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Fraud.

the seller is bound to make good the representation. Ibid.

56. If there be any one ground upon which a court of equity affords relief, it is an allegation of fraud, proved or admitted. Atkins v. Dick & Co., 14 Peters, 114.

46. Where a creditor, having levied on the personal property of his debtor, instead of selling the property as soon as it can be reasonably 57. Courts of equity will permit independent done, allows the debtor to retain possession of it agreements which go to show that a deed, on its for an unreasonable length of time, such execu-face absolute, was intended only as a mortgage, tion is fraudulent as respects a subsequent one; to be set up against the express terms of the and the property may be levied on by, and sold deed, only on the ground of fraud; considering under, a subsequent one. United States v. Co-it a fraudulent attempt in the mortgagee, connyngham, Wallace's C. C. R. 178.

47. Actual possession is not necessary to a transfer of personal property; nor is the want of it even an indicium of fraud, where, from circumstances, it cannot be obtained. Possession of goods at sea, by the master, is the possession of whosoever is, or may become the owner of them. United States v. The Delaware Insurance Co., 4 Wash. C. C. R. 418.

48. It is no objection to the vesting of the right of property in the consignee for value, or whose debt it is to secure, that the goods are, by agreement, to be at the risk and for account of the consignor. Ibid.

49. A right of one person to a chattel, and possession in another, under a contract which does not entitle the former to the present possession, is no badge of fraud. The Atlantic Insurance Co. v. Conard, 4 Wash. C. C. R. 662.

50. Fraud is actual or constructive. The former is generally a question of fact; the latter of law, after the facts are found. The Postmaster-General v. Reeder, 4 Wash. C. C. R. 678.

51. Courts of common law and equity have concurrent jurisdiction in cases of fraud. Lessee | of Rhoades and Snyder v. Selin et al., 4 Wash. C. C. R. 715.

52. Where a matter is adjudicated by a court of peculiar and exclusive jurisdiction, the sentence is conclusive, where the same matter comes incidentally before another court, as to the matter decided; not only between the same parties, but strangers, unless it can be impeached for

fraud. Ibid.

53. Upon this principle, a fraudulent sale and conveyance by an administrator, under a decree of the orphans' court, though the same may be confirmed by a decree of the circuit court, may be questioned, and declared bad, in an ejectment, or other action, as well at law as in equity. Ibid.

trary to his own express agreement, to convert a mortgage into an absolute deed. And it is equally a fraud on the part of a debtor, to attempt to convert his contract as principal into that of a surety only. Spriggs v. The Bank of Mount Pleasant, 14 Peters, 201.

58. Fraud will vitiate any, even the most solemn transactions; any asserted title founded upon it, is utterly void. The United States v. The Amistad, 15 Peters, 519.

59. Will not take a case out of the statute of limitations. Mitchell v. Thompson & Williams, 1 M'Lean's C. C. R. 104.

60. As between parties who enter into a fraudulent combination against an individual, no relief will be given, either in a court of law or chancery. Warburton & King v. Aken & Little, 1 M'Lean's C. C. R. 460.

61. Fraud must be clearly proved. v. Turner, 2 M'Lean's C. C. R. 519.

Hubbard

62. A mortgage on a large amount of property for the payment of ninety thousand dollars, where but four thousand dollars were due to the mortgagees, is fraudulent as against creditors. Ibid.

63. Although there may have been fraud or deception in obtaining the note, yet if the holder had no notice of it, the equities between the original parties are not open. Riley v. Van Amringe, 2 M'Lean's C. C. R. 589.

64. Where the plaintiffs were manufacturers, in England, of "Taylor's Persian thread," and the defendants in America imitated their names, trade marks, envelopes and labels, and placed them on thread of a different manufacture; it was held, that it was a fraudulent infringement by the defendants of the right of the plaintiff, for which equity would grant relief, whether other persons had or had not done the same. Taylor v. Carpenter, 3 Story's C. C. R. 458.

65. A fraud was committed in the drawing of 54. A liberal construction should be given to a lottery, by which a ticket was represented to the clause of the Virginia statute for the sup- have drawn a prize; and on the ticket being pression of fraud. This is the well established presented at the office where prizes were paid, rule in the construction of the statute of Eliza- the sum of twelve thousand five hundred dol beth, which the first section of the Virginia sta-lars was paid to the holder of the ticket. It was tute substantially adopts. Bank of the United States v. Lee, 13 Peters, 107.

