Clarke and Others, Representatives of Dickenson, Deceased v Wright
| Jurisdiction | England & Wales |
| Judgment Date | 08 February 1861 |
| Date | 08 February 1861 |
| Court | Exchequer |
English Reports Citation: 158 E.R. 350
IN THE EXCHEQUER CHAMBER APPEAL FROM THE COURT OF EXCHEQUER
S C. 30 L J. Ex 113; 7 Jur. (N. S) 1032; 9 W. R. 571; 4 L. T. 21. Not applied, In re Browne's Estate, 1862, 13 Ir Ch. R 283; Smith v Cherril 1867, L R 4 Eq 396. Commented on, Price v. Jenkins, 1876, 4 Ch. D. 490 reversed on another ground 5 Ch. D. 619; In re Cameron and Wells, 1887, 37 Ch. D. 37. Distinguished, In re D'Angibau; Andrews v. Andrews, 1880, 15 Ch. D. 242. Dissented from, De Mastre v. West, [1891] A. C. 264. Referred to, In re Cullin's Estate, 1864, 14 Ir. Ch. R. 506; Gale v. Gale, 1877, 6 Ch. D. 150, Tucker v. Bennett, 1887, 38 Ch D 11, Godfrey v. Poole, 1888, 13 A. C 504, Attorney-General v Lord Rathdonnell, 1893, 32 L R. Ir. 590, Attorney-General v. Jacobs-Smith, [189] 2 Q B 349
in the exchequer chamber (Appeal from the Comt of Exchequer ) clarke and otherk, .Representatives of Dickenson, Deceased v wright. Feb. 8, 1861.-D., a widow, being possessed of certain leal pioperty, by settlement in contemplation of her marriage, dated the 17th May, 1830, reciting that, upon the treaty for the marriage, it was agieed that her property should be appointed, released and conveyed as thereinafter mentioned, limited the property to tmstees in trust for herself for life, with remainder, as to part, to her husband for life, remainder to the use of her illegitimate sonr the plaintiff', in fee, and as to the residue, to the plaintiff in fee in case he should attain the age of twenty-one years, &c. She and her husband subsequently moitgaged the property. In ejectmenfe by the plaintiff against a person claiming title under the mortgagee, it was proved that 111 October, 1830, the husband and wife let the property to T., and received the rents of it fot some yecirs The plaintiff gave secondary evidence ef the above settlement, which was afterwards put in by the defendant Held, in the Exchequer Chamber (affirming the judgment of the Court of Exchequer): First, that the limitation m the marriage settlement to the plaintiff, tiough a bastard, was not fraudulent and void as against the moitgagee by the 37 Eliz. c. 4 Dissentiente Williams, J.-Per Cockburn, C J , and Wightman, J. Because although the limitation in the mamage settlement to the illegitimate son of the wife, being the settlor, could not be deemed within the consideration of the naarrBge and was therefore voluntary, yet the case came within the principle 6H. *H.8W, CLARKE 1'. WRIGBT 351 of the exception engrafted upon the rule, viz that a pi ovision in a marriage settlement in favour uf existing children cannot be deemed fraudulent within the statute 27 EH c. 4.-Per Blackburn, J Because the limitation so inteifered with those which would naturally be made in favoui of the husband, wife and issue, that it must be presumed to have been agreed upon by all parties as part of the mainage bargain that the estate should be so settled.-Secondly that there was evidence of the seisin of D. at the time of the execution of the settlement: Per totam Curiam. [S G 30 L J. Ex 113 ; 7 Jur. (N. S ) 1032 ; 9 W. R. 571 ; 4 L. T. 21. Not applied, In re Br&iwt^s Estate, 1862, 13 Ir Ch. R 283 ; Smith v L'henM, 1807, L R 4 Eq 396. Commented on, Price \. Jenkins, 1876, 4 Ch. D. 490 reversed on another ground 5 Ch. D. 619 ; Ime Cameion and Wells, 1887, 37 Ch. D. 37. Distinguished, In, re B'Angtiau; Andieus v. Andiews, 1880, 15 Ch. D. 242. Dissented fiom, De Mtstre v. Wtd, [1891] A. C. 264. Referred to, In ie Uulhn's Estate, 1864, 14 Ir. Ch. R. 506; Gale v. Gale, 1877, 6 Ch. D. 150, Tvdcei \. Bennett, 1887, 38 Ch D 11, Galfiey v. Pooh, 1888, 13 A. C 504 , Attorney-General v Lard Rathdonnell, 1893, 32 L R, Ir. 590 , Attorney-General v. Jacobt-Suut/i, [1895J 2 Q B 349 ] This was an appeal by the defendant against the decision of the Court of Exchequer in discharging a rule to enter a [850] nonsuit, or for a new trial It appeared that the plaintiff in the first instance gave secondary evidence of the settlement which was afterwards pat in by the defendant In other respects the facts of the case fully appear in the report, 5 H. & N 401. W. T Dickenson, the plaintiff, having died since the trial, the above mentioned claimants were made parties by suggestion. Mellor (Field with, him), argued for the defendant.