1 Johns. Ch. 261 | New York Court of Chancery | 1814
The same questions arise in this case as in that of Souverbye and wife v. J. Arden and others,
1. Whether the voluntary conveyance to the daughter was fraudulent and void, under the 3d section of the act of the 26th of February, 1787, [s. 10. c. 44., and which is the same, precisely, as the statute of 27th Eliz. c. 4.,] as against a sub,-: sequent purchaserfor valuable consideration; and, if so, then,
2. Whether the intervening marriage of the plaintiffs, between the settlement and the purchase, did not restore the first deed, and give it valye and validity.
1. I shall consider Verplank as a purchaser for a valúa-, ble consideration. He gave 16,000 dollars in cash, and, though it may have been a very cheap purchase, there was not such inadequacy of price as to justify an inference of fraud. I shall, also, consider him as a purchaser without actual notice of the settlement upon the plaintiff. He declares in his answer, that he had no knowledge or notice of the conveyance of 1805, when he purchased, and there is not proof to contradict this answer. But I hold him chargeable with constructive notice, or notice in law, because he had information sufficient to put him upon inquiry. He admits that, before the execution of the deed, he had heard that the grantor had made some provision for his daughters out of property in Greenwich-street / and there is no evidence in the
It has been suggested, that this is a principle settled in England since our revolution ; but it appears to me that the late cases have declared no new doctrine, and have only followed the rule as they found it, long before settled by a series of judicial decisions of too much authority to be there shaken. In the late case in East’s Rep. Lord Ellenborough, in delivering the opinion of the JL B., gav< a full and at cu aie view of most of the cases on both sides of the question, from the time of the statute of Elizabeth ; and no one who examines that opinion attentively, and, especially, if he also inspects the original cases referred to, can well hesitate as to the correctness of the conclusion drawn by the court, that “ the weight, number, and uniformity of the authorities, in favour of the rule as there decided, do very much preponderate.”
It cannot be expected that I should attempt to go over,
In favour of the voluntary settlement, are Sir Ralph Bovy’s case, 1 Vent. 193. Jenkins v. Kemeshe, Hard. 398. 1 Lev. 150. Lavender v. Blackstone, 2 Lev. 146. Garth v. Mois, 1 Keb. 486. Anon. Sty. 446. Gilberts Law of Ev. 201. Standon v. Charlwood, MSS. cited 9 East, 64. Lord Mansfield, in Cadogan v. Kennett, Cowp. 434., and in Doe v. Routledge, Cowp. 708. 710.
In favour of the subsequent purchaser, are Woodie,s ease, cited in Colville v. Parker, Cro. Jac. 158. Prodgers v. Langham, 1 Sid. 133. White v. Hussey, Prec. in Ch. 14. Tonkins v. Ennis, 1 Eq. Cas. Abr. 334. pl. 6. White v. Sansom, 3 Atk. 412. Townsend v. Windham, 2 Ves. 10. Roe v. Mitton, 2 Wils. 356. Goodright v. Moses, 2 Bl. Rep. 1019. Chapman v. Emery, Cowp. 278. Lord Kenyon, in Nunn v. Wilsmore, 8 Term, 528. There are, however, some cases which are not mentioned in the opinion delivered by Lord Ellenborough, and which, as it seems to me, give additional weight to the opinion which has been adopted. Thus, in Walker v. Burrows, (I Atk. 93.,) Lord Hardwicke observes, “ It has been said, all voluntary settlements are- void against creditors, equally the same as they are against subsequent purchasers, under the statute of 27 Eliz. ch. 4., but this will not hold and he afterwards adds, But, upon the statute of the 27 Eliz., which relates to purchasers, there, indeed, a settlement is clearly void, if voluntary, that is, not for a valuable consideration, and the subsequent purchasers shall prevail to set aside such settlement.” Again, in Upton v. Basset, which was shortly after the statute, (Cro. Eliz. 445.,) there was an evident admission and understanding of allthejudgés,
It has been observed, that the present defendant was not a purchaser with actual notice of the deed of settlement. He does not, therefore, come within the exception for which some have contended. Doubts have been frequently expressed, whether the better construction of the statute would not have been to support the voluntary conveyance
2. The next point is, whether the marriage of the plaintiffs, before the purchase, did not give a new character to" the first deed, so as to entitle it to preference.
It is admitted, that the deed to Verplank was made and executed after the marriage, and in consequence of it, and the testimony in the case is decisive, (I refer to the depositions of Mrs. Servant and Colonel Hawkins,) that the plaintiff, Robert Sterry, married with previous knowledge of this deed of settlement on his wife. Under these circumstances, I consider the law to be, that the first deed became good and valuable, and ought to prevail. The marriage was a valuable consideration, which fixed the interest in the grantee against all the world ; she is regarded, from that time, as a purchaser, and as much so as if she had then paid an adequate pecuniary consideration. It has been a principle of long standing, and uniformly recognised, that a deed, voluntary or fraudulent in its creation, and voidable by a purchaser, may become good by matter ex post facto. (1 Sid. 133. 1 East, 95.) It is the constant language of the books, and of the courts, that a voluntary deed is made good by a subsequent marriage, and a marriage has always been held to be the highest consideration in law. (Co. Litt. 9. b.) The cases do not require that the settlement should have been
The conclusion from these cases, and from the which they lay down, appears to me to be, that the marriage of the daughter, in this case, changed the character of the previous settlement, and placed her in the light of a purchaser for a valuable consideration, and gave her preference to any subsequent purchaser. I shall," therefore, set aside the deed to Verplank, and make the same decree as in the former case.
N. B. This decree was unanimously affirmed, on appeal to the court of errors, March 28th, 1815. [See 12 Johns. Rep. 536.]
Ante, p. 240.
Vide Atherly on Marriage and Family Settlements, p. 178—198. who has examined, at large, the question, whether a voluntary settlement is fraudulent and void, under the 27 Eliz., against a subsequent purchaser, merely from its being voluntary. He has taken a view of the subject somewhat new, and he concludes that, according to the true construction of the statute, a voluntary settlement, as such, is void against a subsequent purchaser for a valuable consideration, without notice, but not against a pur-, chaser with notice. In the latter case, he holds the settlement to be valid.