SECTION 8.

SETTLEMENT.

Settlement is another incident of title to which reference should be made.

Settlements by Infants.-Persons who are competent to sell their property are competent to settle it (z), and further than this, infants, though not able to sell their property, can, under certain circumstances, make a valid settlement of it; for it is provided by the Infants Settlement Act, 1855 (a), that every infant not under twenty if a male, and not under seventeen if a female, may make a binding settlement on his or her marriage, with the sanction of the Court of Chancery; though should a disentailing assurance have been executed by an infant tenant in tail under the provisions of the Act, and the infant should afterwards die under age, the disentailing assurance would thereupon become void (b).

Under the Infants Settlement Act an infant can bind by the settlement a mere spes successionis in property (c); but a voluntary assignment of a spes successionis is void even when made by deed.

With regard to post-nuptial settlements, it should be remembered that the Act, although it removes the disability of infancy, does not remove the disability of coverture (d).

(2) Atherley on Settlements, 11.

(a) 18 & 19 Vict. c. 43.

(b) Ibid., s. 2; In re Scott, [1891] 1 Ch. 298.

(c) Re Johnson, [1891], 3 Ch. 48.

(d) Seaton v. Seaton (1888), 13 App. Cas. 61.

A settlement made by a male infant, or a settlement of real property by a female infant, if not confirmed by the court, is voidable on the infant coming of age; but repudiation must be made within a reasonable time (e). Before the Married Women's Property Act, 1882, the settlement by a female infant on her marriage of personalty (other than personalty limited to her separate use) was regarded as a limitation by her husband of his marital rights, and was therefore binding (f); and by a strained construction put upon s. 19 of that Act this is still the law with regard to settlements made before January 1st, 1908 (g).

With regard, however, to marriage settlements made after January 1st, 1908, the settlement is not binding (even as regards personalty) unless executed by the wife (if she is of full age) or confirmed by her after she attains full age, or unless the wife dies an infant (h). When the intended wife is of full age and executes the settlement, it has been held that a covenant by the husband alone that the after-acquired property of the wife shall be settled, not saying by whom, is binding on such property, whether real or personal (i); and there is nothing in the new Act which affects this decision. Nor apparently does the new Act affect the decision in Hancock v. Hancock (k), viz., that a covenant by the husband that he will

(e) Edwards v. Carter, [1893] A. C. 360.

(f) Simson v. Jones (1831), 2 Russ. & M. 365.
(g) Stevens v. Trevor-Garrick, [1893] 2 Ch. 307.
(h) 7 Edw. 7, c. 18, s. 2.

(i) Re Haden, [1898] 2 Ch. 220.

(k) (1888), 38 Ch. D. 78.

settle the wife's after-acquired personalty is effectual if the wife is adult and a party to the settlement.

Marriage Consideration.-Marriage is a valuable consideration, and a settlement made previously to and in consideration of marriage will, so far as concerns the interests of those whose claims are within the marriage consideration (viz., the husband and wife and their issue), be supported against both purchasers and creditors; and a settlement, though made after marriage, if made in accordance with articles executed previously to marriage, or of a covenant to bring in after-acquired property (1), or even in pursuance of a parol ante-nuptial contract recited in the settlement is not voluntary (m). Nor is a post-nuptial settlement voluntary if made for any valuable consideration other than marriage, such as the payment of a portion; a covenant to indemnify the settlor against charges on the estate settled (n); or the advance of a sum of money to pay outstanding charges on the property (o). The making of a settlement in consideration of marriage is, by the Bankruptcy Act, 1883, declared fraudulent in case the settlor is not at the time of the making thereof able to pay his debts without the aid of the property comprised therein; and if the settlor should

(1) A covenant to bring in all after-acquired property except business assets is not too vague to be enforced, and is not released by the bankruptcy of the covenantor (In re Reis, [1904] 2 K. B. 769).

(m) In re Holland, [1902] 2 Ch. 360.

(n) Townend v. Toker (1866), L. R. 1 Ch. 446; Price v. Jenkins (1877), 5 Ch. D. 619.

(0) Bayspoole v. Collins (1871), L. R. 6 Ch. 228.

become bankrupt, or compounds with his creditors, and it appears to the court that such settlement was made to defeat or delay creditors, or was unjustifiable, having regard to the settlor's affairs, his discharge may be suspended or refused, or the court may refuse to approve a composition or arrangement. These provisions, however, do not appear to render the settlement itself void or voidable. A settlement, not made for a valuable consideration, is a voluntary settlement, and as such is liable to be defeated by creditors or bonâ fide purchasers for valuable consideration in certain events presently referred to; and trusts in a settlement made in contemplation of marriage in favour of the children of a future marriage or of collaterals are purely voluntary (p).

AS TO SETTLEMENTS LIABLE TO BE DEFEATED BY THE CREDITORS OF THE SETTLOR.

I. Under 13 Eliz.-By statute 13 Eliz. c. 5, the gift or alienation of any lands, tenements, or hereditaments, goods and chattels, made for delaying, hindering, or defrauding creditors, is made void as against such creditors, unless made upon good consideration and bonâ fide to a person not having at the time notice of such fraud.

The term "good consideration" in the statute means valuable, such as money or marriage, and does not include a meritorious consideration, as for love and affection (9).

(p) Wollaston v. Tribe (1869), L. R. 9 Eq. 44.
(9) Copis v. Middleton (1817), 2 Madd. 430.

A bonâ fide purchaser of any interest under the deed impeached is protected, whether such interest be legal or equitable (r).

The mere circumstance of a settlement being a voluntary one will not, except in cases coming within s. 47 of the Bankruptcy Act, 1883 (s), render it void under the statute, if its object be not to defeat or delay creditors (t). It has been doubted whether it is necessary to prove an actual intent to defeat creditors in order to upset a settlement under the statute of Elizabeth (u). The better opinion, however, appears to be that in order to reach a settlement under this statute it must be shown that the conveyance was of the whole, or substantially the whole, of the debtor's property, and that the assignees had notice that he was cheating his creditors (x).

II. Under s. 4 of the Bankruptcy Act.-By s. 4 (1) (b) of the Bankruptcy Act, 1883, it is enacted that a debtor commits an act of bankruptcy if in England or elsewhere he makes a fraudulent conveyance, gift, delivery, or transfer of his property or any part thereof. The effect of this is, that if a bankruptcy petition is presented within three months of this fraudulent conveyance, and the debtor is eventually

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(r) Halifax Joint Stock Banking Co. v. Gledhill, [1891] 1 Ch.

(8) 46 & 47 Vict. c. 52.

(t) In re Lane-Fox, [1900] 2 Q. B. 508.

(u) Freeman v. Pope (1870), 5 Ch. 538.

(x) Ex parte Mercer (1886), 17 Q. B. D. 290; Godfrey v. Poole (1888), 13 App. Cas., at p. 503; Re Poppleton and Jones' Contract (1896), 74 L. T. 582; In re Carl Hirth, [1899] 1 Q. B.