chaser who has notice of a prior voluntary grant will take subject to the rights of the voluntary grantee.1 But the rule upon this subject is not uniform throughout the United States.2

It is essential to the operation of the statute that both conveyances should be made by the same person. An heir or devisee cannot, by a conveyance for value, defeat a voluntary settlement made by his ancestor or testator; and if the voluntary grantee has conveyed for value, his alienee can hold as against a subsequent purchaser from the original grantor.3

4

A mortgagee is a purchaser within the statute. It need hardly be added, that as between the parties to the transaction the voluntary conveyance will be good."

252. The statute of 27 Elizabeth, c. 4, does not apply to personal chattels; but as it is in affirmance of the common law, it would seem, that its principles ought to be applied, with the modifications rendered necessary by the difference in the subject matter, to the transfers of personal property. The possession of chattels generally follows the title; indeed, a change of possession is, in general, necessary in order to render the sale valid as against the creditors of the vendor; while delivery is essential to a valid gift. A man, therefore, can rarely be deceived as to the rights of the donee of a chattel; while he may very well be misled as to the rights of a voluntary alienee of real estate. Hence, the donee of personal property ought not, generally, to be disturbed in his possession by a subsequent purchaser, because it is the latter's own folly to buy that of which another has the possession. When, however, the donee or even the vendee of chattels suffers them to remain in the possession of the former owner, and the latter sells them again to a bona fide purchaser without notice, the title of such purchaser cannot be impeached.8

1 Lancaster v. Dolan, 1 Rawie, 231; Dougherty v. Jack, 5 Watts, 456; Mayor v. Williams, 6 Maryl. 242; 1 Am. Lead. Cas. 51.

5 See ante, p.

6 Hudnal v. Wilder, 4 McCord, 294; though see Jones v. Croucher, 1 Sim. & S. 315; Bohn v. Headley, 7 Harris &

2 See Sterry v. Arden, 1 Johns. Ch. Johns. 257; Sewall v. Glidden, 1 Judges 261; and 1 Am. Lead. Cas. 51.

3 Kerr on Fraud and Mistake, 229. 4 Lancaster v. Dolan, 1 Rawle, 231; Lewis Love's Heirs, 2 B. Mon. 345; Ledyard v. Butler, 9 Paige, 132; Clapp v. Leatherbee, 18 Pick. 131.

(Alab.), 52, 61; 1 Am. Lead. Cas. 53.

7 Twyne's Case, 1 Smith's Lead. Cas. 33. 8 See notes to Lickbarrow v. Mason, 1 Smith's Cas. 1147.

253. The next species of fraud upon third parties, which demands attention, is that which is known as fraud upon marital rights, whereby the expectation by a man of an interest in the property of his intended wife is defeated.

The leading authority upon this subject is Strathmore v. Bowes,' in which the opinion of Lord Thurlow contains a clear statement of the general doctrine, while the decision itself establishes an important qualification.

The doctrine in question may be stated to be that if a woman during the course of a treaty of marriage makes a voluntary2 conveyance of any part of her property, without notice to her intended husband, such conveyance will be treated, in equity,3 as fraudulent and void as against him, and will be set aside by a chancellor on the husband's application."

The plainest case of fraud of this kind is, of course, that in which active deception takes place. If, during the treaty for marriage, a woman expressly holds herself out to her intended husband as entitled to property which will become hers upon marriage, and then makes a settlement without his knowledge, she is guilty of actual fraud, and the settlement cannot stand.5 It is clear, also, that the same rule exists if there is a suppression of the truth, and merely a concealment of the settlement, although there may be no active representations that the property is to be subject to marital rights.

254. A question, however, naturally arises here, upon which

11 Lead. Cas. Eq. 325. See, also, Wilson v. Daniel, 13 B. Mon. 351; Cheshire v. Payne, 16 Id. 618; Duncan's Appeal, 7 Wright (Pa.), 67; Perry on Trusts,

213.

2 The rule will not apply to a conveyance for value. See Blanchet v. Foster, 2 Ves. Sr. 264.

The conveyance cannot be treated as void at law. Logan v. Simmons, 1 Dev. & Bat. (Law) 13, 16; Doe v. Lewis, 11 C. B. 1035. At all events it is not necessarily fraudulent. Doe v. Lewis.

See Chambers v. Crabbe, 34 Beav. 457; Terry v. Hopkins, 1 Hill. Ch. 1;

Waller v. Armistead's Admrs., 2 Leigh, 11; Manes v. Durant, 2 Rich. Eq. 404; McAfee v. Ferguson, 9 B. Mon. 475; Williams v. Carle, 2 Stockt. Ch. 543; Duncan's Appeal, 7 Wright (Pa.), 67; Linker v. Smith, 4 Wash. C. C. 224; Tucker v. Andrews, 13 Maine, 124.

