If a man about to be married is largely indebted, and a relation comes forward and pays off his debts in order to enable him to gain the consent of the parents of the lady to the match, and at the same time takes a bond from the lady and her intended husband to pay him a certain sum within a specified period from the celebration of the nuptials, the bond is a fraud upon the parents, whose consent would not have been obtained had they known of its existence, and the husband and wife are consequently entitled, after the marriage, to set it aside, although they were both parties to the fraud. (d)

66

Joseph Montefiori, a Jew, being engaged in a treaty of marriage, his brother Moses, to assist him in his designs, and represent him as a man of fortune, gave him a note for a large sum of money as the balance of accounts between them, which balance he (Moses) acknowledged to have in his hands, though in truth no such balance nor anything like it existed. After the marriage had been celebrated, Moses reclaimed the note as having been given without consideration, and the matter was referred to arbitration. The arbitrators awarded that the note should be delivered up, which Joseph refused to do, and the matter having been brought before the Court of Queen's Bench, that court determined that the award was wrong, and set it aside, declaring that Joseph was entitled to the note, that Moses was bound by his acknowledgment and promise, and should not be permitted to set up his own fraud in his defence, although his brother was in collusion with him. "The law," observes Lord Mansfield,

is, that where, upon proposals of marriage, third persons represent anything material in a light different from the truth, even though it be by collusion with the husband, they shall be bound to make good the thing in the manner in which they represented it. It shall be as represented to be; for no man shall set up his own iniquity as a defence." (e)

Upon the same principle, creditors who conceal wholly or in part debts due to them from a man about to be married, and represent that he is not indebted, or is only indebted to them to a certain amount in order to serve the turn of their debtor and get the parents of the woman to consent to the marriage, will be bound by such fraudulent representations, and will be barred from all remedy for obtaining payment thereof, just as effectually as if they had executed a release under seal. (ƒ) The principle on which all these cases have been decided is that good faith in matters relating to the contract of marriage, is so essential to the happiness both of parents and children,

(d) Redman v. Redman, 1 Vern. 347.

(e) Lord Mansfield, C. J., Montefiori v. Montefiori, 1 W. Bl. 363.

(f) Neville v. Wilkinson, 1 Br. Ch. C. 543. Eastabrooke v. Scott, 3 Ves. 460; 16 Ves. 125.

that whoever treats fraudulently on such an occasion shall not only not gain, but lose by it. (g)

Ante-nuptial settlements.-As soon as a woman is married, her power of disposition over her own property and fortune, independently of the husband, is gone; she cannot sell, grant, or convey it away without his consent, and all her arrangements respecting it are subject to his superior control and direction. If, therefore, a woman, intending to be married, wishes to preserve her own fortune, or any portion of it, free from the dominion of the husband, she must make a settlement of it prior to the marriage. (h) The law permits a woman, before her marriage, to convey her property to trustees to be holden by them for her separate use after marriage. If she is in trade, she may convey all her stock in trade and furniture to trustees to enable her to carry on the business separately from the husband, and if the latter do not intermeddle with the business, the stock in trade and furniture will not be liable to be seized for the debts of the husband. (i)

If a woman is engaged to be married at the time she proceeds to make a settlement of her property upon herself, she must give notice of her intention to make the settlement to her intended husband, to give him an opportunity of withdrawing from the engagement in case he disapproves of her arrangements. If she neglects so to do, the settlement will in general be considered to have been made in fraud of his marital rights, and will not be binding upon him after the celebration of the nuptials. The Court of Chancery will in general set aside such a settlement, and give the husband the same control over the property as if it had never been executed. (k) In the exercise of this stringent and arbitrary power, the court does not, it has been said, regard the scope or object of the settlement, its providence or improvidence, but looks only at what is called the deception practised on the husband. Thus, a settlement made by a widow of certain property, upon the children of a former marriage, during the pendency of a treaty for a second marriage, has been considered fraudulent and void as against the second husband, if he was not informed of the circumstance prior to the cele

(g) The Lord Chancellor, 1 Br. Ch. C. 547. (h) So by the French law, En Traité du Mariage, et avant la foi baillée, et benediction nuptiale, homme et femme peuvent faire, et apposer telles conditions douaires donations et autres conventions que bon leur semblera. Il n'est plus permis apres la celebration du mariage de faire aucunes conventions matrimoniales. Poth. No.

