(a) Co. Lit. 250. b.

thereby it is enacted and declared, that all feoffments, gifts, grants, &c., "to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries and reliefs," shall be void, &c. So that this act doth not extend only to creditors, but to all others who had cause of action, or suit, or any penalty, or forfeiture, &c.

And it was resolved, that this word forfeiture should not be intended only of a forfeiture of an obligation, recognizance, or such like (as it was objected by some, that it should, in respect that it comes after damage and penalty), but also to everything which shall by law be forfeit to the king or subject. And therefore, if a man, to prevent a forfeiture for felony, or by out-lawry, makes a gift of all his goods, and afterwards is attainted or outlawed, these goods are (a) forfeited notwithstanding this gift, the same law of recusants, and so the statute is expounded beneficially to suppress fraud. Note well this word (b) (declare) in the act * of 13 Eliz., by which the parliament expounded that this was (e) Hard. 397. the (c) common law before. And according to this resolution it was decreed, Hil. 36 Eliz., in the Exchequer-Chamber. Standen and Mich. 42 & 43 Eliz. in the Common Pleas, on evidence Bullock's case. to a jury, between Standen (d) and Bullock, these points (d) Moor 605, 615. Bridgm. were resolved by the whole court on the statute of 27 Eliz. c. 4. Walmsley, J., said, that Sir Christ. Wray, late C. J. Palm.217. Lane of England, reported to him, that he and all his companions of the King's Bench were resolved, and so directed a jury

(b) Co. Lit. 76. a. 290. b.

23.

5 Co. 60. b.

22. 2 Jones 95.

on evidence before them; that where a man had conveyed his land to the use of himself for life, and afterwards to the use of divers others of his blood, with a future power of revocation, as after such feast, or after the death of such one; and afterwards, and before the power of revocation began, he, for valuable consideration, bargained and sold the land to another and his heirs; this bargain and sale is (e) 1 Sid. 133. within the (e) remedy of the said stat. For although the stat. saith, "the said first conveyance not by him revoked, according to the power by him reserved," which seems by the literal sense to be intended of a present power of revocation, for no revocation can be made by force of a future

Show. 46, and post13,in notis. Colshil's Case. (6) 2 And. 55,

107. Godb. 210.

Cro. El. 529. Moor 857. Ley 2, 75, 79.

power until it comes in esse: yet it was held that the intent of the act was, that such voluntary conveyance which was originally subject to a power of revocation, be it in præsenti, or in futuro, should not stand against a purchaser bonâ fide for a valuable consideration; and if other construction should be made, the said act would serve for little or no purpose, and it would be no difficult matter to evade it: so if A. had reserved to himself a power of revocation with the assent of B., and afterwards A. bargained and sold the land to another, this bargain and sale is good, and within the remedy of the said act; for otherwise the good provision of the act, by a small addition, and evil invention, would be defeated (a). (a) Sed vide 2 And on the same reason it was adjudged, 38 Eliz. in the Common Pleas, between Lee and his wife executrix of one Smith plaintiff, and Mary (b) Colshil, executrix of Thos. Colshil, defendant in debt on an obligation of 1000 marks, Rot. 1707. The case was, Colshil the testator had the office of the Queen's customer, by letters patent, to and his deputies; and by indenture between him * Smith, the testator of the plaintiff, and for 6007. paid, and 1001. per ann. to be paid during the life of Colshil, made a deputation of the said office to Smith; and Colshill covenanted with Smith, that if Colshil should die before him, that then his executors should repay him 3007. And divers covenants were in the said indenture concerning the said office, and the enjoying of it; and Colshil was bound to the said Smith in the said obligation to perform the covenants; and the breach was alleged in the non-payment of the 300%., forasmuch as Smith survived Colshil; and although the said covenant to repay the 3007. was lawful, yet forasmuch as the rest of the covenants were against the statute of (c) 5 E. 6, cap. 16, and if the addition of a nant should make the obligation of force as to that (d), the statute would serve for little or no purpose; for this cause

him

and

lawful cove

power

of revoca

it was adjudged, that the obligation was utterly void.
2. It was resolved, that if a man hath
tion, and afterwards to the intent to defraud a purchaser, he
levies a (e) fine, or makes a feoffment, or other conveyance
to a stranger, by which he extinguishes his power, and

(c) Style 29.

Cro. El. 520.

Cro. Jac. 269 234.a.12.Co.78.

Hob.75.Co. Lit.

3 Inst. 148,154.

3

Keb. 26, 659, 660, 717, 718.

1 Brownl.70,71.

2 And. 55, 107.

3 Bulst. 91. 3 Leon. 33

1 Rol.Rp. 157.

256. Goldsb.

180.

(d) 2 And. 56,

57, 108. 1 Mod.
H14.11 Co.
Rep. 35, 36.
27. b. 2 Rolfe's
224. a. 2 Jones

28. Co. Lit.

90, 91. Cro. El 529, 530. Cro.

Car. 338, Godb.

212, 213.

