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tion and deceit on other persons not parties to the fraudulent agreement:"_and—“ Particular persons in contracts shall not only transact bona fide between themselves, but shall not transact mala fide in respect to other persons, who stand in such a relation to either as to be affected by the contract or the consequences of it." It is for these reasons, and also by virtue of the statute of Elizabeth, that the voluntary disposal of money by which a purchase is effected, .constitutes, in the case of an insolvent debtor, a fraud; and that thus a sufficient ground is afforded for following it into the land, in the purchase of which it was specifically applied. On this principle too, and on the fact of fraud being established, where partnership property has been applied by one of the partners separately in the purchase of an estate, and it can be specifically traced to that purchase, the estate is considered as partnership [*]property, and becomes liable to the demands of the joint creditors(a).
We may add, if it appear that the insolvent, before the conveyance to his wife or child, had agreed for the purchase in his own name, and that the contract was such as to make him equitable owner; in this case, there would be still stronger ground for disputing the validity of the grantee's title.
Where a purchase is made in the name of a wife or child, at a time when the
pays ney is not indebted, the same reason holds for sustaining its validity against subsequent creditors, as if the estate had previously belonged to the husband
(a) Ex parte' Emly, 1 Rose, 61.
or father, and had been settled by him in the manner supposed. It has accordingly been decided, that, in such case, the title of the wife or child will prevail(a).
Provisions for a wife or child, by estates brought in their names and conveyed to them, are not, it seems, affected by the subsequent bankruptcy of the real purchaser; provided that at the time when the contract was completed, he was not an insolvent trader within the meaning of the bankrupt laws (b). Formerly, purchases of this kind, by a trader, even in solvent circumstances, could not be supported, the case [*]falling directly within the fifth section of the statute 1 Jac. 1, c. 15(c). But that act is now repealed : and as the statute 6 Geo. 4, c. 16, s. 72, avoids voluntary settlements only where traders are insolvent at the time of making them ; purchases in the name of a wife or child, while the party is solvent, cannot, it should seen, be impeached.
IJ. As to Joint Purchases.-Where an estate paid for by two or more persons is conveyed to them as joint tenants, the survivor becomes at law entitled to the whole property. But in equity this is entirely a question of intention ; which, whether expressly declared or deducible from circumstances, the courts
(a) Fletcher v. Sedley, 2 Vern. 228; Walker v. Burrows, 1 Atk. 490; Proctor v. Warren, Sel. 93 ; Fryer v. Flood, 1 Bro. C. C. Cha. Ca. 78; See 8 Ves. 199, 160; Glaister v. Hewer, 8 Ves. 200.
195 ; 9 Ves. 12; and 11 Ves. (6) Crisp v. Pratt, Cro. Car. 377 ; Brown v. Bellaris, 5 Madd. 548; 7 Vin. Abr. 97, pl. 2. 53.
(c) Tucker v. Cosh, Style,
will effectuate, and for that purpose confine the survivorship to the mere legal title, or' allow it to carry the beneficial interest also.
In the absence of other particular indications of intent, the proportions in which the purchase money was advanced, is considered a circumstance sufficient for the foundation of a general rule. If the purchase money were advanced in equal shares, it is presumed that the jus accrescendi was contemplated : if in unequal shares, that it was not adverted to.(1)
The reason for allowing the legal right of the survivor to prevail, where the purchase money is. advanced in equal portions, is the probability which that [*]circumstance, taken in connexion with the nature of the tenancy, affords, that each intended to purchase to himself, and give to the other, a chance of succeeding to the entirety(a). And this principle, 'we may remark, obtains not only in regard to purchases of the fee, but also to purchases of leaseholds for lives renewable (6), or for terms of years(c). Nor does the rule continue of force only while the legal estate remains in the parties : the beneficial interest
(a) See York v. Eaton, 2 Freem. 385 ; York v. Eaton, 2 Freem. 23 ; Lake v. Gibson, 1 Eq. Abr. 23. 291, pl. 3; Rigden v. Vallier, 3 (c) Taylor v. Fleming, cited Atk. 735 ; 2 Ves. 258, S. C. 2 Freem. 23; Jeffereys v. Small,
(6) Moyse v. Gyles, 2 Vern. 1 Vern. 217; also 1 Ves. jun. 434.
(1) Randall v. Phillips, 3 Mason, 378. Vide Appleton v. Boyd, 7 Mass. 131, Goodwin v. Richardson, 11 Mass. .469. Cuyler v. Bradt, 2 C. C. E. 326.
will survive, though they afterwards convey to a trustee; provided, at least, no design be manifested to effect a severance(a)(1).
The same principle likewise applies to joint agreements for purchase. Thus where two persons agreed for the purchase of an estate to them and their heirs, and paid a deposit in equal moieties, but before the conveyance was executed, one of them died; on a bill filed by the heir of that person to participate in the benefit of the agreement, Sir W. Grant, M. R., held, that the contract for purchase being joint, and the advances equal, the vendees must be considered as having been joint tenants, and that the defendant consequently had succeeded to the whole interest. His Honour seemed also to be of opinion, that had the advances been unequal, that circumstance would not have been decisive against the joint tenancy ; for it would have been [*]enough, if before the completion of the purchase, the parties had contributed equally. (6)
An exception, however, to the rule now under consideration occurs, where a joint purchase is made by partners for the purposes of their trade (c), or by persons embarking in an adventure, under an engage
.(a) Rea v. Williams, Sugd. on9 Ves. 500; Jackson v. Jackson, Purchases, App. No. 21, 6th edit. ib. 591. If it be doubtful that the
(6) Aveling v. Knipe, 19 Ves. property was bought to carry on a 441.
trade, an inquiry will be directed (c) See 1 Ves. jun. 435; 1 Swans. before the Master ; 1 Ves. jun. 435. 508, 521; also Balmain v. Shore,
(1) Dolf v. Bassett, 15 Johns. R. 21.
ment to divide the profits, or sustain the loss, equally(a). In such cases, though the estate survive at law, it will not in equity. There it is accounted a portion of the stock in trade ; and the parties, by analogy to the common law principle, which, as to partnership effects, allows no jus accrescendi (6), are adjudged to be entitled as tenants in common (1).
Leases taken jointly, and, by parity of reason, lands purchased absolutely with a view to building, are likewise regarded as partnership property, and do not therefore survive beneficially (c): and the rule appears to be the same in regard to farms let to two or more persons for the usual purposes of husbandry(d); for, in all these cases, the intention is manifest to make the matter a partnership concern. In like manner, although a lease be such as, when first granted, would vest absolutely in the survivor, the fact [*]of money being afterwards laid out in agricultural improvements will, in equity, make the interest several, and prevent survivorship ; the subsequent conduct of the parties being considered indicative of their original object (e). But on the other hand, where a partnership clearly appears not to have formed the inducement to a joint purchase, an expenditure afterwards, in repairs or in improvements, will
(a) Lake v. Gibson, 1 Eq. Abr. (d) Elliot v. Brown, 9 Ves. 290, pl. 3; 3 P. Wms. 158, S. C. 597, cited. Sed vide Jeffereys v.
(6) Co. Litt. 182 a; 3 Vez. 631. Small, 1 Vern. 217. (c) Lyster v. Dolland, 1 Ves.
(e) See 1 Ves. jun. 434. jun. 431, 434-5.
(1) Coles v. Coles, 15 Johns. R. 159. Seldon y. Hitchcock, 2 C. R. 166.