The National Bank Ltd v Patrick Behan and Others

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 11 December 1912
• Court: Chancery Division (Ireland)
• Date: 11 December 1912

The National Bank, Limited,

and

Patrick Behan and Others.

M. R.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1913.

Voluntary conveyance of lands — Trusts for infants — Sabsequent purchaser for value — Onus of proving voluntary conveyance made bona fide — 10 Ch. 1 (Ir.), Sess. 2, c. 3, s. 1 — Voluntary Conveyances Act, 1893 (56 & 57 Vict. c. 21), s. 2 — Conveyance with intent to defraud creditors — Nature of fraud required to be proved — Onus of proof — 10 Ch. 1 (Ir.), Sess. 2, c. 3, s. 10.

Where a voluntary conveyance of lands is impeached by a subsequent purchaser for value, the onus of proving that such conveyance was made bona fide and without fraudulent intent, so as to bring it within the protection of sect. 2 of the Voluntary Conveyances Act, 1893, lies on the party seeking to uphold such voluntary conveyance.

Where infants were unable to prove affirmatively the bona fides of a voluntary conveyance of lands executed in their favour by their father, the conveyance was held void as against a subsequent purchaser for value.

To bring a deed within s. 10 of 10 Ch. 1 (Ir.), Sess. 2, c. 3, as being made with intent to defraud creditors, the deed must be fraudulent in its conception or execution. A subsequent fraudulent dealing with the property comprised in the deed cannot avoid it. The onus of proof is cast on the party impeaching the deed.

The following statement of the facts is taken from the judgment of the Master of the Rolls:—

In or about the year 1896 the defendants Patrick Behan and Anna Behan got married. They lived in the town of Galway. Patrick Behan was a commission agent, and appears to have had little or no property. Anna Behan got a fortune of some £900, which she handed over to her husband. There were two children of the marriage—the infant defendants, Ethel Behan and Albert Behan.

A portion of the wife's fortune was invested by the husband in the purchase of leasehold interests in—(1) a public-house; (2) a dwelling-house; and (3) two cabins and a house, all situated in the town of Galway. These purchases were made by the husband in his own name, and the conveyances were made to himself.

On the 20th November, 1902, the husband executed a conveyance by which he assigned these several leasehold interests to his wife for her life, and after her death unto and to the use of the children.

The conveyance contains a recital that the husband had agreed to assign his estate and interest in the premises for the considerations and subject to the covenants thereinafter contained.

The consideration was expressed to be £600 cash advanced by the wife to the husband on their marriage, and natural love and affection.

About three months after the execution of the conveyance the husband went into the office of the National Bank in Galway, and induced the manager to advance to him a sum of £436 16s. 10d., depositing with him the title-deeds of the premises which had previously been conveyed by the voluntary settlement, as a security for the advance then made and future advances, which now amount with interest to over £700. The execution of the voluntary settlement (which had not then been registered) was suppressed by the husband, and the evidence showed that the wife was a party to the suppression.

The present action was brought for the purpose of having the conveyance of the 20th November, 1902, declared void as against the plaintiffs.

Herbert Wilson, K.C., and Swayne, for the...