55. If A sells or conveys his land or slaves to B, and then produces to another his previous paper title, and obtains credit on the goods or lands, for pledging them for money loaned; and if the true owner stands by, and does not make his title known, he will be bound to make good the contract, on the principle that he who holds his peace when he ought to have spoken, shall not be heard now that he should be silent. He is deemed, in equity, a party to the fraud. Ibid. 66*

afterwards discovered that the ticket had been fraudulently substituted in the drawing of the lottery, and the sum paid was recovered from the owner of the ticket. Cutts v. Phalen et al., 2 Howard. 378.

FRAUDULENT CONVEYANCE.

1. An absolute bill of sale of personalty, by an insolvent, is fraudulent against creditors, unless possession of the property assigned or trans

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Fraudulent Conveyance.

ferred accompanies or follows the deed. The absence of such possession is not merely evidence of fraud, but is a circumstance, per se, which makes the transaction fraudulent. Hamilton v. Russell, 1 Cranch, 309; 1 Cond. Rep.

318.

conveyances not made on a consideration deemed valuable in law, as against previous creditors. But it does not apply to subsequent creditors, if the conveyance is not made with a fraudulent intent. Ibid.

11. A voluntary settlement in favour of a wife 2. The act of assembly of Virginia, which go- and children is not impeachable on that ground verns this case, appears, as far as respects fraud-alone, by subsequent creditors. The circumulent conveyances, to be intended to be coextensive with the acts of 13 and 27 Elizabeth; and those acts are considered as only declaratory of the common law. The decisions of the English judges, therefore, apply to this case. Ibid.

3. The fact that the grantor retains possession of property which he has conveyed, is not an evidence of fraud, where the conveyance, from its terms, is to leave the possession in the vendor. United States v. Hooe et al., 3 Cranch, 75; 1 Cond. Rep. 458.

4. A deed made upon an adequate and valuable consideration, which is actually paid, and the change of property is bona fide, or such as it purports to be, cannot be considered as a conveyance to defraud creditors. Wheaton v. Sexton's Lessee, 4 Wheat. 503; 4 Cond. Rep. 519.

stances, that the property thus conveyed, constituted a large portion of the estate of the grantor, and that he failed within a short period after the date of the conveyance, may awaken suspicion, and strengthen other circumstances; but, taken alone, are not proof of fraud. Ibid.'

12. A debtor has a right to prefer one creditor in payment; and it is no objection to the validity of an assignment for this purpose, that it was made by the grantor and received by the grantee, a mere trustee to execute this design, in the hope and expectation, and with a view of preventing the creditor thus preferred from instituting a prosecution for forging the instruments on which the debt originated, if the creditor had done nothing to excite that hope; and the assignment was made without his knowledge of the motive which influenced the grantor, or was not afterwards assented to by him under some engagement, express or implied, to suppress or forbear the prosecution. Brooks v. Marbury, 11 Wheat. 78; 6 Cond. Rep. 223.

5. A debtor has a right to prefer one creditor to another; and his private motives in giving this preference, provided the preferred creditor has done nothing improper, cannot annul this right. But any unlawful consideration, moving 13. A grant or assignment of goods and chatfrom the preferred creditor to induce this prefer-tels is valid between the parties, without actual ence, may avoid the deed which gives it. Marbury v. Brooks, 7 Wheat. 556; 5 Cond. Rep. 344. 6. It is not necessary to the validity of such a deed, that the creditors, for whose benefit it is made, should have notice of the execution of the deed, provided they afterwards assent to the provisions made for their benefit. Ibid.

7. Nor is it any objection to the validity of the deed, that it was made by the grantor, in the hope and expectation that it would prevent a prosecution for a felony, connected with the transactions with his creditors; if the favoured creditors have done nothing to excite that hope, and the deed was not made with their concurrence, and with a knowledge of the motives which influenced the grantor, or was not wards assented to by them under some express or implied engagement to suppress the prosecution. Ibid.

delivery; and the property passes immediately upon the execution of the deed. But, as to creditors, the title is not considered as perfect, unless possession accompanies and follows the deed. Meeker et al. v. Wilson, 1 Gallis. C. C. R. 419.

