11 Geo. 4 & 1 Will. 4,

c. 47, s. 1.

Fraudulent

conveyances.

For remedying frauds committed on creditors by wills.

as by bond or covenant in which the heirs were named (1 Str. 665; 4
East, 492). But the ancestor, by disposing of the land by will, could de-
prive his creditors of that means of payment, as the devisee was neither at
law (4 East, 491; 7 East, 135; 2 Atk. 292, 432; 2 Anstr. 515), nor in
equity (2 Atk. 432), liable to the payment of the testator's debts in respect
of the land devised. The heir-at-law also to whom the land descended
might have defeated the creditor of his ancestor by aliening the land
before suit by the creditors (1 P. Wms. 777), although in equity he
appears to have been responsible for the value of the land sold (Id."‍777,
431; see 1 Fonbl. Eq. 283). To obviate those mischiefs the statute 3 & 4
Will. & Mary, c. 14 (made perpetual by 6 & 7 Will. 3, c. 14, and extended
to Ireland by 4 Aune, c. 5), was passed. And after that statute the course
was to sue the heir, as being the person bound by and named in the
specialty, and the devisee, because he had the land (Re Hyatt, Bowles v.
Hyatt, 38 Ch. D. 619). The statute 3 & 4 Will. & Mary was repealed and
re-enacted by the above act with additional provisions to supply some omis-
sions in the former statute. For the old law as to proceedings against the
heir upon the bond of his ancestor, as to alienation of assets by the heir,
and the statutes of fraudulent devises, see further the notes to Jeffreson v.
Morton (2 Wms. Saund. 12, ed. 1871).

It was not necessary under 3 & 4 Will. & Mary, c. 14, as it is under the
act 13 Eliz. c. 5, against fraudulent conveyances, that the devise should
have been made with the intent to delay, hinder, or defraud creditors
(Coope v. Cresswell, 2 Eq. 106). Under 13 Eliz. c. 5, fraudulent convey-
ances may be set aside by creditors after the death of the debtor (Lush v.
Wilkinson, 5 Ves. 384). The action should be brought by the plaintiff on
behalf of himself and all other unsatisfied creditors of the deceased (French
v. French, 6 D. M. & G. 95; Richardson v. Smallwood, Jac. 552). And it
seems that the plaintiff need not have obtained judgment for his debt
(Reese River Co. v. Atwell, 7 Eq. 347). See the forms of order, Seton,
6th ed., 2345.

2. And whereas it is not reasonable or just that by the practice or contrivance of any debtors their creditors should be defrauded of their just debts, and nevertheless it hath often so happened, that where several persons having by bonds, covenants or other specialties, bound themselves and their heirs, and have afterwards died seised in fee simple of and in manors, messuages, lands, tenements and hereditaments, or had power or authority to dispose of or charge the same by their wills or testaments, have, to the defrauding of such their creditors, by their last wills or testaments, devised the same or disposed thereof in such manner as such creditors have lost their said debts; for remedying of which, and for the maintenance of just and upright dealing, be it therefore further enacted, that all wills and testamentary limitations, dispositions or appointments, already made by persons now in being, or hereafter to be made by any person or persons whomsoever, of or concerning any manors, messuages, lands, tenements or hereditaments, or any rent, profit, term or charge out of the same, whereof any person or persons, at the time of his, her, or their decease, shall be seised in fee simple, in possession, reversion or remainder, or have power to dispose of (a) the same by his, her or their last wills or testaments, shall be deemed or taken (only as against such person or persons, bodies politic or corporate, and his and their heirs,

1

1 Will. 4, c. 47, s. 2.

successors, executors, administrators and assigns, and every of 11 Geo. 4 & them with whom the person or persons making any such wills or testaments, limitations, dispositions or appointments, shall have entered into any bond, covenant or other specialty, binding his, her, or their heirs) to be fraudulent and clearly, absolutely and utterly void, frustrate, and of none effect; any pretence, colour, feigned or presumed consideration, or any other matter or thing to the contrary notwithstanding.

(a) The words "power to dispose of" were held to include leasehold estates pur autre vie, and therefore, that a devise of them was void against creditors (Westfaling v. Westfaling, 3 Atk. 460, 465). Sect. 2 of 3 & 4 Will. & Mary, c. 14, applied to devises of every description of estate legal or equitable. And by sect. 3, the devisee of an equitable estate seems to be made liable to an action of debt by the creditors of the devisor (Coope v. Cresswell, 2 Ch. 121).

