Trusts in favour of the children of a future marriage are voluntary (†), unless such trusts are interposed between the limitations to the sons and the limitations to the daughters of the first marriage (u).

So, limitations in a settlement of the wife's lands in default of children, in favour of her brothers and sisters are voluntary (x), or in favour of her niece (y). What act is sufficient consideration to support a limitation to younger brothers in a marriage settlement, see (); but limitations to collaterals may be supported if there be any party to the settlement who purchases on their behalf (a).

A voluntary settlement with an ultimate limitation to collaterals is binding on the settlor, and cannot be set aside (b), and an ultimate limitation to the next of kin of the settlor, a married woman, was, although there was no possibility of issue, held irrevocable, so that the husband and wife could not deal with the corpus of the settled property (c).

A purchase for value without notice from a fraudulent grantee is valid (d).

(5.) Who are purchasers within the statute.

Persons claiming under ante-nuptial settlements are purchasers(e); so if under post-nuptial settlements made in consideration of antenuptial articles, or of an additional portion (ƒ).

An equitable purchaser is within the statute (g), and a mortgagee is a purchaser pro tanto within it (), as also an equitable mortgagee (i), and a mortgagee by deposit of title deeds (k), although the contrary was held at law (7): also the purchaser under a settlement made in consideration of an intended marriage (m);

(t) Wollaston v. Tribe, 9 Eq. 44, M. R. (u) Clayton v. Earl of Wilton, 3 Mad. 302 n.; 6 M. & S. 67 n.; Re Cullin, 14 Ir. Ch. 506.

(x) Cotterell v. Homer, 13 Sim. 506. (y) Smith v. Cherrill, 4 Eq. 390, V. C. Malins.

(z) Roe v. Mitton, 2 Wils. 356. See Johnson v. Legard, 2 Mad. 283; T. & R. 295; Stackpoole v. S. 4 Dr. & W. 326.

(a) Heap v. Tonge, 9 Ha. 90; Pulvertoft v. P. 18 Ves. 92.

(b) Anderson v. Dawson, 15 Ves. 532; Hanson v. Miller, 14 Sim. 22; 8 Jur. 209; Bill v. Cureton, 2 My. & K. 503. (c) Paul v. P. 20 Ch. D. 742, C. A. ;

overruling V. C. Malins, 15 ib. 580.
(d) Doe v. Martyr, 1 B. & P. N. R. 332.
(e) Kirk v. Clark, Prec. in Ch. 275.
(f) Brown v. Jones, 1 Atk. 190.
(g) Barton v. Vanheythusen, 11 Ha.
126; 18 Jur. 344.

(h) Chapman v. Emery, Cowp. 278; White v. Hussey, Prec. in Ch. 13; Lister v. Turner, 5 Ha. 281; Lloyd v. Attwood, 3 De G. & J. 614.

(i) Lloyd v. Attwood, sup.

(k) Lister v. Turner, sup. ; Ede v. Knowles, 2 Y. & C. C. C. 172.

(1) Kerrison v. Dorrien, 9 Bing. 76; Holford v. H. 1 Ch. C. 217.

(m) Douglas v. Ward, 1 Ch. Ca. 79.

so a person who releases a contested right in consideration of the conveyance to him ("), also lessees at rack rent (o); but a lessee without fine or rent is not (p).

aside fraudu

The subsequent purchaser or mortgagee can recover in an action Ejectment by purchaser. for land (as he could formerly by ejectment) against the volunteers (2), and he may bring an action to complete his purchase or Suit to set mortgage and set aside the voluntary deed. The volunteer is a lent settleproper party to a suit by the purchaser or mortgagee to set the ments. voluntary deed aside (»), but the volunteer has no equity to the purchase-money (s). And even if the sale is effected under a power contained in the voluntary settlement, the purchaser can safely pay the vendor the purchase-money, although, by the settlement, they ought to be held upon the trusts of the settlement (†). The purchaser or mortgagee cannot require the voluntary settlement to be delivered up to be cancelled (u).

