That a conveyance by the heir may be fraudulent against the creditors of the ancestor, was decided so long back as the time of Lord Coke. In Gooch's case (a) the ancestor was indebted in bond; an action was brought against the heir, who pleaded riens per descent, and he proved that, before the action brought, he had enfeoffed W. G. in fee of the descended lands, but the plaintiff's counsel alleged and proved, that the feoffment was made by fraud and covin, to defraud the plaintiff of his action, and therefore void by the statute of 13 Eliz. c. 5., as to the plaintiff, and it was so held by the whole court. Again, a court of equity will relieve in such a case; Bateman v. Bateman. (b) Where "a man bound himself and his heirs in a bond, and died leaving a real estate to descend to his heir, and the heir having aliened the real estate, the obligee brought a bill against the heir and purchaser, to be relieved, on the statute (of 3 & 4 W. & M.) against fraudulent devises, and the Lord Chancellor relieved him." A purchaser, where there are debts, is not required to see to the application of the purchase money; "but if the nature of the transaction affords intrinsic evidence, that the executor, in the mortgage or sale, is not acting in the execution of his duty, but is committing a breach of trust, as where the consideration of the mortgage or sale is a personal debt due from the executors to the mortgagee or purchaser, there such mortgagee or purchaser, being a party to the breach of trust, does not hold the property discharged from the trusts, but equally subject to the payment of debts and legacies, as it would have been (a) 5 Reports, 60. a. (b) 1 Eq. Ca. Abr. 149. pl. 6. 1843. RICHARDSON v. HORTON. HORTON. The fact of notice makes this case differ from those decided. In Mathews v. Jones (b) the defendants were not charged with notice (c) of the existence of any of the testator's debts; and in Spackman v. Timbrell (d) there was no notice of the existence of any debts. In Higgins v. Shaw (e) the court said, "If a man sells lands which are subject to bond or other specialty debts, this court presumes that the purchase money is to be applied to the discharge of those debts; and that the sale is made with that view, and the purchaser will be discharged. But this is a different case, for here the party does not sell, he merely settles the estate. The case as against John is still stronger-he first wasted the assets, and then, two years after the filing of the bill, put the estate into settlement." At all events, the life estate of the husband is still liable to the specialty creditors: it is the estate to which he would be entitled, jure mariti, independent of the settlement, and still forms part of the testator's estate. Where a fraud is committed, the court will lay hold of the interest of any party concerned in it, as an indemnity to the parties injured. Burridge v. Row. (g) Mr. Pemberton Leigh and Mr. Koe for Mr. Rees and his son. The question is, whether a mere specialty debt, which is neither charged by will or otherwise on an estate, but is a simple legal liability to be enforced by action (a) 2 Sim. & S. 199. (d) 8 Sim. 253. (e) 2 Dr. & War. 356. action or suit against the person and property of the debtor, constitutes a charge or lien on the estate of the deceased debtor, or remains, after his death, a pure legal demand, to be enforced against the heir in the usual way. Here is a bond debt which, in the lifetime of the testator, formed no charge or lien on his estate, how, then, did it become a charge or lien after his death? There is no charge of debts in the will, nor any trust for their payment. It is said that it must be a charge, because, upon a judgment or decree, payment would be enforced out of the testator's estate: it is quite true that payment would be so enforced, but that is by force of the judgment: it is no more than would have resulted from a judgment or decree against the testator himself in his lifetime; but here there is no judgment. The class of cases like Watkins v. Cheek has no application, for there there was a trust created by the testator, here there is none. It is said that the settlement was fraudulent and void under the statute of Elizabeth; but that statute has no application to a case where full valuable consideration is given for the property. The consideration of marriage has always been held to be sufficient to support any settlement. In a case before Sir William Grant, a stockbroker, greatly indebted, married his mistress, and settled his property on her: it was supported even against his creditors. (a) If Sir Watts Horton himself had settled the estate on the marriage of his daughter, could it have been impeached by his creditors? How, then, does it differ that the heiress, contracting with an intended husband, made the settlement? The value of the estates exceeded the testator's debts, and by the settlement (a) Campion v. Cotton, 17 Ves. 263. 1843. RICHARDSON v. HORTON. 1843. RICHARDSON v. HORTON. tlement a provision was made for their payment, which at the time was ample, and it is not now shown that it is insufficient. The statute of the 3 & 4 William and Mary (a) does not affect the question. Previous to that act, the devisee was not liable to the testator's debts, and the creditors might also be defeated by the alienation of the heir before action brought. To remedy this, the act avoids the devise as against the creditor, and enables him to maintain an action jointly against the heir and devisee. By the 5th section the heir is made answerable for the land aliened by him before action, and a similar liability is imposed on the devisee. The statute gives these remedies to the creditor, but in no way permits him to follow the estate into the hands of a purchaser for valuable consideration. This case was decided in Spackman v. Timbrell (b): there A., who was a trader at his death, and indebted by specialty and simple contract, devised freehold estates to his son in fee. The son, on his marriage, settled the estates on his wife and children, and afterwards died. It was held that the 3 & 4 W. & M. c. 14. and the 47 G. 3. c. 74. sess. 2. did not charge the real assets, descended or devised, with the ancestor's debts, but made the heir or devisee personally liable, to the value of the assets; and, therefore, that the son's widow and children were entitled to hold the estates, discharged from the debts of the father. In that case the settlement recited the will and the devise for payment of the debts; and the notice thereby given was relied on in argument, but did not prevail. Again, in Mathews v. Jones (c), a marriage settlement of the ancestor's estate by (a) Repealed and re-enacted by the 11 G. 4. and 1 W. 4. c. 47. (b) 8 Sim. 253. by the heir, who was also devisee, was supported against a bond creditor of the ancestor. Notice of the testator's debts can make no difference; for if the debt be not a charge on the estate, no notice can make it so. Lastly, the case now attempted to be made is not stated on the pleadings, and the parties have had no opportunity of meeting it. Mr. Turner in reply. To take a case out of the statute of Elizabeth, not only must the conveyance be on good consideration, but bonâ fide, and without notice of" covin, fraud, or collusion." The following cases were referred to in the course of the argument:- Townsend v. Westacott (a); Partridge v. Gopp (b); Braithwaite v. Britain (c); Ex parte Morton (d); Rogers v. Rogers. (e) The MASTER of the ROLLS. It is clear, that the specialty creditors of Sir Watts Horton might, on his death, by adopting the proper proceedings, have obtained payment out of his real estates; but it is equally clear that the bond debts did not of themselves constitute a lien or charge upon those estates. The estates might have been made available: the heir, to the extent of assets, was bound to pay specialty debts; and, by the statute, the devisee is placed, substantially and for all practical purposes, in the same situation as the heir. the What has occurred is this: -The estates appropriated by the settlement to the payment of the debts have been 1843. RICHARDSON v. HORTON. |