Under sect. 59 of Conv. Act, 1881 (post), obligations under seal executed since 31st December, 1881, operate in the absence of a contrary intention to bind heirs and real estate, although not so expressed.

creditors to

recover upon bonds, &c.

3. And, for the means that such creditors may be enabled to Enabling recover upon such bonds, covenants and other specialties, be it further enacted, that in the cases before mentioned every such creditor shall and may have and maintain his, her, and their action and actions of debt or covenant (b) upon the said bonds, covenants and specialties against the heir and heirs at law of such obligor or obligors, covenantor or covenantors, and such devisee and devisees, or the derisce or devisees of such firstmentioned devisee or devisees (c) jointly, by virtue of this act (d); and such devisee and devisees shall be liable and chargeable for a false plea by him or them pleaded, in the same manner as any heir should have been for any false plea by him pleaded, or for not confessing the lands or tenements to him descended (e).

(b) By stat. 3 & 4 W. & M. c. 14, s. 3, the remedy was confined to 3 & 4 W. & actions of debt; and it was decided that an action of covenant would not lie M. c. 14, against a devisee to recover damages for a breach of covenant entered confined to into by the devisor (Wilson v. Knubley, 7 East, 128). It has been held actions of however that damages recovered in an action of covenant, brought in debt. respect of breaches of covenant, happening after death of the testator, Debts within were a debt payable out of his real estate under a charge of debts in his 3 & 4 W. & will (Morse v. Tucker, 5 Hare, 79). The statute 3 & 4 W. & M. c. 14, M. c. 14. only applied where debt in the ordinary sense of the word existed between the parties in the life-time of both (Farley v. Briant, 3 Ad. & El. 839). Liquidated damages for breach of covenant occurring after the covenantor's death, where the liability during his life was contingent, were not such a debt (Ib.; see Morse v. Tucker, 5 Hare, 83). But money due under an absolute covenant for the payment of sums certain, was such a debt even though not accruing until after the covenantor's death (Jenkins v. Briant, 6 Sim. 603). So, also, where a testator had covenanted in his son's marriage settlement for the payment of 3,0007. during his life, or three months after his decease (Coope v. Cresswell, 2 Ch. 112).

(c) The remedy is here extended to the devisees of devisees (Westfaling v. Westfaling, 3 Atk. 460).

(d) Equity followed the rule of law; and therefore, in a bill by a specialty creditor against a devisee under the 3 & 4 W. & M. c. 14, it was decided, that the heir at law (if any) of the testator was a necessary party

11 Geo. 4 &
1 Will. 4,
c. 47, s. 3.

Application
of assets as

between heir

and devisee.

If there is no heir at law,

actions may

(Gawler v. Wade, 1 P. Wms. 99; Warren v. Stawell, 2 Atk. 125). In arranging the funds in equity between the heir and devisee, it is settled that assets descended to the heir must be applied to pay debts before lands can be charged which are specifically devised (Chaplin v. Chaplin, 3 P. Wins. 367; Powis v. Corbet, 3 Atk. 556). See, further, as to the order in which assets are applied in payment of debts, the note to the Admon. of Estates Act, 1833, post, p. 402.

(e) See Price v. Evans, 4 Sim. 514.

The right of action under the above section was not taken away by the Administration of Estates Act, 1833 (Re Illidge, Davidson v. Illidge, 27 Ch. D. 482). Consider now the effect of the Land Transfer Act, 1897

(post, p. 417).

4. If in any case there shall not be any heir at law against whom, jointly with the devisee or devisees, a remedy is hereby be maintained given, in every such case every creditor to whom by this act relief is so given shall and may have and maintain his, her and their action and actions of debt or covenant, as the case may be, against such devisee or devisees solely; and such devisee or devisees shall be liable for false plea as aforesaid.

against the devisee.

Not to affect

Formerly a devisee could not be sued without the heir (Hunting v. Sheldrake, 9 M. & W. 256. See Gawler v. Wade, 1 P. Wms. 100).

