1841. CALLAGHAN v. CALLAGHAN. 15th of November suddenly, uno flatu; and there is no doubt of the intention of the parties, and no vagueness or uncertainty on the face of the instruments. A conveyancer or a Master in Chancery would have no difficulty in framing a lease in pursuance of them. It is not a slight doubt that will prevent a Court from decreeing specific performance; Higginson v. Clowes (d); it is only such doubt as implies that one party intended one thing, while the other intended a different thing. The next objection to the performance of this agreement is, that it is a voluntary agreement, and therefore the Court ought not to decree specific performance against the heir-at-law. The short answer to that objection is, that this is not a voluntary agreement-that there is a valuable consideration. It is not unusual to apportion a greater consideration to one part of a contract than to another. The Appellant was to have the property rent-free for his own life, to be subject to a sufficient rent during the residue of the lease. There was nothing unreasonable in bounty and preference being given to the Appellant, by a brother who held him in affection and esteem, and who had for many years, as the evidence showed, lived in the house, the establishment there being supported chiefly by the Appellant. P. W. Callaghan himself held that part of the estate of Lotabeg rent-free, and he wished his brother to be "in as independent circumstances as possible." That was Mr. Terry's evidence, from his intimate knowledge of both the brothers. It was not a mere pecuniary contract between the brothers. (d) 15 Ves. 516, and 1 Ves. & B. 524. [The Lord Chancellor :-You put it in your bill as an agreement for a consideration.] 1841. CALLAGHAN 2. Had the case stood on the original bill and answer, CALLAGHAN, specific performance must have been decreed. The objections were raised by the cross-bill. Inadequacy of consideration, especially in a family arrangement, is not of itself a sufficient objection to prevent a decree for specific performance: and so this House held in the late case of Persse v. Persse (e), in which the main question turned on the adequacy of consideration in a contract between father and son. The contract and consideration in the present case are quite sufficient to sustain the Appellant's title to a lease against even a purchaser, under the statute of Elizabeth. The Respondent places some reliance on the circumstance that there was no ostensible change of possession in the house and establishment at Lota at the time of the agreement or afterwards, and would have it inferred that the agreement was not intended to be permanent. The reason is manifest; the Appellant had always, since 1824, been the ostensible owner: all the expenses of the establishment were paid by him and by his mother, none by P. W. Callaghan it is in evidence that when he paid some trifling sums to the steward to pay workmen, the Appellant's cashier repaid him all such sums. The Appellant and his mother were always regarded as the heads of the establishment. When the Appellant came to London to attend his duties in Parliament, his brother, P. W. Callaghan, acted as master; but there is sufficient evidence that the beneficial ownership was vested in the Appellant in 1837; and among (e) Ante, Vol. VII., p. 279. 1841. other evidence are the receipts for tithe-rent, which had been paid by P. W. Callaghan in 1835 and 1836, but was paid in November 1837 in the AppelCALLAGHAN. lant's name. CALLAGHAN V. Mr. Pemberton and Mr. T. H. Hall, for the Respondent:-The cross-bill having been dismissed, and there being no appeal from that part of the decree, the argument must be confined to the Appellant's suit. His bill prayed specific performance of the agreement as for valuable consideration. The Respondent resisted the performance of the contract as unreasonable and inconsistent in its terms, and for an inadequate consideration; but especially as not having been intended by the parties to it to be carried into execution. Courts of Equity never lend their assistance to enforce specific performance of contracts that are open to all or any of these objections. It did not occur to the Appellant to set up this agreement in answer to the Respondent's notice to give up possession of Lota some months after P. W. Callaghan's death, nor to plead it to the action of ejectment. No such title was alleged by him when he consented to judgment in that action in July 1838. It was not until the 15th of September that he gave the Respondent notice of this agreement, and in pursuance of that notice unadvisedly filed his bill. The Respondent's defence does not require a case of fraud to be made out against the Appellant; it is sufficient for his purpose that the Appellant has not shown a title to the relief he prays. If he has a good contract, he may use it to protect himself at law; but coming to ask for the assistance of a Court of Equity, he must show that the agreement was entered into with a bona fide intention of carrying it into effect; that both parties contracted for the same thing, and understood the effect of their contract. The reference to Persse v. Persse, which was the case of a contract executed and sought to be set aside, is wholly inapplicable. All the circumstances attending this agreement show that it was made for a temporary purpose, and not with the view of being certainly and at all events carried into effect. The Appellant had been required in the month of September 1837, just after his election for Cork, to take the qualification oath, which he accordingly took before the sheriff, stating his property to be partly in the county of the city of Cork. It is in evidence that there were judgments to the amount of 40,000l. against him at that time, besides about 30,000l. to which he was liable for the fortunes of his sister and two younger brothers, under their father's will. It is perfectly clear from his instructions to Mr. Terry, as stated in Terry's depositions, that the object of the agreement was to have this property to serve for a qualification against the threatened petition. Mr. Terry prepared the proposal the very evening of the day that he received the instructions, and the signatures were put to it the next day. The abandonment of the petition could not be known to them till the 14th, for the committee did not declare till the 14th. If the parties had previously agreed, as the bill alleges, and the agreement was intended to be permanent, would it not be the obvious and simple course to instruct Mr. Terry to prepare a proper and final instrument? It does not appear that the Appellant told Mr. Terry that there was a previous verbal agreement. The terms of the proposal and acceptance, coupled with the memorandum annexed, are so inconsistent that it is impossible to ascertain the real contract 1841. CALLAGHAN 0. CALLAGHAN. 1841. CALLAGHAN บ. CALLAGHAN. between the parties. The proposal and acceptance gave the property rent-free to the Appellant during his life; and being worth 350l. a year, it would make a good Parliamentary qualification for Cork. When the Appellant knew on the 15th that the petition was abandoned, there being then no occasion to use the agreement as a qualification, the memorandum to pay the 3507. rent "henceforward" was added, completely altering the contract; and that probably was the intention of the parties. The terms of the agreement, confined to the proposal and acceptance, are so unreasonable and unfair, even between brothers, that a Court of Equity ought not to decree a specific performance. Did P. W. Callaghan know that he was not only giving this property, worth 3501. a year, rent-free, but also free from assessments? What charges and liabilities were comprised in that term? Did he understand that he did not only denude himself of the property, but subjected himself to all the liabilities implied in that term? Did he know that he was to pay the head rent also, according to this contract? Did he know that the Appellant's judgment creditors might possess this property as soon as it was assigned to the Appellant, and turn out his mother and sister and brothers, and himself? By the conversations between P. W. Callaghan and his sister and two younger brothers, deposed to by them, to the effect that P. W. Callaghan wished "to give back the place" to the Appellant, he could not have meant that the Appellant should take it back without repaying the 6,000 7. which he had paid the Appellant for it. The agreement was prepared by the Appellant's solicitor, without any communication with P. W. Callaghan, who adopted it, and signed his name to it, |