legal owner, or entitled to an estate, is binding on the other and his heirs; so that the order of reference and award are equivalent to title deeds. (g) But an award against trustees and guardians of an infant tenant for life of the realty, who died before the award was made, was holden not to be binding. (h) And an award between a lessee and his neighbour, awarding an act to be done for the benefit of the latter by the lessee, which would be waste upon the estate of the lessor, is bad. (¿) Many questions arise upon awards under the general or a local inclosure act in regard to the title to land, but the full consideration of which would be beyond the scope of this undertaking.(k) In general the legal title to an allotment is not acquired until the execution and publication of the commissioners' award, (7) and the preparation of plans and maps for the purpose of carrying an inclosure into effect, is no evidence of an allotment under an act which requires an appeal against an allotment to be made within six months after the cause of complaint had arisen, and it was held that it suffices to appeal within six months from the time of making the conclusive award.(m) But where the plaintiff pleaded a right of common under an award of commissioners appointed by an inclosure act, which authorized them to award such rights in respect of a certain messuage, and gave an appeal in three months after the award by feigned issue and to the quarter session; it was held that the limited time having elapsed, it was not necessary for him to show the original right, in respect of which the commissioners had given him the right in the award. (n) CHAP. IV. I. RIGHTS TO REAL PROPERTY. 19. Conveyances and transfers of real estates, as well as of 19. Marriage personalty, to trustees or others, by way of marriage settlement, settlements and jointures, (0) and to secure a jointure or provision for younger children, should be completed before marriage; or at least marriage articles, agreeing for a prospective settlement, should be previously signed, (p) for in either of those cases they will, in general, be valid against creditors (q) as well as purchasers. (r) But if not entered into nor articles signed until after the marriage, they will then be invalid as against the then Settlement, 1203 to 1230, and tit. Mar- (r) As to purchasers, 1 Atk. 265; 2 CHAP. IV. creditors, if the party were insolvent at the time; (s) and if he I. RIGHTS TO REAL PROPERTY. 20. Convey- be a trader, then, in case of a subsequent bankruptcy, a settlement after marriage will be inoperative, except, perhaps, as respects the wife's property, although he were solvent at the time the same was executed. (t) A settlement after marriage would also be invalid against a purchaser for pecuniary or good consideration, although he had notice thereof at the time of accepting the conveyance to him. (u) Marriage settlements and jointures are in general regulated by the statute 27 Hen. 8, c. 10, and which enacts, that a jointure after marriage may be accepted or refused by the wife. (x) In general the settlement is by lease and release, but it will depend upon the nature of the property and estate therein, the same as every other conveyance. Infants, whether male or female, are, in equity, bound by a proper and reasonable marriage settlement, although executed by them when under age, especially if parents or guardians have concurred. (y) 20. There are two statutes against fraudulent conveyances and deeds, and other acts, the 13 Eliz. c. 5, (≈) for the protection principally of creditors, and the 27 Eliz. c. 4, (z) for the protection of purchasers. The first (a) enacts, "That every feoffment, gift, grant, alienation, bargain, and conveyance of lands, tenements, hereditaments, goods and chattels, or of any lease, rent, common, or other profit or charge out of the same, made with intent to defraud creditors and others of their just debts, &c. shall be utterly void, but only so as against those creditors and others, (a) and expressly declares (sect. 6.) that estates or interests conveyed or created on good consideration and bonâ fide in favor of persons not having any notice of such fraud, shall be valid." This statute extends not only to