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but as merely doing what the law admits to be rightful. A sale, assignment, or other conveyance is not necessarily fraudulent because it may operate to the prejudice of a particular creditor.1 But secret preferences made to induce particular creditors to sign a general assignment, and unknown to the other creditors who execute the assignment, are treated as frauds upon such creditors.2

371. It may be added that although voluntary conveyances are or may be void as to existing creditors, they are perfect and effectual as between the parties, and cannot be set aside by the grantor if he should become dissatisfied with the transaction.3 (a) It is his own folly to have made such a conveyance. They are not only valid as to the grantor, but also as to his heirs and all other persons claiming under him in privity of estate with notice of the fraud. (b) A conveyance of this sort (it has been said with great truth and force) is void only as against creditors, and then only to the extent in which it may be necessary to deal with the conveyed estate for their satisfaction. To this extent and to this only it is treated as if it had not been made. To every other purpose it is good. Satisfy the creditors and the conveyance stands.5 (c) But the assignees of a bankrupt or an insolvent

371.

1 Holbird v. Anderson, 5 T. R. 235; Pickstork v. Lyster, 3 M. & Selw. R.

2 Post, § 378.

8 Petre v. Espinasse, 2 Mylne & Keen, 496; Bill v. Cureton, Id. 510, 530. 4 Randall v. Phillips, 3 Mason, R. 378.

5 Sir W. Grant, in Curtis v. Price, 12 Ves. 103; Worseley v. De Mattos, 1 Burr. 474; 1 Madd. Ch. Pr. 222, 223; 1 Fonbl. Eq. B. 1, ch. 4, § 12, note (a);

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debtor are entitled to the same rights and stand in the same predicament as the creditors themselves, and are deemed to represent them.1 (a)

372. The circumstances under which a conveyance will be deemed purely voluntary, or will be deemed affected by a consideration valuable in itself or in furtherance of an equitable obligation, are very important to be considered; but they more properly belong to a distinct treatise upon the nature and validity of settlements. It may not however be useless to remark in this place, that a settlement made upon a wife after marriage is not to be treated as wholly voluntary where it is done in performance of a duty which a Court of Equity would enforce. (b) Thus if a man should contract a marriage by stealth with a young lady having a considerable fortune in the hands of trustees, and he should afterwards make a suitable settlement upon her in consideration of that fortune, the settlement would not be set aside in favor of the creditors of the husband, since a Court of Equity would not suffer him to take possession of her fortune without making a suitable settlement upon her.2 (c) It has been said that

Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 3, § 4; Malin v. Garnsey, 16 John. R. 189; Reichart v. Castelor, 5 Binn. 109; Drinkwater v. Drinkwater, 4 Mass. R. 354.

1 Doe v. Ball, 11 Mees. & Welsb. 531, 533.

2 Post, §§ 1372, 1373, 1377, 1415; Moor v. Rycault, Prec. Ch. 22, and other

Clemens, 28 Wis. 637; Noble v. No- 147; Taylor v. Dean, 7 Allen, 251. ble, 26 Ark. 317.

If a creditor is a party to such a deed, or acquiesces in one, he cannot afterwards avoid it, nor can any one claiming under him with notice or as a volunteer. Olliver v. King, 8 DeG. M. & G. 110; Baldwin v. Cawthorne, 19 Ves. 164; Steel v. Brown, 1 Taunt. 381; Ex parte Harvey, 27 Eng. L. & E. 272. As to acquiescence by the creditor, see Rapelee v. Stewart, 27 N. Y. 310; Richards v. White, 7 Minn. 345; Phillips v. Wooster, 36 N. Y. 412; French v. Mehan, 56 Penn. St. 286. One who purchases the equity of redemption on foreclosure sale must in like manner accept the mortgage, and must on redeeming pay what is justly due. Russell v. Dudley, 3 Met.

Secus if an assignee of an insolvent clearly manifests an intention to avoid the mortgage, and sells all his interest in the estate. Freeland v. Freeland, 102 Mass. 475.

(a) See ante, § 322, note; Bartholomew v. McKinstry, 2 Allen, 448; Verselius v. Verselius, 9 Blatchf. C. C.

189.

So of executors and administrators. Parker v. Flagg, 127 Mass. 28; Welsh v. Welsh, 105 Mass. 229.

(b) See Davidson v. Lanier, 51 Ala. 318. But see Kuhn v. Stansfield, 28 Md. 210, infra.

