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CHAPTER V.

OF THE NEW STATUTES RELATING TO REAL PROPERTY.

left untrodden. Something, however, has been done to advance both the theory and the practice of the law. As to fines and recoveries, the abolition of those mystic rites and solemnities, which not even the ministering officers could comprehend (c), was long since proposed by learned and cautious men; and the safety and advantage of substituting a simpler process had been evinced by the experience of some of our colonies for more than a century. The rules of inheritance have been less necessarily, and the law of dower, less fortunately touched; but the statutes of limitation and prescription, and the statute for the relief of simple contract creditors, were demanded by justice and policy, by all who desired to live quiet and to die honest; while the statute of wills has enlarged and consolidated the testamentary dominion. We do wisely in thus relieving the ancient edifice of our laws from the incumbrances of a policy long extinct, in extending the narrow design, and correcting the obsolete style, of the feudal architect; but let us not hope to find in positive enactments a remedy for every evil, nor mistake the necessarily imperfect draughts of the legislature for laws fully matured and developed. On the contrary, this review of the short, but varied course of legislation, which we have already run, should have prepared the student to close with the reflection, that statutes, however advisedly framed, do but form the rude substratum, on which the judicature slowly rears a system of rules; and that, while the foundation is continually shifting, the superstructure can acquire neither solidity nor symmetry.

(c) 1 Wils. 73.

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ILLUSTRATIONS.

I.

Voluntary and Revocable Settlements.

THOUGH it is not essential to the operation of a conveyance of voluntary at the common law, that any consideration, valuable, meri- settlements; torious, or nominal, should be given, or expressed to be given; yet, in consequence of certain statutes, (13 Eliz. c. 5, and 27 Eliz. c. 4), a conveyance may, even at law, eventually stand or fall, according as it happens to be supported by a valuable consideration or not; while in equity the consideration is weighed with great nicety, and is fruitful of many distinctions.

with reference to the 27 Eliz.

As titles not unfrequently hinge on the law relating to vo- considered luntary deeds, and as that law has been materially altered, if not in part created, by some recent decisions, it may be useful c. 4. to take a practical view of the leading doctrines. The subject may be introduced, by observing, that in post-nuptial settlements, and deeds of gift generally, it is usual to insert the words "and for divers other causes and considerations," or words of a similar import, for the purpose of letting in the averment of considerations not appearing upon the deed (a), and of deterring purchasers and mortgagees from dealing with the settlor, on the assumption that the settlement is voluntary, and therefore void against purchasers by the stat. 27 Eliz. c. 4. As very

(a) Rex v. Inhabitants of Scammonden, 3 T. R. 474; Rex v. Inhabitants of Laindon, 8 T. R. 379;

Bishop of Exeter v. Guley, 5 Mann.
& R. 457.

Summary of the general

principles in regard to volun

tary instruments.

slight inducements, and even matter extrinsic or matter ex post facto, may supply a sufficient consideration to take a settlement out of that statute, the purchasing of an estate in defiance of a post-nuptial, or other apparently voluntary settlement, must always be a hazardous speculation; yet a purchaser was com pelled, in a recent case, to take a title exposed to that risk (b). The general principles (to bring them shortly together), appear to be these That a settlement, destitute of consideration, is, if legally perfected, good against the settlor and his representatives (c); but, if resting in agreement merely, absolutely void (d); except that, if the instrument be under seal, it may constitute a specialty debt recoverable at law, (as no consideration is necessary to sustain an action upon a covenant by deed (e)), though liable to be postponed in the administration of assets (ƒ)—That a settlement unsupported by a valuable consideration, is, though supported by a meritorious consideration, as the moral obligation to provide for a wife or legitimate (g) child, liable, if the subject be real estate (h), whether freehold or copyhold (i), to be avoided (k), wholly or pro tanto, under the above statute, by a bonâ fide alienation to a purchaser (/) for value, whether in money or money's worth (m), even with full notice, and with

(b) Currie v. Nind, 1 Mylne & C. 17; but see 2 Mer. 124; Johnson v. Legard, 1 Turn. & R. 281; Burton's Elem. 3rd ed. 84.

(c) Leech v. Leech, 1 Chan. C. 249; Villers v. Beaumont, 1 Vern. 100; Franklin v. Thornebury, 1 Vern. 132; Bale v. Newton, 1 Vern. 464; Ellison v. Ellison, 6 Ves. 656; Ex parte Pye, 18 Ves. 140; Sloane v. Cadogan, 3 Sugd. Vend. 297; Wheatley v. Purr, 1 Keen, 551; Collinson v. Pattrick, 2 Id. 121.

(d) Colman v. Sarrel, 1 Ves. jun. 50, 3 Bro. C. C. 12; Antrobus v. Smith, 12 Ves. 39; Pulvertoft v. Pulvertoft, 18 Ves. 93, 99; Edwards v. Jones, 1 Mylne & C. 237; Godsall v. Webb, 2 Keen, 99; and see Ward v. Audland, 8 Sim. 571, C. P.

Cooper, 146.

(e) Plowd. 308; Bac. Read. 13; 2 B. & Ad. 380; 7T. R. 477; 4 East, 200.

(f) Lomas v. Wright, 2 Myl. & K. 769.

(g) See Tudor v. Anson, 2 Ves.

sen. 582.

(h) Jones v. Croucher, 1 Sim. & Stu. 315.

(i) Doe v. Bottriell, 5 Barn. & Ad. 131; Currie v. Nind, 1 Mylne & C. 17.

(k) Goodtitle v. Moses, Black. 1019; Chapman v. Emery, Cowp. 278; Evelyn v. Templar, 2 Bro. C. C. 148.

(7) See Cro. Eliz. 445.

(m) Hill v. Bishop of Exeter, 2 Taunt. 69.

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