The settlor is himself bound by the settlement, and cannot bring an action to compel the purchaser to complete the contract (x), unless the defendant is a willing purchaser (y). Nor can the purchaser or mortgagee obtain relief in a suit instituted to set aside the settlement by himself and the settlor as co-plaintiffs (z).

The volunteer may however shew, by evidence of the inadequacy of the consideration, that the purchase was colourable (9). And the declarations of the mortgagor are not admissible after his death, to prove payment of the mortgage money against the parties claiming under the settlement (a).

creditor.

A judgment creditor is not a purchaser within the statute (b), Judgment for he cannot be said to be one who gives money or other valuable consideration in order to have the land (c).

69.

The husband of a volunteer cannot on his marriage be treated as

(n) Hill v. Bishop of Exeter, 2 Taunt.

(0) Goodright v. Moses, 2 W. Bl. 1021.
(p) Upton v. Bassett, Cro. Eliz. 444.
(a) Doe v. James, 16 East, 212.
(r) Townend v. Toker, 1 Ch. 446.
(s) Ib.; Daking v. Whimper, 26 Beav.

568.

(t) Evelyn v. Templar, 2 Bro. C. C. 148.

(u) De Hoghten v. Money, 35 Beav. 98; 1 Eq. 154; affirmed, 2 Ch. 164.

(x) Clarke v. Willott, 7 Exc. 313; Smith v. Garland, 2 Mer. 123. See

Ayerst v. Jenkins, 16 Eq. 275, Lord
Selborne.

(y) Peter v. Nicolls, 11 Eq. 391, V. C.
Stuart.

(z) Bill v. Cureton, sup.

(a) Doe v. Webber, 1 A. & E. 733.

(b) Beavan v. Lord Oxford, 6 De G. M. & G. 507; 2 Jur. N. S. 121; Dolphin v. Aylward, 4 L. R. H. L. 486; overruling Garth v. Ersfield, Bridg. 22; Girling v. Lowther, 2 Rep. in Ch. 136. See Barton v. Vanheythusen, 11 Ha. 131; 18 Jur. 346.

a purchaser under the statute (d): nor is a person claiming under a post-nuptial settlement, unless made in pursuance of articles which were entered into before the marriage (e) and are binding (f).

(6.) Purchaser from heir or devisee not within statute.

The heir-at-law or devisee of the settlor cannot avoid the deed by a mortgage or conveyance for value (g).

(7.) Generally.

Where a fraudulent conveyance is made to a man who makes a mortgage bona fide, and the conveyance is set aside by the creditors of the grantor, the title of the mortgagee is paramount to that of the creditors (h).

A voluntary grantee has, against all other persons except a purchaser for value, a complete estate, and can set aside a previous voidable conveyance (i).

The existence of a voluntary settlement on the title is not a valid objection (k).

(d) Collins v. Burton, 5 Jur. N. S. 952, V. C. Stuart; reversed on other points, ib. 1113; 4 De G. & J. 612; Doe v. Lewis, 11 C. B. 1035; 15 Jur. 512; 20 L. J. C. P. 177.

(e) Martin v. Seamore, 1 Ch. Ca. 170. (f) Doe v. Rowe, Bing. N. C. 737. See Trowell v. Shenton, 8 Ch. D. 318.

(g) Parker v. Carter, Ha. 409; Doe v. Lewis, sup. ; Doe v. Rusham, 16 Jur.

359, Q. B.; Lewis v. Rees, 3 K. & J. 132; 3 Jur. N. S. 12; explaining Burrel's Case, 6 Rep. 72, and observing on Jones v. Whitaker, 1 Long. & Town. 141.

(h) Major v. Ward, 5 Ha. 598.

(i) Dickinson v. Burrell, 35 Beav. 257; 1 Eq. 337.

(k) Butterfield v. Heath, 15 Beav. 408; 22 L. J. Ch. 270; Clarke v. Willott, 7 Ex. 313.

laws.