(c) A settlement upon an intended wife, for her support and that of the children of the marriage, where the wife has already advanced considerable sums of money to the husband in

a post-nuptial voluntary agreement by a father to make a provision for a child will be specifically enforced in equity, as founded in moral duty. But this doctrine, although it has the support of highly respectable authorities, seems now entirely overthrown.2

373. In like manner what circumstances connected with voluntary or valuable conveyances are badges of fraud or raise presumptions of intentional bad faith, though very important ingredients in the exercise of equitable jurisdiction, fall rather

cases cited in 1 Fonbl. Eq. B, 1, ch. 4, § 12, and note (b); Id. ch. 2, § 6, note (k); Jones v. Marsh, Cas. T. Talb. 64; Wheeler v. Caryl, Amb. R. 121; Jewson v. Moulton, 2 Atk. 417; Middlecome v. Marlow, 2 Atk. 519; Ward v. Shallet, 2 Ves. 16; Ramsden v. Hylton, 2 Ves. 304; Arundel v. Phipps, 10 Ves. 139; Russell v. Hammond, 1 Atk. 13; Wickes v. Clarke, 8 Paige, R. 161.

1 Ellis v. Nimmo, Lloyd & Goold, R. 333. Post, §§ 706, 706, a; 787, 793 b; 973. See also that a voluntary assignment of a bond is a conclusive title to the assignee against the estate of the assignor, Fortescue v. Barnett, 3 M. & Keen, 36, 42, 43; ante, § 176; post, § 433, note (1); Jefferys v. Jefferys, 1 Craig & Phillips, 138, 141.

2 See Holloway v. Headington, 8 Sim. R. 324, 325; and Jefferys v. Jefferys, 1 Craig & Phillips, 138, 141; post, §§ 433, 706, 706 a; 787, 793, 973.

contemplation of the marriage, is valid against the husband's creditors though the husband was then in very embarrassed circumstances to the knowledge of the wife, and was declared a bankrupt not long afterwards for an act subsequent to the marriage. Frazer v. Thompson, 5 Jur. N. s. 669; s. c. 1 Giff. 49. But it was here intimated that the case might be different if the ceremony has been resorted to as a mere pretence and cloak for fraud. Except in such a case as that it was said that there was no case in which any settlement of property made before and in consideration of marriage had been set aside on the ground of the insolvency or embarrassed circumstances of the husband, or as a fraud upon creditors on a subsequent bankruptcy. Campion v. Cotton, 17 Ves. 268.

The case of Colombine v. Penhall, 1 Smale & G. 228, was referred to as within the exception.

Where however a husband voluntarily executed a bill of sale of his property to secure to his wife a sum

of money constituting her separate estate, which he had received and invested in his business with her knowledge and consent, and without any promise at the time to refund the same, it was held in Kuhn v. Stansfield, 28 Md. 210, that the conveyance was void as to existing creditors, the husband having no other property to satisfy their claims. See Gardner v. Short, 4 C. E. Green, 341; Smith v. Vreeland, 1 C. E. Green, 198. But see Davidson v. Lanier, 51 Ala. 318.

In another case a trader sold his stock in trade, and as part of the consideration secured an annuity during the joint lives of himself and wife, equal to one fourth the profits, and a contingent annuity to the wife if she survived him equal to one sixth of the profits. The trader died, and on a creditors' bill it was held that the annuity to the wife was invalid, though the rest of the transaction was not attacked. French v. French, 6 DeG. M. & G. 95.

within the scope of treatises on evidence than of discussions touching jurisdiction.1 It may however be generally stated that whatever would at law be deemed badges of fraud or presumptions of ill faith will be fully acted upon in Courts of Equity. But on the other hand it is by no means to be deemed a logical conclusion that because a transaction could not be reached at law as fraudulent, therefore it would be equally safe against the scrutiny of a Court of Equity; for a Court of Equity requires a scrupulous good faith in transactions which the law might not repudiate. It acts upon conscience, and does not content itself with the narrower views of legal remedial justice.2