(i) Jarman v. Woolloton, 3 T. R. 618. Haslinton v. Gill, 3 Doug. 415; 3 T. R. 620, Dean v. Brown, 8 D. & R. 95; 5 B. & C.

n.

336.

(k) England v. Downs, 2 Beav. 522. Carleton v. Earl of Dorset, 2 Vern. 17. Goddard v. Snow, 1 Russ. 485. Howard v. Hooker, 2 Ch. R. 42.

bration of the nuptials. (1) But the opinion and dicta upon this point cannot, it is apprehended, be supported to this extent. If there has been no practised or intentional concealment; if the widow has done nothing more than make a fair and reasonable provision for her children, such as every mother in her situation would morally be bound to make, it is impossible to say that there is any fraud in the casc, or that the husband can in foro conscientiæ be entitled to upset the settlement. She may have derived the property from her late husband; it may have been bequeathed to her by him in the full confidence that she would employ it for the support and maintenance of his and her children, and if that be so, she acts only in the execution of the most sacred of all trusts when she attempts to secure it to their use free from the dominion of the intended second husband. "It is not every alienation of the wife's property, during the treaty of marriage, which can be regarded as fraudulent, because the husband was not a party to it. There is no implied contract on her part, during the treaty of marriage, that her property as it existed at the time of the commencement of the treaty should suffer no diminution."(m) If the husband has made no inquiries upon the subject before marriage, and has been misled by no false statements and assertions, there is in truth no deception or fraud practised upon him at all, and he has not the slightest ground, in conscience or equity, to set aside the settlement. (n)

If the settlement has been made prior to the treaty of marriage, there is then of course no ground for impeaching it. And if, during the betrothment, the woman announces her intention of making the settlement to her intended husband so as to give him an opportunity of withdrawing from his promise of marriage, and the nuptials are celebrated, the settlement will stand good, as there is not then the slightest pretence for saying that there has been any fraud or deception in the matter. (o) And a husband has no right to disturb a secret settlement made by the wife pending the treaty for the marriage, provided he has by his conduct before marriage, put it out of the power of the wife effectually to make any stipulation for the settlement of her property, by rendering retirement from the marriage on her part impossible. Thus, where a man seduced a girl during the betrothment, and brought her to his house to cohabit with him before marriage, and the girl during the cohabitation made a settlement of

her own fortune to the separate use of herself for life, with remainder to her children in equal shares, to the exclusion of any future husband, and was subsequently married to the man with whom she had cohabited, the court refused to set aside the settlement, saying that the woman committed no fraud upon the husband, if when placed under such circumstances, she took the only means she had left her of protecting herself. (p)

The property intended to be settled upon one or both of the parties to the marriage generally consists of freehold or leasehold property, or money in the funds, and it is, prior to the marriage, conveyed to trustees to be holden by them either for the separate use of the wife, free from the control of the husband, or for the use of the husband and wife jointly, and subsequently of the children of the marriage, with ultimate limitations and provisions, in case there should be no issue. All ante-nuptial settlements made bona fide in contemplation of the marriage, are good both against the husband and his creditors, and all subsequent purchasers of the property settled. (9) Therefore, whenever it is wished to secure a provision for the wife and children which shall remain unaffected by the subsequent insolvency of the husband, the arrangements should be made before marriage, as great difficulties are likely to interpose themselves in the way of an effectual settlement after marriage.

