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Price v. Berrington.

that points at any thing resembling coercion, is that of Williams, to which I have before adverted; and even if what he deposes amounts to coercion, there is nothing to show that Moggridge or Prothero had any knowledge of it. The case on the part of the plaintiff, therefore, as to undervalue, suppression, and coercion, has failed in proof. The alleged non-payment of the consideration has also failed, it being clear upon the evidence that the balance, which was paid by Moggridge, made up, with the previous payments, the full amount of the consideration stated in the deed. It may also be observed, that the evidence shows that the lunatic was in circumstances, at the time of the transaction in question, which rendered a sale of his equity of redemption in the estate in question convenient, if not necessary, inasmuch as it appeared by Prothero's evidence, that the sum due on a former mortgage of the estate was then required to be paid off. The case for the plaintiff is, therefore, reduced to the insanity; and the question, therefore, is, whether the insanity of Price, at the time of the sale of his equity of redemption in 1809, entitled him, or those representing him, or those interested in the estate, to call upon a court of equity in 1836, twenty-seven years after the transaction, to declare the conveyance void, and to decree an account of the intermediate rents and profits, the consideration being fair, no notice of the insanity, and no circumstance of fraud-the estate having been enjoyed during the twenty-seven years since the conveyance, and made the subject of family arrangements by settlement upon the marriage of the daughter of Moggridge, under which her children are entitled to the benefit of certain charges upon the estate.

Upon the question whether a conveyance executed by a lunatic is absolutely void, in the absence of notice, to the parties claiming under the conveyance, of such lunacy, and in the absence of all fraud, it is not necessary for the court to pronounce an opinion for the purpose of deciding this case. In the case of Niell v. Morley, 9 Ves. 478, a bill was filed by a lunatic and his committee, praying that the defendant might be decreed to repay money which the defendant had received from the lunatic in part payment of goods which the lunatic had bought at an auction, and for an injunction against the use of certain promissory notes which the lunatic had given in payment of the residue of the purchase-money. The alleged lunatic had made large purchases at an auction in May, 1800, for the sale of the materials of Gunnersbury house. On the 25th August in the same year a commission of lunacy issued, under which the lunacy was found, and referred back to May, 1797. The finding upon the inquisition had been traversed, and upon the trial the lunacy was established. The Master of the Rolls, as to the lunatic's condition on the day of the contract, thought the weight of evidence was in favor of the defendant, or, at all events, the lunatic on that day enjoyed a lucid interval; but said, "Suppose him," that is, the lunatic, "to be considered, in strictness, a lunatic at that time, without lucid intervals, the question is, how far the plaintiff, upon that supposition even, is entitled to the equitable interposition of this court to restore to him the money he paid in consequence of the contract; that the ground taken was, that

Price v. Berrington.

the fact of lunacy, without notice, avoided all his purchases, and that all that followed ought to be set aside." Notice was also contended to have been proved, but the Master of the Rolls believed that the defendant did not give credit to the intimations which had been given to him, and acted bona fide; and he said the case, therefore, came to the mere fact that the party was lunatic, and the question was, how far, under all the circumstances, the court should interfere to set the transactions aside; supposing them to be void at law, that depended upon the circumstances of the case, and no general rule could be laid down. There were cases in which the inconvenience would be so great, that the court would leave the party to law; and remarked, among other circumstances, that the lunatic had sold a part, if not all the goods which he had purchased, and that the parties, therefore, could not be replaced should the contract be avoided; and after making observations upon the particular facts of the case, his Honor said, "If the plaintiff is right in saying all was void at law, let him resort to law, and recover it if he can;" but there was no ground for a court of equity to advance his remedy, when it was impossible to do justice to the other side, upon the simple ground that the contract may have been void, (and whether it was or not, he would not determine;) he thought the consequences were so extensive and inconvenient, that the court ought not to give the relief prayed for.