(a) The tiist question is whether a limitation in a marriage settlement to the use of an illegitimate sou of the settlor, is voluntary, and therefore fraudulent and void, by the 27 Ehz c. 4, as against a mortgagee who is a purchaser, within the meaning of that Act. In order to render a settlement void as against creditors, it is necessary to shew that it was not bona tide, or that the settlor was in debt at the time he made it Therefore a settlement may be good as against a creditor, though not good as against a purchaser for valuable consideration. For a long time it was thought that the question whether a settlement^ in consideration of natural love and affection, was void as against a subsequent purchaser for valuable consideration, depended upon whether the purchaser had notice of the prior settlement; but it is now established that it is immaterial whether the purchaser had notice, because, as against him, the law implies fraud The authorities on that subject are reviewed by Lord Ellenborough in Doe d Otley v. Manning (9 Ekst, 59). The law as there laid down is commented on in a note to Shep. Touch., by AtheFley, p. 64, 8 ed r where it is said -"Upon the whole, there can be no doubt but the Act of the 27 Eliz avoids voluntary conveyances, as such, against subsequent purchasers for a valuable consideration. But it only does this, it is [851] apprehended, where the purchaser has no notice of the voluntary settlement." Here, however, the mortgagee had no notice of the settlement. [Willes, J , referred to Curiie v. Nind (1 Myl. & C. 17).] In Taylor v June* (2 Atk. 600) a post-nuptial settlement waa held void as to ci editors Fortescue, M. R., there said :-" I must decree for the plaiitiffs, the creditors, against the wife and children, for though I have always a great compassion for wife and children, yet, on the other side it is possible, if creditors should not have their debts, their wives and children may be reduced to want" In this case, if Mrs. Dickenson could not, prior to her marriage, have made a settlement in favour of her illegitimate son, which would be valid as against a subsequent purchaser for valuable consideration, what additional right did she acquire by her marriage] Marriage is a valuable consideration, but it is a consideration limited to tiie objects of the marriage In Sudgen's Vend and Purch. p 589, 13 ed , it is said.-" The marriage consideration runs through the whole settlement as far as it relates to the husband and wife and issue, but the marriage consideration will uot extand to remainders, to collateral relations, so as to support them against a subsequent sole to a bona fide purchaser." However, such a remainder, when after a vested estate tail, has been supported, on the ground that the intent of the settlor (a) In last Michaelmas Vacation, Dec. 1 and 3. Before Cockburn, C. J , Wight-man, J, Williams, J , Willes, J, and Blackburn, J 352 CLARKE V. WRIGHT 6 H & N 852 could not have been fraudulent, since he interposal a limitation which might prevent the ultimate remainder from taking eftect. White, v. St/tnyer (2 Lev 105). An illegitimate son is a stranger, and consequently the nuiniage consideration does riot extend to him In O^gond v. Strode (2 P Wins. 245; 10 Mod 533) Loid Maccles-h'eld first laid down the rule that the mainage consideiation supports only the limitation to the husband and wife and their issue, and that a remainder in fee to a [852J collateral relation is voluntary. There is, howevei, a dictum of Lord Eldon, in Pulvertoft v. Puhwtojt (18 Yes" 84, 92), that if there be father, tenant for life, with remainder to his son hi tail, they may agree, upcu the marriage of the son, to settle, not only upon his issue, but upon collaterals, and that the limitations to the Litter, though not within the marriage consideration, may be supported, as being within the contract between the father and son. In tioe d Hameiton v Mittoti (2 \Vils. K. B. 356) a limitation to collaterals, in an ante-nuptial settlement was held not to be voluntary and void as against a purchaser for valuable consideration. But there, as observed by Lord Campbell, C. J., rn delrvering the judgment of the Court hi Taileton v Lidddl (17 Q. B. 390, 415), the party conveying and settling the land took a benefit, and had a good consideration, in having part of his lands, of which he was seised in fee, discharged from an annuity. Other cases are collected in Koberts on Voluntary Conveyances, sect. 7, p. 120 [Cockburn, C. J Suppose two persons about to marry, one of whom has children by a former marriage, and that they agree by articles to make a provision for those children, would not that be valid ? If so, why should not the same law apply to illegitimate children'^J The settlement was made before the passing of the Poor Law Amendment Act, 4 fe 5 Wm. 4, c 76, s. 57, by which the mother of an illegitimate child, so long as she remains unmarried, is bound to maintain it as part of her family until it attains the age of sixteen Ntw^tead v Seailes (1 Atk. 265) decided that a settlement by a widow, previously to her second marriage, of her estate on the children of the first marriage, is not fraudulent and void as against purchaser or ci editors That case is cited in fciugden's Vend and Purch , p. 569, 13th ed., but not approved of. It is also reviewed in Robeits on Vo-[853J-luntaiy Conveyances, p. 363, where the author says, "At most, perhaps, when clearly understood, it is an isolated case." Doe d. Otley v. Manning (9 East, 59) has settled the construction of the 27 Eliz. c. 4. In Chapman v. Eineiy (1 Cowp. 278, 280)...
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