1 Brownl. 64.

Plowd. 68. b.
Moor 856, 857.
Ley 75, 79.
(e) 1 Co.112.b.
174. a. Co. Lit.

237.a.Hob.337,

338. Moor 605. Rol. Rep.337.

2

496. Winch 65.

(a) Co. Ent. 676. b. nu. 19.

Cro. El. 444,

445. Lane 45. Upton and

Basset's Case.

Plow. 46. b. 55.

afterwards bargains and sells the lands to another for a valuable consideration, the bargainee shall enjoy the land, for as to him, the fine, feoffment, or other conveyances by which the condition was extinct, was void by the said act; and so the first clause, by which all fraudulent and covenous conveyances are made void as to purchasers, extend to the last clause of the act, scil., when he who makes the bargain and sale had power of revocation. And it was said, that the statute of Eliz. hath made voluntary estates made with power of revocation as to purchasing in equal degree with conveyances made by fraud and covin to defraud purchasers. Between (a) Upton and Basset in trespass, Trin. 37 Eliz. in the Common Pleas, it was adjudged, that if a man makes a lease for years by fraud and covin, and afterwards makes another lease boná fide, but without fine or rent reserved, that the second lease should not avoid the first lease.

For first it was agreed, that by the common law an estate made by fraud should be avoided only by him who had a former right, title, interest, debt or demand, as by 33 H. 6, a (6) Antea 78.b. sale in open (b) market by covin shall not bar a right which is more ancient: nor a covenous gift shall not defeat execu*tion in respect of a former debt, as it is agreed in 22 Ass. 72; but he who hath right, title, interest, debt or demand more puisne shall not avoid a gift or estate precedent by fraud by the common law.

a. Fitz. Replic.

15. Br. Trespass 26. Br. Collusion 4.

Br. Property 6.
2 Inst. 713.
14 H 8. 8. b.
33 H. 6. 5. a. b.

(c) Cro. El. 445.

2. It was resolved, that no purchaser should avoid a precedent conveyance made by fraud and covin, but he who is a (c) purchaser for money or other valuable consideration, for although in the preamble it is said (for money or other good consideration), and likewise in the body of the act (for money or other good consideration), yet these words (good consideration) are to be intended only of valuable consideration, and that appears by the clause which concerns those who had power of revocation, for there it is said, for money or other consideration paid or given, and this (paid) is to be referred to (money), and (given) is to be referred to (good consideration), so the sense is for money paid, or other good consideration given, which words exclude all consideration of nature or blood, or the like, and are

to be intended only of valuable considerations which may be given; and therefore he who makes a purchase of land for a valuable consideration, is only a purchaser within the statute. And this latter clause doth well expound these words (other good consideration), mentioned before in the preamble and body of the act.

Nedham and

And so it was resolved, Pasch. 32 Eliz., in a case referred out of the Chancery to the consideration of Wyndham and Periam, Justices: between John Nedham plaintiff, and 1 And. 233. Beaumont, Serjeant-at-law, defendant; where the case Beaumont's was, Hen. Babington seised in fee of the manor of Lit- Case. Church, in the county of Derby, by indenture, 10 Feb. 8 Eliz. covenanted with the Lord Darcy, for the advancement of such heirs males, as well those he had begot, as those he should afterwards beget on the body of Mary then his wife (sister to the said Lord Darcy), before the feast of St. John Baptist then next following, to levy a fine of the said manor to the use of the said Henry for his life, and afterwards to the use of the eldest issue male of the bodies of the said Henry and Mary begotten, in tail, &c., and so to three issues of their bodies, &c., with the remainder to his right heirs. And afterwards, 8 Maii, ann. 8 Eliz., Henry Babington, by fraud and covin, to defeat the said covenant, made a lease of the said manor for a great number of years, to Robert

Heys; and afterwards levied the fine accordingly and on conference had with the other Justices, it was resolved, that although the issue was a purchaser, yet he was not a purchaser in vulgar and common intendment: also consideration of blood, natural affection, is a good consideration, but not such a good consideration which is intended by the statute of Eliz., for (a) a valuable consideration is only a (a) 2 Roll. Rep. good consideration within that act. In this case, Anderson, 305, 306.

C. J., of the Common Pleas, said, that a man who was of

small understanding, and not able to (b) govern the lands (6) Cro.El.445. which descended to him, and being given to riot and disorder, by mediation of his friends, openly conveyed his lands to them, on trust and confidence that he should take the profits for his maintenance, and that he should not have power to waste and consume the same; and afterwards, he

being seduced by deceitful and covenous persons, for a small sum of money bargained and sold his land, being of a great value : this bargain, although it was for money, was (a) Cro.El.445. holden to be (a) out of this statute, for this act is made against all fraud and deceit, and doth not help any purchaser, who doth not come to the land for a good consideration lawfully and without fraud or deceit; and such conveyance made on trust is void as to him who purchases the land for a valuable consideration bona fide, without deceit or cunning.

And by the judgment of the whole court Twyne was convicted of fraud, and he and all the others of a riot.