374. The question has been much discussed how far a settlement made after marriage in pursuance of an asserted parol agreement before marriage is valid, as against creditors in cases affected by the Statute of Frauds. There is no doubt that such a settlement made in pursuance of a prior valid written agreement would be completely effectual against creditors. (a) But the difficulty is, whether such a settlement executed in pursuance of a parol contract obligatory in foro conscientiæ ought to be protected when made, although it might not be capable of being enforced if not made. It is certain.that the mere performance of a moral duty even of the most meritorious nature has not been deemed sufficient to protect a voluntary conveyance, even in favor of a deeply injured party to whom it is designed to be a compensation for injustice and deceit. And hence the difficulty is increased of giving effect to a contract which in its own character, although founded upon an intrinsic valuable consideration, is yet in contemplation of law deemed to be a nudum pactum. There have been some struggles in Courts of Equity to maintain the efficacy of such a post-nuptial settlement against creditors, where it purported to be founded upon a parol agreement before marriage recited in the settlement. But the strong inclination

1 See 1 Eq. Abridg. 148 E.; 3 Stark on Evid. Pt. 4, pp. 615 to 622; Twyne's case, 3 Co. R. 80.

2 See 1 Fonbl. Eq. B. 1, ch. 2, § 8, notes; Id. ch. 3, § 4; Id. ch. 4, §§ 12, 13, and notes.

8 Gilham v. Locke, 9 Ves. 612; Lady Cox's case, 3 P. Will. 339; Priest v. Parrot, 2 Ves. 160.

(a) Concerning the sufficiency of statute see Skelton v. Cole, 1 DeG. & a memorandum under the English J. 587.

of these courts now seems to be to consider such a settlement incapable of support from any evidence of a parol contract, since it is in effect an attempt to supersede the Statute of Frauds, and to let in all the mischiefs against which that statute was intended to guard the public generally, and especially to guard creditors.1 (a)

1 See Atherley on Marr. Sett. ch. 9, p. 149. According to Mr. Cox's Report of Dundas v. Dutens (2 Cox, R. 235), Lord Thurlow actually held such a settlement valid, asserting that it could not be deemed fraudulent, and that the cases, though they had gone a great way in treating settlements after marriage as fraudulent, had never gone to such a length as that. Mr. Cox having been of counsel in that case, his report is probably accurate. The point is not quite so strongly stated in the report of the same case in 1 Ves. jr. 196. But Lord Thurlow is there made in effect to say: If the husband made an agreement before marriage that he would settle, and then in fraud of the agreement got married, that he would be bound by the agreement; and he thought there was a case in point; that it would be a kind of fraud against which the court would relieve. If there was a parol agreement for a settlement upon marriage, after marriage a suit upon the ground of part performance would not do, because the statute is expressed in that manner. And he then asked the question whether there was any case where in the settlement the parties recite an agreement before marriage in which it has been considered as within the statute.' The distinction between cases of fraud and a mere reliance upon a parol agreement for a settlement before marriage, and in consideration thereof, is expressly taken in Lady Montacute v. Maxwell (1 P. Will. 619, 620); s. c. Prec. in Ch. 526; 1 Str. R. 236; 1 Eq. Cas. Abr. p. 19, pl. 4, where the Lord Chancellor said: 'In cases of fraud equity should relieve even against the words of the statute, &c. But where there is no fraud, only relying upon the honor, word, or promise of the defendant, the statute making these promises void, equity will not interfere.' 1 Ves. jr. 199 note (a). Post, § 768. This may be correct in cases of parol promises in consideration of marriages, for the Statute of Frauds (29 Car. 2, ch. 3, § 4) expressly declares that no action shall be brought whereby to charge any person upon an agreement made in consideration of marriage,' unless the agreement shall be in writing and signed by the party to be charged therewith; for in such a case it seems to have been held that the marriage is not a part-performance to take the case out of the statute. See Montacute v. Maxwell, Ibid.; Dundas v. Dutens, 1 Ves. jr. 196; s. c. 2 Cox, R. 235; Redding v. Wilkes, 3 Bro. Ch. R. 400, 401; Taylor v. Buck, 1 Ves. R. 297, 298. All this seems perfectly correct. But suppose the party to have fulfilled his parol promise after marriage, ought a Court of Equity to disturb the settlement in favor of creditors? The marriage in such a case is not the less a valuable consideration because a parol promise was relied on; and if relied on as valid, and the marriage is had on the faith thereof, is not the non-fulfilment of it a fraud upon the other party, whether intentional or not? Mr. Chancellor Kent, in Reade v. Livings. ton (3 John. Ch. R. 481), after reviewing the authorities, has come to a conclusion unfavorable to the validity of such a settlement. Sir William Grant,

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(a) See Warden v. Jones, 2 DeG. & J. 76.

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