14. In general the want of possession is not merely an evidence or badge of fraud, but constitutes in itself a fraud, which renders the transaction, as to creditors, void. Ibid.

15. The statute of 13 Eliz. ch. 5, is now fully settled to be only an affirmance of the common law. Ibid.

16. The rule as to possession, is not applicable when the possession of the grantor is conafter-sistent with the deed, or where the property conveyed is, at the time of the conveyance, abroad and incapable of delivery. In the latter case, the title is complete, provided the grantee takes possession within a reasonable time after the property comes within his reach. If he does not, the same inference of legal fraud arises as if the property had been originally capable of immediate delivery, and the possession had remained unchanged. Ibid. See also Conrad v. The Atlantic Ins. Co., 1 Peters, 449.

8. Nor will it be invalidated by the fact, that the trustee, to whom the conveyance is made, being the father-in-law of the debtor, received the conveyance with a view of concealing the felony, and preventing a prosecution of his sonin-law, provided it was not executed with the concurrence of the cestui que trusts, and a knowledge on their part of the motives which influenced the trustee, or was not afterwards assented to by them under some engagement to suppress the prosecution. Ibid.

9. A post-nuptial voluntary settlement, made by a man, who is not indebted at the time, upon his wife, is valid against subsequent creditors. Sexton v. Wheaton, 8 Wheat. 229; 5 Cond. Rep.

419.

10. The statute 13 Elizabeth, ch. 5, avoids all

17. If there has been a fraudulent concealment of the assignment, or gross negligence, such as establishes an original fraudulent design, the assignment is void in toto. It is void, ab initio, as to creditors, injured by the fraud, as to all the property included in it. But if the as signment was bona fide, mere negligence, as to taking possession of a particular part of the property assigned, would not take away the title of the assignor to other property, as to which there

Fraudulent Conveyance.

had been due diligence. The question, as to the | with notice. These decisions do not maintain validity of such an assignment, reduces itself to that a transaction valid at the time, is rendered a question of good faith, valuable consideration, invalid by the subsequent act of the party. They and reasonable diligence. D'Wolf v. Harris, 4 do not maintain that the character of the transMason's C. C. R. 537. action is changed; but that testimony afterwards 18. An insolvent debtor has a right to prefer furnished, may prove its real character. The one creditor to another in payment, by an assign- subsequent sale of the property is carried back ment made bona fide; and no subsequent attach-to the deed of settlement, and considered as ment, or subsequently acquired lien will avoid such assignment. Spring et al. v. S. C. Insurance Company et al., 8 Wheat. 268; 5 Cond. Rep. 434. 19. Such an assignment made, includes choses in action, as a policy of insurance; and will entitle the assignee, in case of loss, to receive from the underwriters the amount insured: and it is not necessary that such an assignment should be accompanied by an actual delivery of the policy.

Ibid.

20. Every debtor has a legal right to assign property for the security of debts due by him; and so far from such act being reprehended by the law, it is justified and approved. Pearpoint and Lord v. Graham, 4 Wash. C. C. R. 232.

21. In general, the want of possession is not merely an evidence or badge of fraud; but constitutes, in itself, a fraud, which renders the transaction, as to creditors, void. Meeker v. Wilson, 1 Gallis. C. C. R. 419.

proving that deed to have been executed with a fraudulent intent to deceive a subsequent purchaser. Cathcart et al. v. Robinson, 5 Peters, 264.

28. A subsequent sale, without notice, by a person who had made a settlement not on valuable consideration, was presumptive evidence of fraud; which threw on those claiming under such settlement the burden of proving that it was made bona fide. This principle, therefore, according to the uniform course of the supreme court, must be adopted in construing the statute of the twenty-seventh of Elizabeth, as it applies to this case. Ibid.

29. Even if the grantor in deeds be justly chargeable with fraud, but the grantees did not participate in it; and when they received their deeds had no knowledge of it, but accepted the same in good faith; the deeds upon their face purporting to convey a title in fee, and showing the nature and extent of the premises: there can be no doubt the deeds do give colour of title under the statute of limitation. Gregg v. The Lessee of Sayre and Wife, 8 Peters, 244.