fraudulent conveyances of land but of personal property; but it has been questioned whether it extends to land of copyhold tenure, (b) and to render a conveyance fraudulent within this statute, the party, at the time of making it, must have been indebted to the extent (s) 12 Vest. 136; 10 Ves. 139; 2 Bro. C. C. 96; 2 Atk. 519, 600. (t) 12 Ves. 136; 1 Ball & B. 252; 19 Ves. 88, 206. (u) 18 Ves. 84, post. (r) See statute and notes, Chit. Col. Stat. 271; and see the observations on settlement, ante, 57, 58. (y) Williams v. Williams, 3 Ves. J. 545; 1 Bro. C. C. 152, S. C.; 18 Ves. 259; 2 Bro. C. C. 545; 1 Mad. Ch. 355. (z) See these statutes, with notes, Chit. Col. Stat. 385 to 391. (a) See 13 Eliz. c. 5, and notes, Chit. Col. Stat. Fraudulent Conveyances, 585. The party himself cannot take advantage of the act, but all creditors may, 4 East, 1 ; 5 B. & Cres. 560. (b) 1 Cox's Rep. 278; Ellis, 155; but see Cowp. 705. of general insolvency, (c) or at least the deed or act must have been without an adequate consideration, and with intent to defraud one or more particular creditors or persons, in which case it would be void even at common law. If the party executing were not indebted at all, or not insolvent, so that abundant other property to satisfy any then existing debts be left, then even a bona fide gift of personal property would be valid against creditors, or even a subsequent purchaser; (d) but not so as to land, with regard to subsequent purchasers thereof, in consequence of the enactment of 27 Eliz. But a party not subject to the bankrupt laws, may convey all or part of his property to a particular creditor in preference to others, (e) and even in part for his own benefit, and the deed will protect the part for the benefit of creditors, but not that for his benefit. (ƒ) But a conveyance or other act, in preference of a particular creditor, must have been made bonâ fide with intent really to satisfy a just debt. (g) The fraud must, in general, be decided by a jury, (h) but it may sometimes be decided upon affidavits and motion. (i) It has been supposed that a voluntary conveyance in favor of creditors is void if they do not execute, (k) and if no creditor assented to the deed it would be so, but otherwise if creditors accept the benefit, (7) and if even one of several trustees executes, that would suffice to vest the property. (m) In case of a conveyance of real property, or a chattel real, the circumstance of the conveying party remaining in possession thereof would not be deemed a badge of fraud, as in the case of an assignment of mere personalty, (n) because, as there are usually title deeds applicable to real property and interest therein, creditors ought not to be deceived by the bare possession thereof; (0) and the same rule even extends to some (c) 3 B. & Adolp. 362; 5 Ves. 384; 1 Sim. & Stu. 315. (d) Twyne's case, 3 Co. 82, a.; 1 Mad. Cha. 275; 1 Sim. & Stu. 315; ante, 108, note (i). (e) 5 T. R. 235, 420; 8 T. R. 528; Newl, on Contr. 381, 382; 3 M. & S. 371; 4 East, 1; 5 Moore, 19. (f) Cailland v. Estwick, 2 Anstr. 381; 5 T. R. 420, S. C. (g) 2 Young & J. 304. (h) 5 B. & C. 666; 8 Dowl. & R. 442. (i) 8 B. & Cres. 217. The 3d section of 13 Eliz. c. 5, subjects the parties to a fraudulent conveyance to the forfeiture of the pretended purchase money, and one years' value of the land, and half a year's imprisonment; and on a late trial and (1) 8 T. R. 521; 6 East, 257. (0) 5 Taunt. 212; Baker v. Horn, 9 CHAP. IV. TO REAL PROPERTY. I. RIGHTS CHAP. IV. fixtures and annexations to the freehold, even for the purposes of trade, and although in the possession of a trader who has become bankrupt, and notwithstanding the enactment in the 6 Geo. 4, c. 16, sect. 72. (o) TO REAL PROPERTY. 21. Voluntary conveyances in fraud of purchasers, against 27 Eliz. c. 4. 