der the * circumstances sufficient to prevent a [* 508] deed being set aside on the ground of fraud, or undue influence, or of the, existence at the date of the deed of a confidetial or fiduciary relation between the parties. But during the continuance of the relation, less weight is given to the lapse of time than is justly due to it when no such relation subsists (h).

So where forty years had elapsed between the transaction complained of and the institution of the suit to impeach it, the confidential or fiduciary character on which relief was founded having de facto ceased for a long period, evidence having been lost, and the position of matters materially altered, Sir G. J. Turner, V.C., dismissed the bill, saying (i): "Under these circumstances I think I should not be going too far in holding that this bill ought to be dismissed upon the ground of length of time only."

In Turner v. Collins (k), a deed of gift from a son to his father made in 1855, but not impeached by the son till 1869, although he had complained of it and had taken advice in 1862, was upheld, except as to a particular power which was struck out of the deed.

And where there has been laches and acquiescence, after the confidential or fiduciary relation has been completely dissolved, the Court will not relieve (1).

And delay is a bar when during the interval the rights and liabilities of others have been varied (m).

But lapse of time will not prevent relief where the Delay when influence, by an undue exertion of which the gift or not a bar. voluntary settlement was obtained, exists until the action is brought. So delay is no bar when, having regard to all the circumstances of the case, it is not unreasonable. In Kempson v. Ashbee (n) a young lady in 1859 joined her stepfather in a bond as his surety to mature in six years. In 1866, under pressure from

(h) See Gresley v. Mousley, 4 De G. & J. 95-96.

(i) In Beaden v. King, 9 Hare, 499, 533; and see Wright v. Vanderplank, 2 K. & J. 1, S. C. 8 De G. M. & G. 133, 146–7, 149; Clanricarde v. Henning, 30 Beav. 175.

(k) L. R. 7 Ch. 329; ante, p. 489.

(1) Blagrave v. Routh, 2 K. & J. 509, S. C. 8 De G. M. & G. 620; Turner v. Collins, L. R. 7 Ch. 341-342.

(m) Ridgway v. Newstead, 3 D. F. & J. 483-484.

(n) L. R. 10 Ch. 15; ante, p. 489.

[* 509] him, she joined in * executing a new bond as his surety for the sum then due and arrears of interest. In 1872 active proceedings were first taken against her, when she at once filed a bill to impeach the bonds, which were held void against her. And coverture is only in any case not within the Married Women's Property Act, 1882, an excuse for delay (o).

Mere delay matters little or nothing so long as the position of all the parties to the transaction is not in any substantial way altered, whether by delay, or by anything done during the interval (p). And of course delay is immaterial so long as the person delaying does not know his rights, or is ignorant of the fact that the transaction can be impeached (q). To lose a remedy by laches or delay, it is, if not universally, at all events ordinarily necessary that there should be sufficient knowledge of the facts constituting the title to relief (r).

(0) Hatch v. Hatch, 9 Ves. 292; Wollaston v. Tribe, L. R. 9 Eq. 44. But see now 45 & 46 Vict. c. 75; Lowe v. Fox, 15 Q. B. D. 667.

(p) Wollaston v. Tribe, L. R. 9 Eq. 44, 50; Ridgway v. Newstead, 3 D. F. & J. 485; Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 239-240; King v. Anderson, I. R. 8 Eq. 615.

(q) Cocking v. Pratt, 1 Ves. 401; Wood v. Downes, 18 Ves. 122, 130; Roche v. O'Brien, 1 Ball & B. 330, 342, where a deed confirmed by a subsequent deed was set aside after thirty-four years; D'Arcy v. D'Arcy, Hayes & J. 115; Morse v. Royal, 12 Ves. 373, 374; Life Assurance of Scotland v. Siddall, 3 D. F. & J. 58; Sug. V. & P. 14th ed. 252-3.

(r) Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. at p. 241.

AND

MISCELLANEOUS POINTS, PRACTICE UNDER
THE STATUTES OF ELIZABETH,
COSTS.

CHAPTER I.

MISCELLANEOUS POINTS AND PRACTICE.

restrained

As was decided by Lord Eldon (a), the Court will not Settlor restrain a man who has previously made a voluntary neither settlement of real property from selling it to a pur- from selling chaser; nor, on the other hand, will it in general help nor aided him to frustrate his own deed (b). If, however, the under 27 purchaser be willing to complete the purchase on hav. Eliz. c. 4. ing a good title shewn, as he can, by so doing, remove all objection to his title as regards the voluntary settlement, it seems that the Court will, in this exceptional case, enforce specific performance against him (c). Where the title depends on the invalidity of a previous voluntary instrument, the Court will not, at the instance of the author of that instrument, order specific performance of a contract to sell for value against an unwilling purchaser (d).

So.

In such cases the Court remains neutral; it will not impede the sale whereby the vendor seeks to get rid of the voluntary settlement, nor will it assist him in doing The reasons why the Court will not in general enforce, on behalf of the voluntary settlor, *a con- [* 512 ] tract for sale of that property, are these: it will not help him to avoid his own deed, and a vendor has no right

(a) Pulvertoft v. Pulvertoft, 18 Ves. 84; Barton v. Vanheythuysen, 11 Hare, 131; Rosher v. Williams, L. R. 20 Eq. 218.

(b) Clarke v. Willott, L. R. 7 Ex. 318; General Meat Supply Association v. Bouffler, 40 L. T. (N.S.) 126, S. C. 41 L. T. (N.S.) 719.

(c) Peter v. Nicolls, L. R. 11 Eq. 391; Fry, Sp. Pf. 2nd ed. 176, 177.

(d) Clarke v. Willott, L. R. 7 Ex. 318; Fry, Sp. Pf. 2nd ed. 176, 177.

