CHAP. II. THE PARTIES. GRANTORS. at variance with all the later authorities, which have established the wife's full power over her separate estate, and was carefully examined by Sir W. Grant, in a subsequent case of Essex v. Atkins, (a) when that learned judge controverted the positions of Lord Rosslyn, and decided contrary thereto, holding that the married woman having free control over her separate estate, might charge it with an annuity, and if the assent of her trustee was not required to her disposition thereof, his dissent was of no consequence. In Wagstaffe v. Smith, and Power v. Bailey, there was no objection made by the trustee, and the annuity granted by the wife was in both cases supported. In the former, (b) certain bank annuities were limited in trust to permit a married woman to take the dividends to her own use for life, independent of her husband. In consideration of a sum of money paid to herself and her husband, she assigned these dividends to a trustee to secure the grant of an annuity, and the grant was established. Again, in Power v. Bailey, (c) previous to a marriage, it was agreed by articles of settlement, that the wife's separate estate should be vested in trustees for her sole and separate use, and that she should have full dominion and control over it. She granted, with the privity of her husband, an annuity to a young lady who lived with her, and charged her estate with it. It was held by Lord Manners, after her marriage with a second husband, to be a specific lien upon her separate estate so agreed to be settled upon her. And in the last case (d) a testator devised a freehold estate to trustees, to pay the rents, as they became due, into the hands of his wife, and not otherwise, for her life, to her separate use, and not to be subject to the control of any future husband, and directed that the receipts of his wife alone, for what should be actually paid into her own (a) 14 Ves. 542. See also Brown v. Like, ib. 302. (b) 9 Ves. 520. (c) 1 Ba. & Be. 49. (d) Acton v. White, 1 S. & S. 429. proper hands, should be good discharges. The Vice Chancellor decided that this was no restraint upon her power of alienation. He said, "It is now too late to contend that a lady is restrained from the power of alienating her life interest, because it is given to her sole and separate use, and is to be paid into her own proper hands, and upon her receipt alone. The contrary is settled by repeated authorities." CHAP. II. THE PARTIES. anticipation may be re strained. It is manifest that it is often very desirable to restrain a Power of alienmarried woman from disposing of her separate estate, and ation by way of especially from charging it with an annuity. It was indeed held, that if she had not the power of disposing of it, she could not grant an annuity out of it; (a) and this has given rise to the clause, not now uncommon, which imposes a restriction upon a married woman's alienating her separate estate, by way of anticipation of the future accruing payments. This clause was at first open to some doubt as to its legality, but it is now established as perfectly valid. (b) It has also been the opinion of Lord Eldon, that where a married woman is possessed of a separate estate under a power, which also restrains her alienation, even a fraudulent concealment by her of this restriction will not give validity to the charge, since it is entirely a question of intention in the settlor, which her conduct cannot affect. However, in the case (c) before him the fraud was not proved, and he was not called upon to give an absolute decision. the Generally this restriction is contained in an express de- Which restricclaration, though it may be inferred from the circumstances tion may be implied. and terms of the gift, as appears from Caverley v. Dudley. (d) There a testator bequeathed property to trustees to pay produce to Lady D. for her life, and after her death to her children. Lady D. charged this with an annuity irredeemable. Lord Hardwicke held, that though there were no words restraining her from raising money by anticipation, that that was evidently intended, and therefore though she (a) Hovey v. Blakeman, 9 Ves. 525, cit. (b) 2 Rop. H. & W. p. 230. (c) Jackson v. Hobhouse, 2 Mer. 483. (d) 3 Atk. 541. THE PARTIES. GRANTORS. CHAP. II. might contract for a loan, yet an annuity for her own life was not warranted. Accordingly he directed that she might redeem the annuity, which should cease from the filing of the bill for redemption. The evidence of the intent to restrain the alienation is not very apparent, but the principle is admitted and acted upon by the Chancellor. 