THERE are many cases, particularly of voluntary preference, Voluntary preferences which, although not falling within the letter, have been held void within spirit as a fraud upon or an evasion of the bankruptcy laws (a). The of bankrupt Court of Bankruptcy, it is said, has gone behind the code of laws established by parliament in adopting principles previously established (b). Thus a voluntary preference on the eve of bankruptcy, although not void as an act of bankruptcy to which the trustees' title could relate as the adjudication was on the bankrupt's own petition, is void as against the spirit of the bankrupt laws (c). So a payment or security to any particular class of creditors, as the Stock Exchange creditors of a member thereof, is fraudulent (d); and a sale to an execution creditor to avoid a sale by the sheriff (e); and it has been contended that the fraudulent preference, although

Voluntary assignments by insolvents

under old law.

it may have occurred previous to the three months prescribed in B. A. 1869, s. 92 (ƒ), was void, if not as a fraudulent transfer within B. A. 1869, s. 6, sub-s. 2, still under the old unenacted law of fraudulent preference (g); but these cases can scarcely be reconciled with another class of cases (h).

Under former bankrupt Acts, a voluntary assignment by a person in insolvent circumstances of all his effects for the benefit of any creditor in particular or his creditors generally, if made within three months before the imprisonment, or if made at any time with the intention of taking the benefit of the Act, or if made after the imprisonment had begun, was void against the assignees under 7 Geo. IV. c. 57, s. 32, and 1 & 2 Vict. c. 110, s. 59 (i), and the Acts seemed to apply equally to such an assignment of part of his effects; and a warrant of attorney for the express purpose of entering up immediate judgment and in contemplation of insolvency, was a charge within these sections (); but 7 Geo. IV. c. 57 has expired, and 1 & 2 Vict. c. 110, s. 59 has been repealed, and fraudulent or voluntary preferences are now regulated by B. A. 1883, s. 48; inf. p. 602, which creates little difference.

The following decisions were made under the old Acts, but are still useful as a guide in construing the clause against acts of preference which are declared void by the present Act. An assignment or payment by an insolvent was not voluntary, if made for a bona fide consideration (1); or under pressure on the part of the creditor (m); or even without pressure or threat, if there were a bona fide demand on the part of the creditor (n); if, in fact, anything were done by the creditor to interfere with or control the debtor's will (o); and the circumstance of the grantor being the grantee's solicitor made no difference in this respect (p). Though the debtor may have desired to favour the

(f) Inf. p. 602.

(g) 1 Sm. L. C. 33, ed. 8. See Exp. Norton, 16 Eq. 404, C. J. Bacon, as opposed to Exp. Pearson, 8 Ch. 673.

(h) Allen v. Bonnett, 5 Ch. 576; Alton v. Harrison, 4 L. R. Ch. 622; inf. p. 596 (k).

(i) Binns v. Towsey, 7 A. & E. 869; Becke v. Smith, 2 M. & W. 191; Thompson v. Jackson, 4 Scott, N. R. 234; 3 Man. & G. 621; overruling in part Davies v. Acocks, 2 C. M. & R. 461.

(k) Sharpe v. Thomas, 6 Bing. 416; Thorpe v. Eyre, 1 A. & E. 926.

(1) Arnell v. Bean, 8 Bing. 87. (m) Davies v. Acocks, sup.; Knight v. Ferguson, 5 M. & W. 389.

(n) Mogg v. Baker, 4 ib. 348; Reynard v. Robinson, 9 Bing. 717; Belcher v. Prittie, 10 ib. 408; Van Casteel v. Booker, 2 Exc. 691; Ogg v. Shuter, 10 L. R. C. P. 165.

(0) Vacher v. Cocks, 1 B. & Ad. 152; Strachan v. Barton, 11 Exc. 650; Johnson v. Fesemeyer, 3 De G. & Jo. 13; affirming 25 Beav. 88; London and County Bank, 16 Eq. 391, C. J. Bacon. (p) Johnson v. Fesemeyer, sup.