22. Without undertaking to suggest, whether, in any case, the want of possession of the thing sold, constitutes, per se, a badge of fraud; or is only, prima facie, a presumption of fraud; it is sufficient to say, that in case even of an absolute 30. G., the executor of his father, who had sale of personal property, the want of such pos-devised his estate to G. and his other children, session is not presumption of fraud, if possession sold the estate and became himself the pur cannot, from the circumstances of the property, chaser of it; and in order to secure the portions be within the power of the parties. Conrad v. of the other devisees, who were minors, conThe Atlantic Ins. Co., 1 Peters, 449. fessed a judgment, June 1, 1819, on a promissory 23. In cases where the sale is not absolute, note, in favour of two persons, without their but conditional, the want of possession, if con- knowledge, in a sum supposed to be sufficient sistent with the stipulations of the parties, and, to be a full security for the amount of the pora fortiori, if flowing directly from them, has tions of the minors. The judgment was kept in never been held to be, per se, a badge of fraud. | full operation by executions regularly issued Ibid. upon it; so as, under the laws of South Carolina, to bind the property of G. He was then engaged in mercantile pursuits, and had other property than that so purchased by him. G. afterwards became insolvent, and the claims of the devisees of his father, under the judgment, were contest25. Notice to a judgment creditor, of an as-ed by his creditors as fraudulent; the plaintiffs, signment of the property of his debtor, where possession had not been taken under the assignment, does not affect the right of the sheriff or the creditor to seize the property in execution, as the property of the assignor. Ibid.

24. If, at the time of the transfer, the property was out of the country, possession must be taken within a reasonable time after its return, or the grant will be held fraudulent. Meeker v. Wilson, 1 Gallis. C. C. R. 419.

26. In proceedings to set aside a conveyance of real estate, made in fraud of creditors, it is not necessary to make a mortgagee of the estate a party, his rights under the mortgage not being brought in question. Venable et al. v. The Bank of the United States, 2 Peters, 107.

27. A conveyance of the whole of his property by a husband to trustees, for the benefit of his wife and his issue, is a voluntary conveyance; and is at this day held by the courts of England to be absolutely void under the statute of the twenty-seventh of Elizabeth, against a subsequent purchaser, even although he purchased

in the judgment, having no knowledge of it when it was confessed, the amount of the sum due to the co-devisees not having been ascertained when it was confessed, no declaration of trust having been executed by the plaintiffs, and false representations of his situation having been made by G. after the judgment, whereby his creditors were induced to give him time on a judgment confessed to them subsequently. The judgment of June 1, 1819, was held to be valid, and the plaintiffs in that judgment entitled to the proceeds of the sales of the estate of G., for the satisfaction of the amount actually due to the co-devisees by G. Bank of Georgia v. Higginbottom, 9 Peters, 48.

31. Upon principle and authority, to make an antinuptial settlement void as a fraud upon creditors, it is necessary that both parties should

Fraudulent Conveyance.

concur in, or have cognizance of the intended fraud. If the settler alone intend a fraud, and the other party have no notice of it, but is innocent of it; the wife is not, and cannot be affected by it. Marriage, in contemplation of the law, is not only a valuable consideration to support such a settlement, but is a consideration of the highest value, and from motives of the soundest policy, is upheld with a strong resolution. The husband and wife, parties to such a contract, are therefore deemed, in the highest sense, purchasers for a valuable consideration; and so that it is bona fide, and without notice of fraud, brought home to both sides, it becomes unimpeachable by creditors. Magniac v. Thompson, 7 Peters,

348.

32. Fraud may be imputed to the parties, either by direct co-operation in the original design, at the time of its concoction, or by constructive co-operation from notice of it, and carrying the design upon such notice into operation. Ibid.

33. Among creditors equally meritorious, a debtor may conscientiously prefer one to another; and it can make no difference that the preferred creditor is his own wife. Ibid.

34. Marriage articles or settlements are not required by the laws of New Jersey to be recorded, but only conveyances of real estate: and as to conveyances of real estate, the omission to record them avoids them only as to purchasers and creditors, leaving them in full force between the parties. Ibid.