Settlor can

ment by his own admis

to insist on a purchaser making his title good by accepting it (e).

And the Court will not interfere actively against a volunteer through the medium of a person claiming only through him who created the voluntary settlement (f); for the voluntary conveyance is void only as against a purchaser. So, in general, a purchaser alone can induce the Court to lend its aid in removing it, and the settlor cannot enforce the specific performance of the contract (g) except as against a willing purchaser (h).

So a purchaser of property the subject of a voluntary settlement has been held entitled to recover back his deposit from the vendor (i).

And where the settlor made a subsequent mortgage not cut down of the land in consideration of moneys to be then afterthe settlewards advanced, it was held that declarations or admissions, implied or expressed, of the mortgagor, were not admissible as evidence after the mortgagor's death that money had actually been advanced upon the mortgage (k).

sions.

Can creditors of deceased settlor enforce specific performance?

The Court, however, under 22 & 23 Vict. c. 61, s. 5, will restrain a husband against whom a decree of divorce has been obtained from selling real estate comprised in a post-nuptial settlement made by the husband. which recited an ante-nuptial agreement, pending the result of an inquiry as to the settlement (1).

The question has been raised, but not decided, in Johnson v. Legard (m), whether the creditors of a vol. untary settlor after his death stand in a better position (e) Clarke v. Willott, L. R. 7 Ex. 313.

(f) Per Lord Hatherly in Dolphin v. Aylward, L. R. 4 H. L. 486, 502.

(g) Smith v. Garland, 2 Mer. 123, 127, where Sir W. Grant acted upon the opinion he had previously expressed in Burke v. Dawson, Rolls, March 1805 (MS.); Sug. V. & P. 14th ed. 720; Johnson v. Legard, 3 Mad. 283; S. C. T. & R. 281; and see Hinton v. Hinton, 2 Ves. 631-3; Davenport v. Bishopp, 2 Y. & C. C. C. 451, S. C. 1 Phil. 698; Sug. H. L. 153; Doe v. Webber, 1 Ad. & E. 733; Rosher v. Williams, L. R. 20 Eq. 218; Fry, Sp. Pf. 2nd ed. 176, 177. (h) Peter v. Nicolls, L. R. 11 Ex. 391.

(i) Clarke v. Willott, L. R. 7 Ex. 313; General Meat Supply Association v. Bouffler, 40 L. T. (N:S.) 126, S. C. 41 L. T. (N.S) 719. (k) Doe v. Webber, 1 Ad. & E. 733, 740; ante, p. 219.

(1) Watts v. Watts, 24 W. R. 623.

(m) 3 Mad. 283, S. C. T. & R. 285.

than the settlor did, so as to be able to compel specific performance of a contract for sale entered *into [* 513] by the settlor. It is conceived that, as their rights are those, and those only, of the settlor, and as the Court would not assist him to avoid his own deed, they could not compel specific performance of such a contract.

But, on the other hand, specific performance of an Contract of agreement to sell property previously the subject of a sale enforced voluntary settlement, will be ordered at the instance of by purchaser, the purchaser (n), So an equitable mortgagee's title will be enforced (o), even though he entered into the contract with notice of the settlement (p), and though the settlement was supported by meritorious consideration (q), and as against a legal estate vested in parties deriving under voluntary limitations in a marriage settlement (r). So a decree has been made though the settlor was a feme covert (s); and although the volunteers (a complete trust having been created) had filed a bill, which they could sustain, to have the trusts carried into execution, and although that suit was pending (t).

A subsequent purchaser cannot enforce specific per- unless of formance of a contract for the sale to him of leasehold leaseholds, property, whether the only property, or merely a part

(n) Leach v. Dean, 1 Ch. Rep. 78, and see the decree L. R. 1 Ch. 461; Parry v. Cawarden, 2 Dick. 544; Willats v. Busby, 5 Beav. 193; Daking v. Whimper, 26 Beav. 568; Currie v. Nind, 1 My. & Cr. 17, S. C. 5 L. J. (N.S.) Ch. 169, where the decree is given; Stackpoole v. Stackpoole, 4 D. & War. 320, 352-3; Buckle v. Mitchell, 18 Ves. 100; Lister v. Turner, 5 Hare, 281, 291; Rosher v. Williams, L. R. 20 Eq. 213. For the form of a decree enforcing (at the suit of a purchaser) an agreement to buy property the subject of a previous, voluntary settlement, see Seton, 4th ed. 1374; and for decree against vendor (who had made a voluntary settlement of the estate) saving the rights of an absent claimant under the settlement, see Currie v. Nind, 5 L. J. (N.S.) Ch. 172, and Willats v. Busby, 5 Beav. 200.

(0) Ede v. Knowles, 2 Y. & C. C. C. 172, where the decree is given, p. 180; Lister v. Turner, 5 Hare, 281, where there was a contract to execute a legal mortgage with power of sale, and the property was ordered to be sold; see 5 Hare, 293; Seton, 4th ed. 1374.

(p) Buckle v. Mitchell, 18 Ves. 100; Butterfield v. Heath, 15 Beav. 408.

(q) Parry v. Cawarden, 2 Dick. 544; Shaw v. Standish, 2 Vern.

327.

(r) Johnson v. Legard, 3 Mad. 283, S. C. T. & R. 281; Stackpoole, v. Stackpoole, 4 D. & War. 820, 352.

(s) Butterfield v. Heath, 15 Beav. 408; ante, p. 284.

(t) Pulverloft v. Pulvertoft, 18 Ves. 92; Metcalfe v. Pulvertoft, 1 V. & B. 180, S. C. 2 V. & B. 200; 2 Spence, Eq. Jur. 289.