it was decided on 27 Eliz. c. 4, though neither statute is mentioned.

The view that judgment creditors are purchasers within the meaning of the statute was overruled by the unanimous opinion of Lord Chancellor Lord Cranworth and Lords Justices Knight Bruce and Turner, in Beavan v. Earl of Oxford (h). The Lord Chancellor said Bevan vt Earl of the question was, whether judgment creditors were pur- Oxford. chasers within the meaning of the statute of Elizabeth; in other words, was a judgment creditor a person who, in the language of the Act, had purchased any part of

(z) Post, pt. v. ch. v.; Dart, V. & P. 5th ed. 894, 895. (a) Post, pt. v. ch. v.; but see Crossly v. Elsworthy, L. R. 12 Eq. 164; Trowell v. Shenton, 8 Ch. D. 318.

(b) Teasdale v. Braithwaite, 5 Ch. D. 630; In re Foster and Lister, 6 Ch. D. 87; Shurmur v. Sedgwick, 24 Ch. D. 597; post, pp. 289 et seq.

(c) Post, pp. 281 et seq.

(d) 2 Rep. Ch. 136 [262]. But see Naylor v. Baldwin, 1 Rep.

Ch. 69 [130].

(e) Sir J. Bridg. 22.

(f) 11 Hare, 126.

(g) Naylor v. Baldwin, 1 Rep. Ch. 69 [130].

(h) 6 De G. M. & G. 492. This case has been followed in

Upper Canada in Gillespie v. Van Egmont, 6 Chy. 553.

Brace v. Duchess of Marlborough. Judgment may not be tacked to a mortgage; for it is not purchase.

Lord Cranworth's opinion.

*

66

the lands comprised in the settlement, or some rent, profit, or commodity in or out of the same"? 'Independently of any authority," said his Lordship, "I confess I should have thought the proposition hardly argu. able that a person who recovers judgment is a purchaser. A purchaser, in the sense in which the word is used in the statute, is one who gives money or other [* 225] valuable consideration in order to have the land. The person who recovers a judgment may indeed eventually get the land, because under the Statute of Westminster he may take the land in execution, and therefore he is said to have, even independently of the last statute, a lien on the land; but it is not by any pur chase, but by virtue of the right which the law gives him." In support of this, his Lordship cited the case of Brace v. Duchess of Marlborough (i), in which the second rule laid down is, "that if a judgment creditor, or creditor by statute or recognizance, brings in the first mortgage, he shall not tack or unite this to his judgment, &c., and thereby gain a preference; for one cannot call a judgment, &c., creditor a purchaser, nor a has such creditor any right to the land; he has neither jus in re nor ad rem, and therefore, although he releases all his right to the land, he may extend it afterwards. All that he has by the judgment is a lien upon the land, but non constat whether he will ever make use thereof; for he may recover the debt out of the goods of the cognizor by fi. fa., or may take the body, and then dur. ing the defendant's life he can have no other execution; besides, the judgment creditor does not lend his money upon the immediate view or contemplation of the cog nizor's real estate; for the land afterwards purchased may be extended on the judgment, nor is he deceived or defrauded though the cognizor had before made twenty mortgages of all his real estate; whereas a mortgagee is defrauded or deceived if the mortgagor before that time mortgaged his land to another."

Lord Cranworth, after commenting on the old cases above referred to (k) and on Barton v. Vanheythuysen (1) which he said was merely a dictum, and not an actual decision to the contrary said: "The conclusion is thus irresistible that under the statute of Elizabeth, and inde

(i) 2 P. Wms. 491; see also Lacey v. Ingle, 2 Ph. 413; Barrow v. Gray, 2 Cro. Eliz. 551-2; Ross v. Pope, Plowd. 72. (k) Girling v. Lowther, 2 Ch. Rep. 136, and Garth v. Ersfield, Sir J. Bridg. 22; and see Ex parte Knott, 11 Ves. 609. (7) 11 Hare, 126.

creditor not a

pendently of the statute of the present Queen (m), these judgment creditors have no right as purchasers; they Judgment are not purchasers; within the meaning of the statute purchaser. of Elizabeth, and can, therefore, have no right against the voluntary settlement, (n).

*This case was followed and strongly ap- [* 226] proved by Lord Romilly, M. R., in Kinderley v. Jervis (o), and is fully in unison with the older case of Whitworth v. Gaugain (p), decided by Vice-Chancellor Wigram, and affirmed, on appeal, by Lord Lyndhurst (4), where much the same point was under discussion, although there the prior claim was by an equitable mortgagee against a subsequent judgment creditor, without notice.

The difficulty of the subject is increased by the statute 1 & 2 Vict. c. 1 & 2 Vict. c. 110 (r), the 13th section of which enacts 110, s. 13. that judgment against any persons shall operate as a charge upon all lands, &c., of which such person shall be seised, &c., at the time or afterwards, "or over which such person shall at the time of entering up such judg ment, or at any time afterwards, have any disposing power which he might, without the assent of any other person, exercise for his own benefit" (s), in the same way as if such person had had the power to, "and had by writing under his hand agreed to, charge" the lands with the amount of such judgment debt and interest thereon.

dispose of.

But this, it seems, makes no difference; the judgment Only refers only binds the beneficial interest of the debtor in the to lands lands over which he has a bonâ fide disposing power, and debtor may honestly not the interest of other persons in those lands which he might by improper conduct obtain possession of; the judgment is only made a charge on what was at the time really the property of the debtor. The Act does not say that the judgment creditors are to be in the same position as they would have been if there had been a charge for valuable consideration, especially when (as in the case of land subject to a voluntary settlement) the (m) 1 & 2 Vict. c. 110, s. 13.

(n) Contra, O'Donovan v. Rogers, 7 Ir. Ch. Rep. 496.

(0) 22 Beav. 1.

(p) 3 Hare, 416.

(g) 1 Ph. 728.

(r) Extended to Ireland by 3 & 4 Vict. c. 105.

(s) That is, "not as a trustee' Arnold v. The Mayor of Gravesend, 25 L. J. Ch. 530.