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A28155 The judges resolutions upon the several statutes concerning bankrupts with the like resolutions on the statutes of 13 Eliz. and 27 Eliz. touching fraudulent conveyances / by George Billinghurst ... Billinghurst, George. 1676 (1676) Wing B2906; ESTC R4175 68,407 208

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Deed inrolled to the Queen In this case the purchaser shall enjoy the Land against the Queen by the Statute of 27 Eliz. for that Act being general and made in suppression of fraud shall bind the Queen Cook lib. 11. 74. a. Magdalen Colledg Case 7. A man conveyed his Lands to Future power of Revocation the use of himself for life and after to the use of divers others of his blood with a future power of Revocation viz. after such a Feast or after the death of such an one c. and before the power of Revocation commenceth he for valuable consideration doth bargain and sell the same lands to another and his heirs this bargain and sale is within the remedy of 27. Eliz. cap. 4. for although the Statute saith the first conveyance not by him revoked which seems by the literal sence to be intended of a present power of Revocation for no revocation can be made by force of a future power before it comes in esse yet it was held that the intent of the Act was that such voluntary Conveyance that was originally subject to a power of Revocation be it in present or in future shall not stand against a purchaser who cometh in upon good and valuable consideration and bona fide Cook lib. 3. 82. Twines Case 8. Resolved That if a man hath Power of Revocation extinguished power of Revocation and after to the intent to defraud a purchaser he levy a Fine or make a Feoffment or other conveyance to a stranger whereby he extinguisheth this power and after he bargain and sell the lands to another for valuable consideration the Bargainee shall enjoy the Land for as to him the Fine Feoffment or other conveyance by which the condition was extinct was void by the said Act of 27 Eliz. And it was said that the said Act made voluntary Conveyances with power of Revocation in an equal degree as to purchasers with conveyances made to defraud purchasers Cook lib. 3. 82. b. Twines Case 9. If a man make a Lease for Consideration years by covin and fraud and after make another Lease bona fide without Fine paid or rent reserved the second Lease shall not a void the first for first it was agreed that by the Common Law an Estate made by fraud shall be only void against him that had a former right and not against him that had a puisne right or interest Secondly no purchaser shall avoid a precedent conveyance made by fraud or covin but he that is a purchaser for money or other valuable consideration and the words good consideration in the Act ought to be understood of valuable consideration only and not a consideration of nature or blood c. Cook lib. 3. 83. Twines Case 10 A man of little capacity and not able to govern the Lands descended to him and being disposed to riot and disorder by mediation of friends openly conveyed his lands to them upon trust and confidence that he should take the profits for his maintenance and that he should not have power to waste and consume them and after being seduced by persons he sold his Lands to them for a small sum of money And this bargain and sale although it was for money was held to be out of 27 Eliz. which Act was made against fraud and deceit and shall not aid any purchaser that cometh not to the Land for good consideration lawfully and without fraudor deceit but such a conveyance made upon trust were void as to him that purchaseth it for valuable consideration and bona fide Cook lib. 3. 83. b. Twines Case 11. If a man seized of Lands in Notice of the fraud Fee make a fraudulent Conveyance to the end to deceive and defraud a purchaser against the Statute of 27 Eliz. and continueth in possession and is reputed as owner and B. enter into communication with A. for the purchase of it and by accident B. hath notice of this fraudulent conveyance and yet notwithstanding he concludes with A. and taketh an assurance from him yet B. shall avoid this fraudulent conveyance by the said Act of 27 Eliz. notwithstanding his notice for the Act by express words makes the fraudulent conveyance void as to a Purchaser for the notice of a Purchaser cannot make that good which by Act of Parliament is void as to it Cook lib. 5. 60. 12. One after Marriage voluntarily Voluntary Conveyance assigns a Lease for years as it were in joynture for his wife and took the profits and after sold it to one who had no notice of this conveyance this was held to be within 27 Eliz. although at the first it was not made upon trust to be revoked c. because it was a voluntary conveyance at the first and shall be intended fraudulent at the beginning But if at the time of the Marriage or after by reason of a portion given by his wives friends in recompence thereof and for a Provision for maintenance of his wife he had made an assignment of such a Lease to his wives friends and had after taken the profits thereof as in reason he ought during his life and had then sold that Term yet it had not been within the said Statute Crook part 2. 