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Daniel CallaGIAN, Esq. - -. - Appellant.
John Callaghan, Esq. ... - Respondent.

1811: Feb. 2. 4. 8.

Oct. 6. AgreementSpecific Per

formance. Equitable

Fraud. Uncertainty.

Practice.

P. being seised of an estate by lease for lives renewable for ever,

subject to a rent equal in amount to a rent which a subtenant paid him for part of the estate, agreed in writing to let the other part in his own possession to D., his brother, for the lives of D. and two others, and the life of the survivor, free from rent and assessments during D.'s life, to be subject to a rent of 350 l. during the other lives or life surviving D.: leases to be executed at the request of either party. A memorandum was added, of the same date, signed by both parties, stating,—“ Rent to be payable halfyearly, every 1st of May and Ist of November, henceforward.'” Prior to the agreement, D. being elected Member of Parliament for a city, was required to take the Members' qualification oath ; and a petition was threatened against his return for want of qualification, but was abandoned at the date of the agreement. P. died

intestate, without executing a lease, or parting with possession. Held by the Lords (affirming a decree dismissing a bill filed by D.

against P.'s heir-at-law, for specific performance) that the circumstances and evidence showed that the object of the agreement was to give D. a qualification for Parliament; that no interest in the property passed, and that the parties never intended that the agreement should be executed; and therefore the execution of it could not be enforced, either as an agreement for valuable con

sideration (which was the case made by the bill), or as a gift. Courts of Equity do not decree specific performance of incomplete

gifts. Inadequacy of value is not an objection to decreeing specific per

formance, unless the inadequacy is so great as to prove fraud, or

that the parties could not have intended to execute the contract. The uncertainty which the above memorandum made in the agreement would of itself make it impossible to decree specific per

formance without paying the rent of 350 l. from its date. Where there are a cause and a cross-cause, and the decree in the

cause only is appealed from, the cross-cause is in no respect before the House.

IN the year 1823 the Appellant bought the house, offices, and demesne lands of Lota, otherwise Lotabeg, in the north liberties of the city of Cork, containing about 80 acres, held under a lease for three lives,

CALLAGHAN.

renewable for ever on payment of a nominal fine, 1841. and at a yearly rent of 1601. late Irish currency.

CALLAGHAN The lands were divided by a wall into two distinct parts. One part, containing 40 acres, with a house and offices, and called Fort William, had been for a long time in the possession of Colonel Baker, or his representatives, under a sublease for three lives, with a covenant for perpetual renewal, on payment of a nominal fine, and at a rent of 1601. late Irish currency, being a rent equal to the head rent for the whole estate. The remaining part of the lands was annexed to and included the mansiun-house of Lota, or Lotabeg, and the garden and pleasure-grounds attached thereto. The father and mother of the Appellant and Respondent had resided on this part of the property, with their unmarried sons and daughter, from the year 1809 till the father's death in 1824. From that time the establishment was kept up partly at the expense of the Appellant, but principally by his mother and unmarried sister. The Appellant had generally resided in London for many years, and almost entirely from 1832, when he was elected Member of Parliament for the city of Cork.

By an indenture bearing date the 18th of April 1834, the Appellant, in consideration of 6,000 l., sold and conveyed the whole of the houses, offices, and demesne lands, containing about 80 acres, and including the mansion-houses of Fort William and Lota, to his brother, Patrick William Callaghan and his heirs, for and during the said term and estate, and subject to the said yearly rent. Upon the execution of the conveyance, P. W. Callaghan entered into the possession of the house and offices of Lota, and of that part of the lands which was not sublet to Colonel Baker, and continued in the ostensible possession, or

1841.

CALLAGHAN

7.

CALLAGHAN.

receipt of the rents and profits of the whole of the estate until his death hereafter mentioned.