35. A purchase was made of one hundred and ninety-eight boxes of sugar, for which certain acceptances, drawn by the purchaser, and endorsed and accepted for his accommodation, were to be given to secure payment. The sugars were to be shipped on board of a ship belonging to the purchaser, then lying in the same port, and bound on a foreign voyage. The acceptances were to be delivered upon the return of the purchaser from Boston: he failed, and assigned his property. During his absence, a part of the sugars were put on board of the ship. After his return, he kept his own failure a secret, and also the failure of his endorsers and acceptor, and procured a delivery of the residue of the sugars, on the faith that the acceptances were to be duly given. Held, by the circuit court, that if the delivery of the sugars, under these circumstances, was not intended by the parties to be an absolute delivery, but a delivery on condition only, that the terms of the contract were complied with; then the vendor might reclaim the sugars, and his property in them was not gone. It was further held, that if the delivery of the sugars, after the failure, was proved by a fraudulent suppression of that fact, the delivery, as to that portion, was altogether without any legal validity, whatever might be the case as to the other parcels. D'Wolf, jr. v. Babbett, 4 Mason's C. C. R. 289.

36. Want of possession of real estate is not, as it is of personal estate, a presumption of fraud. Pettiplace v. Sayles, 4 Mason's C. C. R. 312.

37. Where A made an assignment of a vessel it sea, in trust to B, to indemnify B for endorse

ments, and also to pay the demands of certair other creditors named in the conveyance: Held, that the taking possession of the vessel by B, in a reasonable time and manner after her return, would be a sufficient delivery and possession to support the assignment; although the creditor of it should attach the vessel before such possession was attained: Held, also, that it was not necessary to the validity of the assignment, that the creditors should be technical parties to it, nor that their assent should in any manner be given to it at the time of its execution, if they assented before any attachment of the property. Held, further, that the assignment being for the benefit of the preferred creditors unconditionally, and without any stipulation for a release or otherwise, the law would, in such a case, presume the assent of the creditors. Wheeler v. Sumner, 4 Mason's C. C. R. 183.

38. If a marriage contract is executed, the wife is a purchaser, and the contract is valid though the husband was in debt at the time. Magniac v. Thompson, Baldwin's C. C. R. 353.

39. It is a general principle, that a voluntary conveyance, made by a person indebted at the time, is void as to the creditors whose debts existed when the gift was made. But, though the fact of the donor's being indebted at the time of such voluntary conveyance, is a strong badge of fraud; yet, where the donor's fortune was ample, and a gift made by him to his daughter at her marriage was comparatively trivial, and the husband received and retained possession of the subject of the gift; though the donor afterwards became insolvent, the court refused to set aside the gift as fraudulent; a reasonable advancement made under such circumstances not being embraced by the statute of frauds. Hopkirk v. Randolph et al., 2 Brockenb. C. C. R. 132. See also 7 Peters, 204.

40. Query, How far the intervening marriage of the daughter would affect a question, as between the creditors of the donor, and the husband of the daughter? Would the subsequent or contemporaneous marriage of the daughter render valid a gift which, independent of that marriage, would be void as to the antecedent creditors of the donor? It seems, that if the gift should be considered, in any fair construc tion, as the inducement to the marriage, the marriage would give validity to a gift, which, otherwise, would be void as to the creditors. Ibid.

41. It seems, that where a father executes a voluntary bond to his son-in-law, the obligee will not be held responsible to the prior creditors of the father, for the money actually received in payment, in whole or in part, of the bond; such voluntary bond not being within the statute of frauds. lbid.

42. If several voluntary conveyances are made to different individuals, which are fraudulent as to creditors, the donees will not be held liable only for the proportions which their respective gifts bear to the debts of the donor, but the whole of every such gift will be subject to the payment of the debts of the donor. Ibid.

43. T. R. conveyed lands to his three sons,

FRAUDULENT CONVEYANCE.

Fraudulent Conveyance.

without valuable consideration, who conveyed them away to third persons. Query, Are the lands in the hands of a purchaser, liable to the claim of a creditor of the father? However this may be, the creditor cannot be compelled to proceed against such purchaser; and no decree would be rendered against him, in aid of a volunteer, who was able to pay the debt. Ibid.

44. The statute of frauds avoids all covenous conveyances made with intent to delay, hinder, or defraud creditors, but does not extend to conveyances made on valuable consideration and in good faith; therefore, where husband and wife made a conveyance of land to trustees, for the use and benefit of the wife, in consideration of the wife's relinquishing her right of dower in other lands, for the payment of her husband's debts, although the value of the right of dower was only about a third of the value of the land conveyed for her benefit, yet such conveyance is not absolutely void, but in a court of law must be adjudged to be valid. Wright and Cooke v. Stanard, 2 Brockenb. C. C. R. 311.

