Turton v Benson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1719 |
| Date | 01 January 1719 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 234
Chancery Division
[522] Case 323.-turton versus benson. [1719.] Gilb. Chan. 288; 1 Eq. Abr. 45, p. 5 (E.), and 88, p. 2 ; 1 Wms. 496, S. C.; Ante, 165, and 267, and references, to which may be added, 1 Vern. 348, and 475 ; Strange, 240; 3 Wms. 66 ; 1 Brown's Parl. Cases, 57, and 60 [4 Bro. P. 0. 144, 149, 2nd ed.]. A bond obtained in fraud of a marriage agreement, though afterwards assigned to a creditor for a just debt, shall be set aside in equity. This was an appeal from the Eolls, and was but this : The plaintiff on his marriage with the daughter of Mr. Benson was to have 3000 fortune ; but the plaintiff's mother being living, so that he could make no settlement without her concurrence, she, in consideration of the marriage and portion, joined in making a settlement adequate to the fortune; but before the marriage Mr. Benson expressing his inability to give such a fortune with his daughter, having other children to provide for, Mr. Turton and he came to an agreement .between themselves, that to induce the mother to join in making the settlement, the portion should be mentioned to be 3000, but that Turton should give him a bond to pay him back 1000 of it at the end of seven years, and that in the mean time he should have it without interest; and accordingly a bond was given the 29th of July 1710, and then the settlement was made, and the marriage proceeded. Before the end of seven years Mr. Benson became greatly indebted, to the amount of 10, or 12,000, and then died, and the defendant his widow took out administration, and entered into an agreement with several of the creditors for the assignment of this bond, amongst other securities, towards satisfaction of their debts; and it appeared plainly in the cause, that Mr. Turton was privy to, and knew of this assignment, but now brought this bill to be relieved against the bond, and to have it delivered up, as obtained from him in fraud of the marriage contract, and after the treaty had been agreed to, and a suitable settlement provided for the lady. The creditors, who had obtained the assignment of this bond, likewise brought their bill to have the agreement executed, and that they might be at liberty to proceed, in the name of the administratrix, for recovery of the money due on this bond, -and insisted [523] that, whatever consideration the bond might have had whilst it continued in Mr. Benson's hands, or in the hands of his representative, yet now being assigned to them, and they being just and honest creditors, ought to have the benefit of it; that whatever fraud may be supposed in the obtaining of it, yet it being now assigned to them on so just and valuable a consideration as the payment of their debts, that had purged the fraud, and would make good the assignment. That though the legal interest in this bond could not be assigned to them, being a Chose in action, yet by the assignment the administratrix was become a trustee in equity for them, and therefore they ought to be at liberty to make use of their trustee's name at law for recovery of the money due thereon ; and it was likened to the case, where a man purchases an estate of A. to which B. has right, and he has notice of it, this notice will affect his purchase, notwithstanding any conveyance ; but if he after sells this estate to another person, who has no notice of B. 's right, this second purchaser without notice shall not...
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