In August 1837 there was a general election of Members to serve in Parliament, and the Appellant was at that election returned as duly elected for the city of Cork; and on the 8th of the following month of September the Appellant, in compliance with a requisition served on him by certain persons who had been entitled to vote at the election, took the qualification oath, and represented that his qualification arose out of premises, amongst others, in the city and county of the city of Cork. By the same persons, in the interval between the return of the Appellant and the meeting of Parliament in the month of November 1837, threats had been held out to him of a petition being presented against his return, upon the ground, amongst others, that he had no sufficient qualification. These circumstances drew the Appellant's attention to the inconvenience and expense of producing and proving before an Election Committee his title-deeds of property which he had in Ireland, and of carrying witnesses to London for that purpose ; and having then, as he alleged, concluded an agreement with his brother, P. W. Callaghan, to take a lease of the mansion-house and lands of Lota, he gave his solicitor instructions to draw the instrument of agreement in such a manner as would enable him to make out a sufficient qualification from that property, without resorting to any other.

An agreement was accordingly drawn up in writing in the nature of a proposal; it was prepared by the attorney of the Appellant, by his direction, and was addressed to P. W. Callaghan, and signed by the Appellant, and was in the words and figures following :-" I propose to take from you the house, offices,

AGIAN

CALLAGHAN.

and that part of the demesne of Lota annexed thereto,
containing 40 acres or thereabouts, situate in the pa- CAL
rish of Glanmire and the north liberties of the city
of Cork, for my own life and the lives of Richard
Callaghan and George Callaghan, Esqrs., and of the
survivor of such three lives; same to be free of all
rent and assessments during my life, and to be subject
to the annual rent of 3501. per annum during the lives
of the said Richard Callaghan and George Callaghan,
and of the survivor of them, in case of either of them
surviving me. And I bind my heirs and assigns to
pay such rent to you and your heirs and assigns during
their lives, from the time of my decease, so long as
either of them shall live. Leases to be executed at
the request of either party. Dated this 14th day of
November 1837, at Cork. Daniel Callaghan.

“ To Patrick William Callaghan, Esq.”

On the back of the paper containing the proposal, was written an acceptance by P. W. Callaghan, in the words and figures following :-“ I accept of the above proposal, and agree to let the said house and demesne on the above terms. Dated this 15th day of November 1837.

P. W. Callaghan.And subjoined thereto, in the handwriting of the Appellant, was this memorandum, signed by the Appellant and P. W. Callaghan :-“ Rent to become due and payable half-yearly, on every 1st day of May and 1st day of November, henceforward.

" Daniel Callaghan, “ 15th November 1837. P. W. Callaghan.

A copy of the proposal, acceptance, and memorandum, was written by the Appellant, and handed to P.W. Callaghan, signed by the Appellant; the originals, as he alleged, being retained in his own possession.

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1841. The threatened petition against the return of the

IN Appellant to Parliament was never presented, and

the agreement was not acted upon as a qualification ; CALLAGHAN,

no lease was ever granted or applied for, and no apparent change of possession of the premises took place, but P. W. Callaghan continued in the ostensible possession and ownership until his death; his mother and sister, and two of his brothers, resided there, as they did formerly while the Appellant was the owner; and the Appellant also resided there when in Ireland, and then acted as if he was still the owner.

Patrick William Callaghan died in January 1838, intestate as to this property, unmarried, and without lawful issue, leaving the Respondent, his eldest brother and heir-at-law; and the Respondent thereupon claimed to be entitled to the houses, offices, and the 80 acres of land, comprised in the conveyance of the 18th of April 1834, subject to the underlease of that part called Fort Williain to the representatives of Colonel Baker: and in Hilary Term 1838, he brought an action of ejectment against the Appellant in the Court of Exchequer in Ireland, for the purpose of obtaining possession. The Appellant took defence to the action for the whole of the premises sought to be recovered, but afterwards gave consent for judgment against him with stay of execution till the 6th of November 1838. Before the time expired, the Appellant caused notice to be given to the Respondent of the existence of the agreement, and proposed and required him to execute, in pursuance thereof, a lease of the said house and premises to the Appellant.

The Respondent having declined to comply with the requisition, the Appellant, in October 1838, exhibited his bill in the Court of Chancery in Ireland against the Respondent, for the purpose of compelling

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