Donaldson v Freeson [1934] HCA 13

Appl i Be, Bins

er wan fate

HIGH COURT (1934.

{HIGH COURT OF AUSTRALIA.]

DONALDSON AND ANOTHER : . APPELLANTS ; PLAINTIFFS, AND FREESON AND ANOTHER ? 5 5 . RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A, Trust—Declaration of trust—Land purchased with husband's money transferred to

1934. ES SyDNEY, April 24, 26.

Metzourne, May 23.

wife—Ilegal purpose of husband—Knowledge of wife—No proof that illegal purpose effected, or other party prejudiced—Representations by wife—Estoppel by acquiescence—Credibility of witnesses—Conelusions of trial Judge—Cognizance by Court of Appeal.

'M.D. was the registered proprietor of certain land which had been purchased in her name, part of the purchase money being paid by cash provided by her husband, S.D., and the balance being secured by mortgage back to the vendor, executed by M.D. The receipts were given in the name of M.D. §.D. expended a large sum from his own moneys in remodelling buildings on the land, and paid the legal costs in connection with the sale of the land, the insurance on the property, and interest moneys under the mortgage. A writ of fieri facias issued at the instance of F. for the enforcement of a judgment previously recovered by him against M.D. The latter subsequently executed a declaration of trust in respect of the above- mentioned land in favour of §.D. It was ante-dated so that it appeared to be prior in time to the date of the entry of the writ in the register, but notice of the alleged trust was not given to the sheriff until some weeks after the date appearing on the declaration. The sale of the land to F. was effected by the sheriff after the receipt by the latter of the notice. In proceedings under the Moratorium Act 1930-1931 (N.S.W.) for relief against execution, M.D. in her affidavit claimed that the land was purchased by her husband and put into her name. In a further affidavit she alleged that the purchase