1843-Richardson v. Horton.

statutes, the estate still remains liable to the claim of the bond creditors.

The heir at law, like an executor, must have the means of selling the real estate for the purpose of providing a fund for the discharge of the specialty debts, and a bona fide sale for that purpose would be protected; but by settling the property on the heiress's family, no fund could possibly arise for the discharge of the debts its object, on the face of it, was not to pay the debts, but to exclude the rights of the creditors. The settlement recites that a considerable sum was due on account of the debts of the testator, and that the personal estate was insufficient for the payment, and yet it is attempted, by that deed, to withdraw the real estate, which was the only means of payment, from the creditors. Every person taking under the settlement had notice that the heiress was improperly dealing with the estate for her own benefit, and not for the purpose of raising a fund for payment of the specialty debts. They are, therefore, bound by that notice, and can claim no more than what, in equity, the settlor herself was entitled to.

*That a conveyance by the heir may be fraudulent [*117] 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) 5 Reports, 60, a.

(b) 1 Eq. Ca. Abr. 149, p. 6.

1843.-Richardson v. Horton.

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 pay[*118] ment of debts and legacies, as it would have been in the hands of the executor. The same principle is applied to

real estate." Watkins v. Cheek.(a)

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

(a) 2 Sini. & S. 199.

(b) 2 Anst. 506.

(c) Ib. p. 511.

(d) 8 Sim. 253.

(e) 2 Dr. & War. 356.

(g) 1 Y. &. C. (N. C.) 183.

1843.-Richardson v. Horton.

charged by will or otherwise on an estate, but is a simple legal liability to be enforced by *action or suit against the [*119] 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 stock broker, 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 provision was made for their [*120] 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, (b) does not affect the question. Previous to that act, the devisee was not liable to

(a) Campion v. Cotton, 17 Ves. 263.

(6) Repealed and re-enacted by the 11 G. 4, and 1 W. 4, c. 47

1843.-Richardson v. Horton.

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 :(a) there A., who was a trader at his death, 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, (b) a [*121] marriage settlement of the ancestor's estate *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 bona fide, and without notice of "covin, fraud, or collusion."

(a) 8 Sim. 253.

(b) 2 Anstr. 506.

1843.-Richardson v. Horton.

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 lieu or charge upon those estates. The estates might have been made available: the heir, to the extent of assets, was bound to pay the specialty debts; and, by the statute, the devisee is placed, substantially and for all practical purposes, in the same situation as the heir.

What has occurred is this:-The estates appropriated

by the settlement to the payment of the debts have *been [*122] sold, and after allowing all proper deductions, the sum

of 51107. remains for the payment of debts, amounting to 71741. The fund being insufficient, the question is, whether the creditors have a right to resort to the estate settled by the deed of 1813?

The question arises in a very singular form. It is strange, if it was intended to raise a question so important as this, that a distinct declaration should not have been asked, and still more strange, that it should not have been provided for by the decree. It is now argued that this settlement, though in consideration of marriage, was executed under such circumstances, that it cannot be held to have been made bona fide. If the plaintiff sought to set it aside on the ground that it was not executed bona fide, would it not be proper that all the circumstances from which the mala fides was to be inferred should be stated? and ought not its invalidity to have been expressly charged by the bill, in order that the defendants might have the means of meeting it?

The master, in proceeding under the decree, has thought that the settlement was a valid alienation, and that the settled estates

(a) 2 Beav. 340, and 4 Beav. 58.
(b) Ambl. 596.

(d) 5 Ves. 449.

(e) 6 Sim. 364.

(c) 1 Keen, 206.