5. Provided always, and be it further enacted, that where limitations for there hath been or shall be any limitation or appointment, just debts or portions for devise or disposition, of or concerning any manors, messuages, children. lands, tenements or hereditaments, for the raising or payment of any real and just debt or debts, or any portion or portions, sum or sums of money, for any child or children of any person, according to or in pursuance of any marriage contract or agreement in writing, bonâ fide made before such marriage, the same and every of them shall be in full force, and the same manors, messuages, lands, tenements and hereditaments shall and may be holden and enjoyed by every such person or persons, his, her and their heirs, executors, administrators and assigns, for whom the said limitation, appointment, devise or disposition was made, and by his, her and their trustee or trustees, his, her and their heirs, executors, administrators and assigns, for such estate or interest as shall be so limited or appointed, devised or disposed, until such debt or debts, portion or portions, shall be raised, paid and satisfied, anything in this act contained to the contrary notwithstanding.

Provisions for payment of debts within this section.

The uniform rule is, that an effectual provision by will for payment of creditors is not fraudulent within the statute; and it makes no difference whether the land be devised to trustees to sell, or descend to the heir charged with debts (Matthews v. Jones, 2 Anstr. 515; Bailey v. Ekins, 7 Ves. 323; Bath v. Bradford, 2 Ves. sen. 590; Plunket v. Penson, 2 Atk. 292; Shiphard v. Lutwidge, 8 Ves. 26; Kidney v. Coussmaker, 12 Ves. 154). But if the devise for payment of debts does not provide for it in a practicable manner, the case will not be taken out of the statute (Hughes v. Doulben, 2 Cox, 170; 2 Br. C. C. 614). A devisee of all the devisor's lands in trust to sell and pay all the testator's debts could not be sued under the stat. 3 & 4 W. & M. c. 14 (Gott v. Atkinson, Willes, 321; Soames v. Robinson, 1 M. & K. 500; sec Barker v. May, 9 B. & C. 489). As to the

effect of a devise for payment of debts by rents and profits, see Bootle v. Blundell, 19 Ves. 528. A direction in a will to pay simple contract before specialty creditors was held not to be void, as it was within the exception in the Statute of Fraudulent Devises (Millar v. Horton, Coop. C. C. 45); but a devise not for the payment of debts generally would not be within the exception (3 Barnard, 304). Though the Statute of Fraudulent Devises prevented a devise for payment of legacies from disappointing creditors by specialty, it did not prevent a devise for payment of debts generally from letting in creditors by simple contract to the prejudice of creditors by specialty (Kidney v. Coussmaker, 12 Ves. 154; 2 Átk. 104).

11 Geo. 4 &

1 Will. 4,

c. 47, s. 5.

able for debts,

brought.

6. In all cases where any heir-at-law shall be liable to pay Heir-at-law the debts or perform the covenants of his ancestors, in regard to to be answerany lands, tenements, or hereditaments descended to him, and although he shall sell, alien, or make over the same, before any action may sell estate brought or process sued out against him, such heir-at-law shall before action be answerable for such debt or debts, or covenants, in an action or actions of debt or covenant, to the value of the said lands so by him sold, aliened, or made over, in which cases all creditors shall be preferred as in actions against executors and administrators; and such execution shall be taken out upon any judgment or judgments so obtained against such heir, to the value of the said lands, as if the same were his own proper debt or debts; saving that the lands, tenements, and hereditaments, bonâ fide aliened before the action brought, shall not be liable to such

execution.

Under the L. T. Act, 1897, the real estate of a person dying after 1897 is made available for payment of his debts without the necessity for proceedings; such real estate vesting in the personal representative (see post, p. 417). The following note relates to the law independent of that

act.

Debts by specialty in which the heirs are bound constitute no lien or Specialty charge upon the land, either in the hands of a debtor or of his heir debts no (Richardson v. Horton, 7 Beav. 112; Morley v. Morley, 5 D. M. & G. 610). charge on the By taking proper proceedings the specialty creditors may obtain payment land. out of the descended or devised estates in the hands of the heir or devisee; but if such proceedings are not taken, the heir or devisee may alienate, and in the hands of the alience the land is not liable, though the heir or devisee remains personally liable, to the extent of the value of the land alienated (Richardson v. Horton, sup.; Re Hedgeley, Small v. Hedgeley, 34 Ch. D. 384, where the devisee aliened by her marriage settlement, and her separate estate was subsequently made liable).