50. Notwithstanding a judgment, the court will, where the judgment creditor asks relief against a fraudulent conveyance, look into the original consideration, and give the creditor only what, on the whole, appears due to him. Ibid. 51. A bona fide purchaser, for a valuable consideration, without notice of any fraud in the grant to his vendor, shall hold the estate against the original grantor and his heirs. Dexter v. Harris, 2 Mason's C. C. R. 531.

52. The declarations of the debtor are not evidence to defeat the title of the grantor, under a conveyance alleged to be fraudulent. Magniac and Company v. Thompson, 1 Baldwin's C. C. R. 357.

53. A contract or conveyance, in consideration of a future marriage, is within the sixth section of the statute of 13 Elizabeth, if bona fide, and without notice of fraud. Marriage is a consideration as valuable as money, if bona fide, &c. Ibid.

54. If a contract before marriage could be enforced at law or in equity, the voluntary performance by the husband is as valid as if done under a judgment or decree, and is as good against creditors who have no lien. Ibid.

45. The circuit court, notwithstanding the restrictive clause in the judiciary act of 1789, ch. 20, sec. 11, has jurisdiction in a suit in equity 55. Where, by the marriage articles, the husbrought by a judgment creditor against his debtor and others, (they being citizens of different band was to erect a house and furnish it as he states,) to set aside conveyances made in fraud thought fit, an indiscreet expenditure for furniof creditors, although the ground of the judg-ture is not, per se, fraudulent against creditors, ment was a negotiable chose in action, on which, unless it is so extravagant as at first blush to Ibid. 364. before judgment, a suit could not have been indicate a fraudulent motive. The creditors of maintained in such court. Bean v. Smith, 2 Ma- the husband may take the excess. son's C. C. R. 252.

46. Where, in Rhode Island, a judgment debtor had conveyed his real estate to defraud his creditors, and had afterwards been committed to jail, and been discharged from imprisonment on taking the poor debtor's oath under the laws of that state, which could only be obtained by a person having no property to support himself in jail, or to pay prison charges, it was held that a bill in equity being to set aside the fraudulent conveyance, and to charge the real estate with the judgment debt, notwithstanding, by the laws of that state, while the debtor was alive, and lived within that state, such real estate would not be directly liable to be taken into execution. Ibid.

47. Where a conveyance has been made with the meditated intent to defraud creditors, it should not be permitted to stand as security in the hands of the grantee, for advances made on account of such conveyance to the grantor. Ibid.

48. A bona fide purchaser, without notice from a grantee, to whom property has been conveyed to defraud creditors, is entitled to hold the same against the creditors of the grantor. Ibid. 49. A bill in equity lies in the circuit court, to set aside conveyances made in fraud of creditors; (the parties being citizens of different states.) for there is not, in the proper sense of the term, "a plain, adequate, and complete remedy" at law, within the meaning of the sixteenth section of the judiciary act of 1789, ch. 20, which is merely affirmative of the general doctrines of courts of equity. Ibid.

56. Where the sum stipulated by articles before marriage has not been made up, the husband may do it afterwards, on the eve of a judg ment against him, if done in performance of the articles, or so accepted by the trustee. Ibid.

57. The rule which has uniformly been ob served by the supreme court in construing sta tutes, is to adopt the construction made by the courts of the country, by whose legislature the statute was enacted. This rule may be susceptible of some modification when applied to British statutes which are adopted in any of the states. By adopting them they become our own, as entirely as if they had been enacted by the legislature of the state. Cathcart et al. v. Robinson, 5 Peters, 264.

58. The construction which British statutes had received in England at the time of their adoption in this country, indeed to the time of the separation of this country from the British empire, may very properly be considered as accompanying the statutes themselves, and forming an integral part of them. But however subsequent decisions may be respected, and certainly they are entitled to great respect, their absolute authority is not admitted. If the English courts vary their construction of a statute which is common to both countries, we do not hold ourselves bound to fluctuate with them. Ibid.

The

59. At the commencement of the American revolution, the construction of the statute of Elizabeth' seems to have been settled. leaning of the courts towards the opinion that every voluntary settlement would be deemed void as to subsequent purchasers was very

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