England v Downs
| Jurisdiction | England & Wales |
| Judgment Date | 08 June 1840 |
| Date | 08 June 1840 |
| Court | High Court of Chancery |
English Reports Citation: 48 E.R. 1284
ROLLS COURT
S. C. 6 Beav. 269; 9 L. J. Ch. (N. S.), 313; 4 Jur. 526. See now Married Women's Property Act, 1882 (45 & 46 Vict. c. 75).
[522] england v. downh. June 4, 5, 8, 1840. [S. C. 6 Beav. 269; 9 L. J. Ch. (N. S.), 313 ; 4 Jur. 526. See now Married Women's Property Act, 1882 (45 & 46 Viet. c. 75).] If a woman entitled to property, during the treaty for marriage, represents to her intended husband that she is so entitled, that upon the marriage he will become entitled jure rnariii, and if during the same treaty she clandestinely conveys away the property in such manner as to defeat his marital right, arid secure to herself the separate use of it, and the concealment continues until the marriage, a fraud is thus practised on the husband, and he is entitled to relief. Direct misrepresentations, or wilful concealment with intent to deceive the husband, would entitle him to such relief; and if both the property and the mode of its conveyance pending the marriage treaty, be concealed from the intended husband, there is still a fraud practised on him; cases have, however, occurred in which concealment, or rather the non-existence of communication to the husband, has not been held fraudulent; and whether fraud is made out must depend on the circumstances of each case. As a conveyance made immediately before her marriage is primA facie good, it is to be impeached only by the proof of fraud. In August a widow, having a second marriage in contemplation, settled her property on herself for life, for her separate use, with remainder to the children of her first marriage, and in October following she married. The settlement was prepared by her direction, without the privity or assent " of her then intended husband." In a suit to carry the settlement into execution, the second husband insisted on the settlement being a fraud on his marital rights, but it was not proved that in August he was "the intended husband." Held, that the evidence was insufficient to impeach the deed. Assignment of all and every the household goods, &c., the particulars whereof were stated to be more fully set forth in an inventory signed by the grantor, and annexed thereto. There was no such inventory. Held, nevertheless, that the assignment was effectual, it appearing from the answer of the party resisting its validity, that the particulars could be ascertained. The question in this cause was, whether a settlement made by Mrs. Joan Mason, 8BEAV.5M. ENGLAND V. DOWNS 1285 since deceased, shortly before her marriage with the Defendant Mr. Broad, without his concurrence, was or not a fraud on his marital rights. William Mason, by his will, gave all his real and personal estate to his widow Joan Mason. The testator died in 1816, leaving his widow and three daughters, one of whom was Plaintiff in this suit, surviving him. The widow proved the will, entered into possession, and continued to carry on the testator's business of victualler. By indentures of the 5th of August 1818, in consideration of natural love and affection, Mrs. Joan [523] Mason conveyed her freehold and leasehold property to trustees, upon trust as to part near the Magdalen Chapel, Bristol, for such uaes as she, whether covert or sole should appoint; and in default for her separate use for life, with remainder to her heirs; and as to the other part of the property for her separate use for life, with remainder to her three daughters and their children. She also assigned to trustees, "all and every the household goods, furniture, plate, linen, china, books, stock-in-trade, brewing utensils, and all other the effects of her Joan Mason," the particulars whereof, were stated " to be more fully set forth and expressed in an inventory thereof signed by the said Joan Mason, and thereunto annexed," upon trust for herself for her separate use for life, and after her death, to sell the household goods, &c., and thereout to pay off a mortgage on part of the freehold property situate in Bath Street, and to divide the surplus between her three daughters. There was in fact no inventory of the household goods, itc., signed by Mrs. Joan Mason, or annexed to the deed. The execution of the deed was not accompanied or followed by any change or alteration in the apparent ownership or possession of the property comprised in it; and until her second marriage, which afterwards took place, Mrs. Mason acted as owner of the property in the same manner as she had previously done. On the 26th of October 1818, Mrs. Joan Mason married the Defendant Mr. Broad, who entered into the receipt of the rents of the freehold and leasehold property comprised in the settlement, and took possession of, and apparently dealt with the personal chattels as his own ; he thenceforward carried on the business in [524] his own name until August 1832, when he sold the business, stock and effects for 871, and applied 150 part thereof in satisfaction of trade debts, and paid 200 in discharge of the mortgage of the Bath Street property, upon which the title-deeds of that property were delivered over to Mr. Broad. Mrs. Joan Broad died in 1833, and this bill was filed in 1836, by one of the three daughters by [her former marriage, against Mr. Broad and the trustees, for the purpose of having the trusts of the deed of the 5th of August 1818 carried into execution for their benefit. It appeared from the statements in the answer, that in 1829, Mrs. Broad, without her husband's consent, mortgaged a part of the freehold property, over which under the settlement she had a power of appointment, for 160, of which 150 being...
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