FORE MAR if the settlement provision made by the husband be SETTLEtaken away from his wife, his title purchases to her MENTS BEequitable property must fail, and her rights in her RIAGE, own choses in action will remain the same, in regard to him, as if no such settlement had been made. THEIR VA- CREDITORS 2. With respect to the validity of ante-nuptial and pursettlements against creditors, &c., it is decided that CHASERS. a settlement, bona fide made before and in contemplation of marriage, is good not only against the husband, but against his creditors and subsequent Creditors and purpurchasers. The efficacy of the consideration of marriage is strongly demonstrated in the following case: A, previously to and in contemplation of his marriage with B, and in order to make a provision for himself and wife, and with a view of withdrawing out of the reach of his creditors a considerable part of his property, transferred at various times before the marriage into her name several sums of stock, and invested monies in her name; all of which were stated not to have been his own property, but that of other persons who had employed him as a stockbroker, and that the fact was well known to B. The marriage took place in the year 1805, and between that year and 1802 preceding, various transactions took place between them by deeds and settlements, containing (as it was alleged) false statements of property belonging to B (which in fact never did belong to her), with the intent to defeat the husband's creditors; and that with the like view, sums in stock, amounting to £6200 annuities, were, in the settlement made shortly before the marriage, recited, contrary to the truth, as belonging to her, and the same with other property were settled to chasers. SETTLE MENTS BE FORE MAR- THEIR VA LIDITY AGAINST Statute 27th Eliz. Effect of general her separate use for life, with an absolute power of disposition. B having survived her husband, his creditors attempted to defeat the above transactions and settlement upon the ground of fraud, but which was not proved and was denied by B.-Sir William Grant (the then Master of the Rolls) decided against the creditors, because it was immaterial whether the stock was, as recited, purchased with the wife's money or not; for, if it were the husband's, he had a right to settle it in contemplation of marriage, which settlement could not be defeated by his creditors; and that the fact of his being indebted at the time, and of B knowing it, would not affect the validity of the settlements : And his Honour thought, that the mis-recital of the property being the wife's, when it was her husband's, did not necessarily imply fraud, since he might choose to adopt that mode in giving her the property (a). Fraud, however, will vitiate an ante-nuptial settlement; and we shall consider the subject when real estates of the husband are settled upon his wife in consideration of his being intitled to receive her equitable property. The statute of the 27th of Elizabeth (b) avoids conveyances of lands, tenements, and hereditaments against subsequent purchasers for a valuable conpowers of re-sideration, when a general power of revocation is reserved to the settlor. And it was holden in St. Saviour's case (c), that notwithstanding the consideration of marriage was a good consideration, yet vocation in avoiding ante-nuptial settlements of lands against purchasers. (a) Campion v. Cotton, 17 Ves. 263. (b) Chap. 4. sect. 5. (c) Lane, 21, 22. if a power of revocation were annexed to the settle- SETTLEment, it was void against strangers. MENTS BE FORE MAR THEIR VA LIDITY CREDITORS Hence it appears, that if such a power be con- riage, tained in an ante-nuptial settlement of real property, it will be void against a subsequent purchaser; and AGAINST the effect will be the same, although the husband had AND PURreleased or extinguished his power before he made CHASERS. the subsequent sale (a). But the statute merely Statute does extends to "lands, tenements, and hereditaments," not extend to and not to personal estate. personal The valuable consideration mentioned in the act need not to be money. If, therefore, a person give up a right which he had for the property, such surrender would be a valuable consideration within the statute (b). estate, revocation persons, ex cept they be fluence of under the in the settlor, When the power of revocation is not general and nor to unqualified, but the exercise of it is made to depend powers of upon the consent of other persons, then if such with the con-persons be in the interest or under the control of sent of other the settlor, the settlement will be void against a subsequent purchaser, as in Lavender v. Blackstone There the husband reserved to himself a (c). power to make leases of all or any part of the premises, with the consent of A and B, trustees of his own nomination, for any number of years, with or without rent; and the Court held the reservation to be fraudulent, by enabling him to defeat the settlement in toto; the restriction being nothing, as the (a) 3 Rep. 83, and Bullock v. Horne, Moor's Rep. 617. S. P. (6) Hill v. Bishop of Exeter, 2 Taunt. 69-83, and Ward v. Shallet, (c) 2 Lev. 146. 2 Ves. sen. 17. SETTLE MENTS BE- RIAGE, THEIR VA LIDITY AGAINST CREDITORS AND PUR CHASERS. nor to bona fide powers to charge the settled estate. trustees were of the settlor's own appointment, and therefore to be presumed to act according to his wishes. But if the exercise of the power be made to depend upon the consent of persons not in the interest or under the control of the settlor, the settlement will be valid against a subsequent purchaser, as it was determined in Buller v. Waterhouse (a); because such a case is not considered within the meaning of the statute, the settlor not having the sole power of defrauding the purchaser by the exercise of the prior reserved power. Hence the usual powers in settlements to revoke the uses or trusts of the lands, for the purposes of sale and exchange, with a direction that the money should be paid to the trustees to be reinvested (b), will not avoid the settlement against a subsequent purchaser of the husband. Neither are powers bonâ fide reserved to charge sums of money upon the estate within the letter or meaning of the statute (c). We must except, however, such powers of charging, &c. as are reserved fraudulently, as when the husband retains or reserves to himself so large an interest or power over the property as to show the motive of the transaction to have been to defeat creditors or purchasers, for in such cases those powers will be considered as amounting in effect to a power of revocation, and therefore invalidate the settlements containing them (d). (a) 3 Keb. 751. Jones, 94. Rep. 39. (b) Doe v. Martin, 4 Term (c) Jenkins v. Keymis, 1 Lev. 150–152. (d) 3 Keb. 527. 1 Atk. 16. TITLE TO ACTION BY MARRIAGE. Contra, if these powers be merely Thus, in Tarback v. Marbury (a), the defendant HUSBAND'S having reserved to himself a power during his life, to grant, alien, or otherwise dispose, at his will and CHOSES IN pleasure, of the estate comprised in the deed; the Court held, that as the defendant might have charged MENT AFTER it to the full value, the reservation amounted in effect to a power of revocation, and therefore that the settlement was fraudulent. But it appears from the case of Jenkins v. Keymis colourable. (b), before referred to, that if such a power to charge the property be fairly reserved, and from the magnitude of the sum when compared with the value of the estate no presumption of fraud arises, it will not defeat the settlement at the instance of a purchaser or creditors. The subject next proposed to be considered was, 1. The settlements which have been under con- Settlements sideration were those only that were made previously riage. to marriage, at a period when the parties were able to contract with each other. If, then, as it has been shown, actual agreement or contract be necessary to give to the husband his wife's choses in action, in consideration of the provision made by him for her, it appears to be a necessary consequence, that a settlement made after the marriage by the husband upon his wife, even upon an accession of fortune to her (not given to her separate use and disposition), where the transaction is between themselves only, and no father, guardian, or Court acts for her, will not constitute the husband a purchaser of such additional after mar |