158. Colvil vers Parker 13. A man Covenants for natural love c. to stand seized to the use of himself for life the remainder to his Son in Tail with a power of Revocation and a Proviso to make Leases for 21 years and after makes a Lease for 21 years for 30 lib. Fine paid Resolved That notwithstanding this voluntary and revokeable conveyance yet the Lease for years was absolutely good by 27 Eliz. and as to the Lessee the conveyance shall be construed as if it had been revoked and that the Lessor was then Tenant in Fee and it was also resolved That in case of a Lease for years made as before there had been a Rent only reserved it had been a good consideration and within the Statute and the making of such Lease was a revocation of the first Estate according to the Lease Crook part 2. 181. p. 19. Also it was resolved that the said Lease for years respect being had only to the Proviso and power thereby given was void for it being only a covenant and the consideration not extending to the Lease for years no use is raised to him thereby ibidem 14. Grandfather Father and Son the Grandfather upon the Fathers marriage makes the Wife of the Father a Joynture and at the same time covenants to demise other Tenements to the Father for 1000 years and after maketh such demise accordingly to commence after his death in which was a Proviso to make the same void upon the Fathers dying without issue or making a Lease not reserving the ancient Rent the Father after assigns the said Lease to the use of his Son an infant to the intent that it should not drown by the descent of the reversion and with the colourable purpose and intent that the infant should pay debts c. The Grandfather dies the Father enters into the Lands and taketh the Profits and makes Leases and doth other Acts as Owner and neither the Assignees nor Infant took any Profits or paid any Debts and the Assignment was made to divers persons of good reputation but the assignment it self was delivered into the hands of a person of mean quality The Father after bargains and sells the said Lands for a great sum of money by Deed inrolled By all which marks the said Lease and Assignment were taken to be fraudulent Cook lib. 6. 72. a. Burrells case 15. Resolved in the said Case That whereas the words of the said Act of 27 Eliz. are That all and every Conveyance Grant c. for the intent to defraud or deceive such persons as have purchased or shall purchase the same Lands c. shall be deemed only against such Purchaser void yet if the Father make a Lease by fraud and covin of his Lands to defraud others to whom he shall demise or sell it as all fraudulent demises shall be intended and before the Father sells or demiseth it he dieth and the Son knowing or not knowing the said Lease sell the Lands upon good consideration In this case the Vendee shall avoid the said Lease by the said Act of 27 Eliz. for the words of the Act are general and it is not needful that he who sold the Land should make the former Estate or incumbrance But if the Estate be fraudulent whosoever is the seller the Purchaser shall avoid such fraudulent Estate Also it was resolved That although the Father had nothing of Inheritance in the Land at the time of the assignment of the Lease but the inheritance was in the Grandfather yet when the Grandfather dieth and the Father sells the Land his Vendee shall avoid the said Term for if he had bargained and ●old the Term only the bargain should have avoided the fraudulent assignment and by consequence the Vendee of the whole Fee-simple shall avoid it Co●k lib. 6. 72. a. b. Burrells case 16. In Trespass The Plaintiff and D●sendant claim by several Leases from the same man The Plaintiff in his Declara●io● 〈…〉 the defendants Lease to be made by fraud but sheweth not any consideration payed by himself whereupon the Defendant Demurs Yelverton at Common Law there was not any fraud remedied to defeat an after purchase but that only which was committed to defeat a former interest which was granted and 27 El. doth not aid it for here is no consideration payed for the second Lease no more than for the first Lukener contra A thing obtained by a mans own act makes a man a purchaser within the said Statute and the fraud is confessed by the Demurrer Anderson the confession of the fraud is not material in regard the Plaintiff is not such a person as ought to have benefit thereby and within the remedy and provision of the Act and by that Act a fraudulent conveyance is not made void against all but only against such as come in upon valuable consideration Wamsey according and he said that a fraudulent gift of goods remains good against the donor but not against his Creditor by 13 Eliz. Crook part 1. 445. p. 8. Vpton vers Basset FINIS
Feoffment in Fee of all his Lands to defraud the Plaintiff of his action but this fraud was not pleaded Resolved by the Court it need not be pleaded specially but only given in evidence First because 13 Eliz. provides generally that the estate as to the Creditors shall be void and Acts of Parliament made to suppress fraud shall be favourably interpreted Secondly fraud and covin are so privily hatched that the party grieved hath no means to find them out and then to force the Plaintiff who is a stranger to plead it would be against reason Cook lib. 5. 