If a general power of revocation is contained in a settlement of realty, or if the exercise of a power of revocation is made to depend upon the consent of persons who are under the influence and control of the husband, the settlement cannot be supported against the creditors of the husband, nor against subsequent purchasers; (r) but if the exercise of the power is made to depend upon the consent of disinterested third parties, the settlement will be upheld. (s) If the husband reserves to himself the power of charging the land to "the full value," this reservation is tantamount to a general power of revocation, and invalidates the settlement.() But powers to sell and exchange lands, and re-invest monies and securities with the consent of trustees, and the usual powers of charging lands to a moderate amount, given bona fide, will not of course defeat the settlement. (u)

Post-nuptial settlements.-A settlement by the husband, after marriage, of property to the use of his wife and the children of the marriage, will not

(p) Taylor v. Pugh, 1 Hare, 608, 616. (2) Campion v. Cotton, 17 Ves. 263.

(r) 27 Eliz.ch. 4, s. 5. St. Saviour's case, Lane, 21, 22. Lavender v. Blakstone, 2 Lev. 146.

(s) Buller v. Waterhouse, 3 Keb. 751.

(t) Tarback v. Marbury, 2 Vern. 510. (u) Jenkins v. Keymis, 1 Lev. 150; 1 Rop. 302, &c. Sugden on Powers.

prevail over the claims of subsequent PURCHASERS of such property, unless it has been made pursuant to an agreement entered into with the wife, or her guardians, prior to the marriage. If the husband, for example, covenants to stand seised of realty to the use of himself for life, with remainder to the use of his wife, for life, with ultimate limitations in favour of his children, and then sells the estate, the covenant will be fraudulent and void as against the purchaser, although the latter had express NOTICE of the covenant at the time he bought the property. And the same result follows from a conveyance to trustees of property to be holden by them for the use of the wife and children of the marriage, and a subsequent sale by the husband of the same property to a third party with full notice of such settlement. The purchaser's title, under such circumstances, is considered superior to the title of the trustees, the conveyance to them being considered fraudulent and void under the statute of Elizabeth, notwithstanding the purchaser's knowledge of such conveyance at the time he bought and accepted the subsequent conveyance of the same property from the husband. (x) "I have great difficulty," observes the Master of the Rolls, (Sir William Grant,) "to persuade myself that the words of the statute warranted, or that the purpose of it required such a construction, for it is not easy to conceive how a purchaser can be defrauded by a settlement of which he has notice before he makes his purchase. But it is essential to the security of property that the rule should be adhered to when settled, whatever doubt there may be as to the grounds on which it originally stood." (y)

The validity of a post-nuptial settlement as against CREDITORS of the late husband, depends upon the solvency or insolvency of the latter, at the time the settlement was executed. If he was then largely indebted, the circumstance of his withdrawing property which ought in justice to be applied in liquidation of his debts from his own control, and placing it in the hands of persons who are to hold it for the benefit of his wife and children, and indirectly for his own benefit, is of itself a strong badge of fraud, and will not be permitted to prevail over the just claims of creditors. (2) "If there is a voluntary conveyance of real estate, or chattel interest, by one not indebted at the time, though he afterwards become indebted, if that voluntary conveyance was for a child, and no particular

(x) 27 Eliz. c. 4. Gooch's case, 5 Co. 60, a. Evelyn v Templar, 2_Br. C. C. 148. Doe d. Otley v. Manning, 9 East, 59. Pulvertoft v. Pulvertoft, 18 Ves. 84. Sugden on Vendors and Purchasers, vol. 3, p. 278.

(y) Buckle v. Mitchell, 18 Ves. 110. Johnson

v. Legard, 6 M. & S. 60.

(2) Stat. 13 Eliz. c. 5; 1 Atk. 15. Ld. Teynham v. Mullins, 1 Mod. 119. Kidney v. Coussmaker, 12 Ves. 155. Lush v. Wilkinson, 5 Ves. 384.