66 21. The 27 Eliz. c. 4, intituled " An Act against Covinous and Fraudulent Conveyances," enacts, that every conveyance, grant, charge, lease, incumbrance, and limitation of any use, of, to, or out of any lands, tenements, or other herediaments, had or made for the intent and purpose to deceive and defraud such person as shall purchase the same for money, or other good consideration, the same shall be deemed and taken only as against that person, his heirs, &c. to be utterly void; but the 4th section declares that deeds upon good consideration and bonâ fide shall not be affected; (p) but voluntary deeds are, by the same terms of the act, good against the party conveying, and indeed it is a general maxim, that no one shall be allowed to allege his own fraud; (g) besides, a gift without consideration, if under seal, is valid against the party himself, and this, and the stat. 13 Eliz. were merely intended to protect purchasers and creditors. Copyhold estates are, it is supposed, not within this act; (r) and every prior conveyance, without pecuniary consideration or adequate value, excepting settlements before marriage, or in fulfilment of a contract before marriage, is considered voluntary, frudulent and void, as against a bonâ fide purchaser, (s) and Lord Hardwicke said, "I hardly know an instance where a voluntary conveyance has not been held fraudulent against a purchaser." (t) Thus a voluntary settlement of lands made in consideration of natural love and affection for very near relations, is void against a subsequent purchaser, though he had notice of the settlement before his purchase. (u) So a voluntary settlement after marriage may be set aside in favor of a subsequent legal mortgagee though he had notice of the settlement. (x) So a settlement by tenant in fee for maintenance of herself and children for her life, to raise portions for younger children, and the surplus to her heir at law, she then having many sons and daughters, is a voluntary settlement, and void against a purchaser; (y) and the title of a purchaser for (0) Ante, 351, n. (o). (p) See the sect. Chit. Col. Stat. 388; and see 1 Dow. Rep. N. S. 17; and see in general Cro. Jac. 454; 3 Coke, 82, b.; 9 East, 59; Cowp. 705, 711; 1 New Rep. 332. (q) 2 Bar. & Ald. 367. (r) 1 Cox, 278; Cowp. 765. See several cases, Chit. Col. Stat. 387, notes. (t) 3 Atk, 377. (u) 9 East, 59; Cowp. 260. I. RIGHTS a valuable consideration cannot be defeated by a prior volun- CHAP. IV. tary settlement, of which he had no notice, though he purchased of one who had obtained a conveyance by fraud, but _PROPERTY. of which fraud the purchaser was ignorant. (z) But marriage settlements before marriage, or in pursuance of a previous agreement, are valid; (a) and the giving up a previous voluntary bond, in consideration of a settlement or conveyance, would prevent it from being considered voluntary. (b) This act only protects persons who can, in the terms of the statute, be deemed purchasers. (c) But it extends to legal mortgages; (d) and a lessee at rack-rent has been considered as a purchaser for valuable consideration, protected by this act; (e) and a purchaser of an equitable interest is as much protected as a purchaser of a legal interest. (ƒ) But, at least at law, a mere equitable mortgagee, by a deposit of title deeds, is not a purchaser within the act, and therefore trustees under a voluntary settlement after marriage may, at law, recover such deeds from such mortgagee, leaving him to resort to a Court of Equity; (g) so if a purchase has been made at an under-value it would not invalidate a previous voluntary conveyance; (h) so where a purchaser with notice took a collateral security, the previous voluntary advancement to a child was holden good and effectual against such purchase; (i) and to entitle a person to the protection of this statute, he must be a purchaser bonâ fide, and for a valuable consideration; (k) but the release of an adverse claim is a sufficient consideration. (1) If the party taking under a voluntary conveyance himself sell the same for a valuable consideration, the prior conveyance cannot afterwards be treated as void, so as to defeat the right of such purchaser. (m) 22. Perfect Mortgages on real property or chattels real may be created by either of the deeds we have before noticed; and far as regards the transfer of the legal estate, the same descrip (s) 1 New Rep. 332. (a) Id. sect. 4; Cro. Jac. 454; Cowp. 278; ante, 329. (b) 19 Ves. 218; 2 Taunt. 69. (f) Buckle v. Mitchell, Palverton v. Palverton, 18 Ves. 90, 100; 1 Ves. & B. 183, 184; Otley v. Manning, 9 East, 69; 2 Taunt. 69. (g) 9 Bing. 76. as 22. Legal and equitable mort- |