3. As to secret settlements and agreements in fraud of the marriage contract.
Secret settlements of her property made by the wife pending the treaty for marriage, without the privity of the husband, are void as against him, if made in derogation of his marital rights ; and this, it seems, is equally true, whether the husband knew of the existence of the property before the marriage or not. The rule applies to every species of gratuitous incumbrance created by the wife upon her pro perty under such circumstances.
The courts of equity, upon the general principles on which they act in cases of fraud, will set aside all secret covenants or agreements entered into contrary to the good faith of the marriage treaty, and not with the privity of all the parties to the settlement. Relief in such cases will not be refused even to a person who was a party to the frau dulent transaction of which he complains.
Upon the same principle, if a creditor or holder of any security or charge on the estate of one who is engaged in a treaty of marriage, misrepresent the amount of his debt or incumhrance to any of the parties to the contract, whether for the purpose of promoting the marriage, or for any other purpose, he will be bound by such mis representation. Money which has been lent to a woman for the pur pose of being represented as her own, cannot, after the marriage, be claimed as a debt from the husband.
4. Settlements of real property usually consist of limitations of an estate or estates for life to one or more persons, that is (where the settlement is made on marriage), to one or both parents and the sur vivor of them, with remainders over to their children. This is what is called a limitation in strict settlement. By this method the estate ie reudered inalienable till the eldest son of the marriage attains the age of twenty-one, when he can join with his father in barring his own estate tail and all the remainders over, whereby a new estate in fee simple is acquired, and the property may be settled again. [PRIMO GENITURE ; REMAINDER.] Thie was formerly effected by means of a common recovery [REcovERy], but it is now effected by a deed exe cuted under the provisions of 3 & 4 Wm. IV., c. 74. By this act fines and recoveries are abolished, and the objects of these old modes of assurance are now obtained by a deed which must be enrolled in Chancery within six months after its execution. As, before this act,
a tenant in tail expectant on a particular estate of freehold could only have barred his own issue by a fine [FINE], unless he could obtain the concurrence of the owner of the particular estate in suffering a recovery, so, under the new act, his power is equally limited, unless he can obtain the concurrence of the owner of the first existing estate under the settlement (whether it be for life or lives, or any greater estate, not being an estate for years) prior to the estate tail, who is called the protector of the settlement. The act contains several pro visions for the purpose of ascertaining who shall be protector in the cases of joint ownership, coverture, and the existence of estates for years or in dower ; and it provides for the cases where the protector is a lunatic, or convicted of treason or felony. The act also gives the settler power to appoint by the deed a protector of the settlement, in lieu of the person who would otherwise have been the protector. The consent of the protector must be given either by the deed of assurance or by a separate deed, which must be enrolled in the same manner as the assurance itself. The same act repeals (except as to settlements made before the 28th of August, 1833) the statute of 11 Hen. VII., c. 20, whereby women who were seised of estates tail of the gift of their husbands (e.r prorisiose rin) were prohibited from alienating them.
The estates limited in settlement+ of real property may be either legal or equitable. [Uses.) %%lien charges are intended to be created upon real estate, as for jointures or portions for children, it is usual to limit terms of years out of the estate to trustees for securing payment of the charges by perception of the rents and profits, or by sale or moMmg.e of the estate for the periods so limited. These terms are insert at proper places in the settlement, according to their objects, among the other limitations ; and such limitations as are subsequent to these terms of years in the order of arrangement, are also made subject to them in point of legal and equitable interest. It is usual to provide that the terms shall cease when their objects are accomplished or become un necessary or incapable of taking effect.