2. Minors, their grants are void or voidable at common law. But void since 53 Geo. III. The next exception applies to minors. It is not quite settled whether the grant of a rent by a minor, at common law, was absolutely void, or only voidable. In Perkins (a) it is said, that if the grantee of a rent, granted by an infant, distrain on the land, the infant may punish him as a trespasser, but cannot plead that he did not grant by the deed, for it is not void, but voidable. And in Bacon's Abrid. Infancy, p. 139, a case of Hudson v. Jones is cited, where it was held that an infant's grant of a rent charge is not absolutely void, but voidable only. On the other hand, Lord Holt has said, in Thompson v. Leach, (b) that an infant's grant of a rent charge is not voidable, but ipso facto void, for if the grantee should distrain, the infant may have an action of trespass against him. Thus he adopts the reasoning of Perkins, but not the whole of his position, and there are other authorities (c) which also treat the infant's grant as void; yet there is no doubt that an infant, when he came of age, could confirm such a grant, and it is difficult to understand how a void instrument can be confirmed. But in many cases, this doubt is of little, if any, consequence, because, as minors are persons particularly exposed to fraud when pecuniary annuities are granted, the legislature has provided a remedy in the statutes, which will require much attention in this treatise, the 17 Geo. III. c. 26. s. 6, and the 53 Geo. III. c. 141. s. 8, whereby it is enacted, "That all contracts for the purchase of any annuity or rent charge with any person being under the age of twenty-one years, shall be and remain utterly void, any attempt to confirm the same after such person shall have attained the age of (a) Grants, s. 12. (c) Com. D. Enfant, 1 Prest. Abs. 324. THE PARTIES. twenty-one years notwithstanding." And farther more effec- CHAP. II. tually to prevent such transactions, the statutes go on to enact, "That if any person shall, either in person, by letter, agent, or otherwise, procure, engage, solicit, or ask, any person, being under the age of twenty-one years, to grant or attempt to grant any annuity or rent charge, or to execute any bond, deed, or other instrument for securing the same, or shall advance or procure, or treat for any money to be advanced to any person under the age of twenty-one years, upon consideration of any annuity or rent charge to be secured or granted by such infant after he or she shall have attained his or her age of twenty-one years, or shall induce or solicit or procure any infant upon any treaty or transaction for money advanced, or to be advanced, to make oath, or to give his or her words of honour or solemn promise, that he or she will not plead infancy, or make any other defence against the demand of any such annuity or rent charge, or for the repayment of the money advanced to him or her, when under age, or that when he or she comes of age he or she will confirm or ratify, or in any way substantiate such annuity or rent charge, every such person shall be guilty of a misdemeanour, and being thereof lawfully convicted in any Court of Assize, Oyer and Terminer or General Gaol Delivery, shall and may be punished for the said offence by fine, imprisonment, or other corporal punishment as the Court shall think fit to award," There does not appear to have been any prosecution under this section, but in a case which came before the Court of Common Pleas, Dallas, C. J. stated that an attorney who knowingly raised money for an infant by way of annuity, though he was himself the nominal grantor, was guilty of a misdemeanour. (a) a fined to the These statutes repeal so much of the common law as They are conallowed the confirmation of the contract for the sale of pecuniary annuity, and are confined to the protection of (a) Mence v. Hammond, 6 Moo. 494. minor, and do not affect third parties jointly liable. CHAP. II. THE PARTIES. How the acts are restricted. Not confined to this respect. the minor only. Accordingly it was decided (a) that the separate covenant of one grantor of an annuity was not avoided by the infancy of another, who had granted in the same deed both jointly and severally. It was not contended that the infant's deed was void at common law, but the defendant relied upon the section of these acts, which had rendered it invalid. However, Mansfield, C. J. observed, that "the statute does not say simply that the contract shall be utterly void, but void notwithstanding any attempt to confirm the same after the infant shall have attained the age of twenty-one years, so that the legislature was aware that the contract made by the infant was void at common law." But it is certainly open to doubt whether the statutes warrant that inference. These statutes, as will also appear hereafter, are restricted to the purchase and sale of annuities for pecuniary consideration, and do not apply to voluntary grants of annuities, or to those granted by testament, or secured upon real property, or property in the funds of equal or greater annual value. It is observable, also, that the other provisions of the life annuities in annuity acts are confined to life annuities, whereas the language in these sections being more general, namely, all contracts for the purchase of any annuity or rent charge, they do not seem to be so restricted, but to extend to grants for term of years, or in fee. Infant's devise But Hitherto only grants by infants, by deed, have been conand testament. sidered; but it must not be forgotten that the statute of wills, 34 Hen. VIII. c. 5, which authorizes the devise of rents, prohibits a party under twenty-one from devising at all; therefore an infant cannot devise a rent charge. an annuity being merely personal estate, may be bequeathed as early as he can make a testament, which is at fourteen. Another exception is of persons attainted. After attainder attainted cannot for treason or felony, the party attainted is incapable of making a grant of a rent which shall charge the lands as 3. Persons grant as against the Crown. (a) Haw v. Ogle, 4 Taun. 10. |