60. Gooches Case 18. The Court shall not intend Fraud not intendible by the Court. fraud where it is not found by the Jury A. seized of Lands in Fee holden of I. L. of his Mannor of H. by Fealty Rent and rendring the best beast after the death of every Tenant in Fee-simple A. by Deed in consideration of love to his Son and heir apparent and a marriage between his Son and B. and for the Sons advancement infeoffs his said Son of the said Land the Son afterward to the end B. should not be endowed during his fathers life re-demiseth the Land to his father for 40 years if he lived so long The marriage took effect the Son did his suit and after the Feoffment the father paid the Lords Rent the father dies the Lord taketh his best Beast for an Herriot and in Trespass brought the Jury found all the special matter also the Statute of 13 Eliz. But it was resolved That in regard no fraud was found by the Jury the Court should not intend the said Feoffment to be fraudulently made and the same being found to be made in consideration of marriage shall not by construction of Law be taken to extend to any other intent nor to be fraudulent Cook lib. 10. 56. ●19 There are two manner of gifts Consideration upon good consideration First upon consideration of Nature and Blood Secondly a valuable consideration and the Statute of 13 Eliz. cap. 5. and the Proviso therein extends only to a valuable consideration for a gift made to defeat others must be made upon as hihg and good consideration as the things to be defeated are also every gift made upon trust is out of the said Proviso because it is not bona fide and a trust is either expressed or implied expressed when it is set down in or upon the gift implied when the gift is made without any consideration or upon consideration of Nature and blood Cook lib. 3. 81. b. Twines Case 27 Eliz. Chap. 4 Concerning Fraudulent Conveyances 1. BY the Statute of 27 Eliz. cap. 4. Stat. of 27 Eliz. Deceit of purchasers It is ordained and enacted That all and every Conveyance Grant charge lease estate incumbrance and limitation of use or uses of in or out of any lands tenements or other hereditaments whatsoever had or made at any time heretofore since the beginning of the Queens Reign or hereafter to be made for intent or purpose to defraud deceive such person and persons Bodies Politick or Corporate as have purchased or shall hereafter purchase in Fee-simple Fee-tail for life lives or years the same Lands Tenements or Hereditaments or any part thereof so formerly conveyed leased c. or to defraud and deceive such as have or shall purchase any Rent Profit or Commodity in or out of the same or any part thereof shall be deemed and taken only as against that person and persons bodies Politick and Corporate his and their heirs successors executors administrators and assigns and against all and every other person and persons lawfully having or claiming by from or under them or any of them which have purchased or hereafter shall so purchase for money or other good consideration the same Lands Tenements or hereditaments or any part thereof or any rent profit or commodity in or out of the same to be utterly void frustrate and of none effect 2. And be it further Enacted That all and every the parties to such feigned covenous and fraudulent gifts grants leases c. before expressed or being privy to or knowing of the same or any of them which after the 20th of April next coming shall wittingly or willingly put in ure justifie or defend the same or any of them as true simple and done or made bona fide or upon good consideration to the disturbance or hinderance of the said Purchasers c. shall incur the penalty and forfeiture of one Penalty years value of the said Lands Tenements and hereditaments so purchased or charged the one moiety to the Queen the the party grieved to be recovered in any of the Queens Courts of Record by debt bill plaint or information where no essoyn protection or wager of Law shall be admitted to the defendant or defendants and to suffer imprisonment for one half year without Bail or Mainprise 27 Eliz. chap. 4. 3. Provided that this Act shall not extend to any grant c. made upon good consideration and bona fide nor to any mortgage made bona fide without fraud and upon good consideration 27 Eliz. chap. 4. 4. And it is further enacted that Conveyance with clause of Revocation if any person or persons have since the Queens Reign that now is or shall hereafter make any conveyance gift grant demise charge or limitation of use or uses of in or out of any lands tenements or hereditaments with any clause or condition of Revocation determination or alteration at his or their will and pleasure of such conveyance c. of in or out of the said lands tenements or hereditaments or any part or parcel thereof and after such conveyance gift c. so had or made shall bargain sell demise grant convey or charge the same Lands Tenements or Hereditaments or any part thereof to any person or persons bodies politick or corporate for money or other good consideration payed or given the said first conveyance c. not being by him revoked made void or altered according to the power reserved That then the said former conveyance assurance c. as touching the said Lands Tenements and Hereditaments so after bargained c. against the said Bargainees Lessees and Grantees and every of them their heirs successors executors administrators and assigns shall be void c. 27 El. cap. 4. 5. J. C. had a Lease for 60 years Lease forged if he lived so long and he forged a Lease for ninety years absolutely and by Indenture reciting the forged Lease he bargained and sold the same and all his interest in the Land to R. G. R. G. is no purchaser for valuable consideration within the said Statute of 27 Eliz. because he contracted not for the true and lawful interest and although by the words his true interest passed yet he gave no valuable consideration for it Cook upon Littl. fol. 3. b. 6. One who intended to sell his The Act binds the King Lands had by fraud conveyed the same by