An heir taking lands by descent is liable for his ancestor's debts no Extent of further than the value of the land descended; therefore if the heir pay his liability of ancestor's debts to the value of the land descended, he may hold the land heir to debts. discharged from the other debts of the ancestor (Buckley v. Nightingale, 1 Str. 655; Horn v. Horn, 2 Sim. & S. 448; see 8 Sim. 259). But a plea by an heir to an action on his ancestor's bond, that he claims to retain a certain sum for money laid out in repairing the premises descended, cannot be supported (Shetelworth v. Neville, 1 T. R. 454), although it may be otherwise if the repairs were necessary (Ib.; see Hill v. Maurice, 1 De G. & Sm. 214). The heir-at-law is entitled to the rents until judgment is given against him (1 T. R. 457). In this respect the effect of the Administration of Estates Act, 1833 (post, p. 399), is different.

Bankruptcy is not such an alienation as will defeat creditors under this Bond fide section (Ex p. Morton, 5 Ves. 449). The alienation must be one which alienation. carries the beneficial interest, and accordingly, when the devisee was a

1 Will. 4, c. 47, s. 6.

11 Geo. 4 & trustee, a conveyance to new trustees was not within this section (Coope v. Cresswell, 2 Ch. 112); nor, at law, was the mortgage by an equitable tenant for life of his life interest (Ib.); nor was a covenant in marriage articles to settle descended lands (Pimm v. Insall, 1 M. & G. 449; compare Re Mouat, 1899, 1 Ch. 834). But an actual settlement by the devisee on marriage is such an alienation (Spackman v. Timbrell, 8 Sim. 253; Re Hodgeley, Small v. Hedgeley, 34 Ch. D. 379); and so is an equitable deposit with memorandum (British Mutual Co. v. Smart, 10 Ch. 567; disapproving Carter v. Sanders, 2 Drew. 248).

Where an

action of debt

is brought against the

heir, he may plead riens per descent.

Devisees to be liable the

at-law.

7. Provided always, and be it further enacted, that where any action of debt or covenant upon any specialty is brought against the heir, he may plead riens per descent at the time of the original writ brought or the bill filed against him, anything herein contained to the contrary notwithstanding; and the plaintiff in such action may reply that he had lands, tenements, or hereditaments from his ancestor before the original writ brought or bill filed; and if, upon the issue joined thereupon, it be found for the plaintiff, the jury shall inquire of the value of the lands, tenements, or hereditaments so descended, and thereupon judgment shall be given and execution shall be awarded as aforesaid; but if judgment be given against such heir by confession of the action, without confessing the assets descended, or upon demurrer or nihil dicit, it shall be for the debt and damage, without any writ to inquire of the lands, tenements, or hereditaments so descended.

In an action against an heir or devisee (see Com. Dig. Pleader (2E)), the defendant may not only plead any matter which might have been pleaded by the ancestor or devisor, but may also deny the character in which he is sued; or admitting it, may plead that he has nothing by descent or by devise, either generally (b.) or specially; viz., that he has nothing but a reversion after an estate for life or years (Com. Dig. Pleader (2 E 3) ), or that he has paid debts of an equal or superior degree, to the amount of the assets descended or devised; or that he retains the assets to satisfy his own debt of equal or superior degree, or debts of a superior degree due to a third person (Ib.; 1 Chitty on Pleading, 4th ed. 431, 432; 2 Ib. 468-470; 3 Ib. 973, 974; Selw. N. P. Debt, s. 6; 2 Saund. 7, n. 4). To debt against heirs on the bond of their ancestors, the defendants pleaded non est factum, per fraudem and riens per descent; and the plaintiff replied, that after the death, &c., and before the commencement of the suit, the defendant had lands, &c., by descent, &c.; it was held, that this was a replication under the statute 3 & 4 Will. & Mary, c. 14, s. 6, and that the jury, having found that lands descended, ought to have assessed the value of those lands (Brown v. Shuker, 1 Cr. & Jer. 583).

For forms of statement of claim, defence, and replication in proceedings under this statute, see Bullen & Leake, 4th ed. vol. 1, p. 194; vol. 2, p. 205.

8. Provided always, and be it further enacted, that all and every the devisee and devisees, made liable by this act, shall be same as heirs liable and chargeable in the same manner as the heir-at-law by force of this act, notwithstanding the lands, tenements or hereditaments to him or them devised shall be aliened before the action brought.