5 See England v. Downs, 2 Beav. 528; Logan v. Simmons, 3 Ired. Eq. 487.

6 England v. Downs, 2 Beav. 528. See, however, Thomas v. Williams, Mos. 177; De Manneville v. Crompton, 1 V. & B. 354, where silence, under the circumstances, was held to be no fraud.

there has been some slight difference of opinion. Suppose the intended husband is entirely ignorant that the woman is possessed of property, and therefore marries her without any expectation that he will acquire any estate by her. In such a case he cannot be said to be disappointed if it turns out that there has been an antenuptial settlement, and can he, therefore, under these circumstances, be heard to complain? This question, however, is now settled in favor of the husband. It is true that he is not deprived of anything which he expected to get, and no anticipations of his are therefore defeated; but, nevertheless, he is deprived of his legal rights, and placed in a position in respect to his wife and her property, which he ought not to occupy, except with his full knowledge and consent.1

But the rule under consideration does not apply to property of the wife to which the marital rights would not have attached; as where, for example, the woman has a life estate to her separate use, to the exclusion of any future husband, with an absolute power of appointment by deed or will, and exercises the power before marriage, by the execution of a settlement on herself.2

255. It was said above that a disposition of her property by a woman about to marry will be sustained if made for a valuable consideration. The consideration, however, must be valuable; for the true rule seems to be (although the law is not, perhaps, free from doubt), that a settlement made upon a meritorious consideration-e. g., for the benefit of the children of a former marriage-will not be good as against the husband.3

The settlement to be fraudulent must be in view of a particular marriage, and it will be so only in respect of the intended husband who was in treaty of marriage at the time of the selling.1

A settlement by a woman will not be set aside if the intended husband has notice of it any time-no matter how short the

1 Goddard v. Snow, 1 Russ. 485; Taylor v. Pugh, 1 Hare, 608; Logan v. Simmons, 3 Ired. Eq. 487. Though see St. George v. Wake, 1 My. & K. 622. See, also, Downes v. Jennings, 32 Beav. 290; Prideaux v. Lonsdale, 1 De G. J. & Sm. 433.

2 Cole v. O'Neill, 3 Maryl. Ch. 174.

3 Blanchet v. Foster, 2 Vesey, 264. Though see Green v. Goodall, 1 Cold. 404.

4 Strathmore v. Bowes, ante.

interval may be before the marriage. Nor does the circumstance that the husband is a minor at the time of the marriage make any difference. He will, if he consents to the arrangement, or has knowledge of it, be precluded from disputing it after he attains his majority.2

If the husband, after the marriage, acquiesces in and confirms the settlement, he cannot afterwards be heard to dispute it.3

A man may, by his conduct before marriage, deprive himself of his right to impeach a settlement made without his knowledge. Thus, where a woman was seduced by her intended husband before marriage, and afterwards made a disposition of the property of which he had no notice, it was, nevertheless, held that under the circumstances he was not entitled to have the settlement set aside.1

The rule which forbids a disposition of property by a woman, in contemplation of marriage, to the injury of the rights of her intended husband, has also been applied to the case of a man conveying his property away in fraud of an intended wife." 256. Another class of frauds upon third parties, comprises those cases in which there is a fraudulent exercise of a power.

A power, in the sense it is here used, is an authority enabling a person, through the medium of the statute of uses, to dispose of an interest vested in himself or some third person. Thus, land may be conveyed to A. in trust for such uses as B. should appoint; or in trust for such person or persons generally as B. should appoint; or in trust for such members of a particular class as children, grandchildren, or the like-as B. should appoint. This right of appointment in B. is called a power. The person who creates the power is the donor; the person by whom it is to be exercised is called the donee of the power, or, when he actually exercises it, the appointor; the person in whose favor the appointment is made is the appointee; and those for

whose benefit the power was intended to be executed are termed the objects of the power.

Powers of this kind are of very frequent occurrence in English marriage settlements, being the ordinary machinery whereby marriage portions are raised, and the distribution of funds among children or other beneficiaries regulated.

It is a cardinal principal in the law of powers that "a person having a power must execute it bona fide for the end designed, otherwise it is corrupt and void." This was the language of Lord Keeper Henley in Aleyn v. Belchier, which is the leading authority upon this subject. If a power is not exercised in good faith, and for the purposes for which it was created, its exercise will be deemed fraudulent in equity, and will be set aside upon a bill filed by a party in interest.

A case in which a power is thus improperly exercised, is said to be a case of "a fraud upon the power."

The plainest case of a fraud upon a power, is where the power is exercised for the personal advantage of the appointor. If a father has a power to appoint among children, and agrees with one of them, for a sum of money, to appoint to him, such appointment would be void. Aleyn v. Belchier, and Lane v. Page,2 are instances in which powers to raise marriage portions have been improperly exercised for the purpose of paying the debts of the appointor, and the appointment has, in consequence, been set aside. The same rule applies to appointments made with a view to obtain the fund appointed through undue influence over the appointee, or with an expectation of the appointee's death and succession to his estate; or to any case in which the motive of the appointor is to acquire any benefit for himself either directly or indirectly."

Again, the appointment will be considered fraudulent and invalid, if it is exercised for the benefit of a stranger, and not for the advantage of the objects of the power; and this will be so although the appointee may be unaware of the fraudulent design of the appointor."