Although the circumstances of the case cited and the present are of course not identical, and may be considered as distinguishable in some respects, the principle of that decision is clear, and I think is applicable to the present case. The contract has been long executed, with the knowledge of the family; the estate has been enjoyed for twenty-seven years; and, without the occurrence or discovery of any new circumstances, the transaction, after that period, is sought to be avoided. The purchaser, having acted bona fide, dealt with the estate believing it to be his own, made important family arrangements upon that footing, and the disturbance of which would, I think, be not only highly inconvenient, but unjust. The holding, that the court ought not to grant the relief prayed under these circumstances, is consistent with the principle of Niell v. Morley, and of Lord Hardwicke's ruling in Sergeson v. Sealey, 2 Atk. 412. Although it is not necessary to pronounce a decision upon the abstract general question, whether in the present state of the law a conveyance executed by a lunatic is absolutely void in the absence of notice, and fraud; yet, if that question were necessary to be decided in this cause, the case of Molton v. Camroux, 2 Exch. 487; in error, 4 Exch. 17, would require great consideration upon pronouncing a decision in the affirmative of the proposition.

A second point arises in this case, which is of considerable importance with respect to the general practice of the court, and that is, whether the case made by the bill is supported by the evidence; and if not, whether the bill ought to be dismissed, even although the evidence does establish a case which, if properly stated by the bill, would have entitled the plaintiff to some relief. The question, whether a conveyance executed by a lunatic is absolutely void, or if it be only

In re John Field's Mortgage.

voidable and under what circumstances, may be open to some difficulty; but a case of direct and positive fraud, of which the lunacy forms one fact or circumstance, is clearly a subject for equitable interference. But the two classes of cases would be met by a defendant in a very different manner; and I conceive that it is now an established doctrine of this court, that when the bill sets up a case of actual fraud, and makes that the ground of the prayer for relief, the plaintiff is not entitled to a decree by establishing some one or more of the facts quite independent of fraud, but which might of themselves create a case under a totally distinct head of equity from that which would be applicable to the case of fraud originally stated. I am inclined to think that that doctrine might be properly applied to the present case, as the bill states a very strong and clear charge of direct and positive fraud in several particulars, no one circumstance constituting that fraud being supported by the evidence. Upon the principle which I have stated, and which has been repeatedly recognized, especially by Lord Cottenham, and was lately acted upon in the case of Gibson v. D'Este, in the House of Lords, the defendant would be entitled to a dismissal of the present bill. For the purpose of the decision of the case, however, it is enough to say, that, upon a full consideration of the whole case, the plaintiff has not established a title to the relief which he has prayed, and that the bill, therefore, must be dismissed, with costs. The cases to which I have last referred are M'Guire v. O'Reilly, 3 Jo. & LaT. 224; Ferraby v. Hobson, 2 Ph. 255; and Glascott v. Lang, Id. 310. The view the court has taken of the case, as before expressed, renders it unnecessary to enter into the consideration of many of the points which were made at the bar.

In re THE TRUSTEE ACT, 1850; and in re JOHN FIELD'S MORT

GAGE.1

November 7, 1851.

Devise-Mortgage.

A mortgagee in fee of lands of gavelkind tenure gave and devised all the residue of his estate personal, and real property, moneys, and securities, and all other effects, which should remain after paying his just debts, funeral and testamentary expenses, to his wife for her own use and benefit:

Held, that in consequence of the devise by the will, no estate in the mortgage premises remained vested in the infant co-heirs in gavelkind of the mortgagee; and an order was therefore refused, upon a petition presented under the trustee act, 1850, praying an order vesting the infants' estate in the petitioner.

By indenture of mortgage, dated the 9th October, 1846, certain premises of gavelkind tenure, of which the petitioners, Charles Small

1 15 Jur. 1004.

Holme v. Holme.

and Edward Small, were seized in fee, were conveyed to John Field, his heirs and assigns, by way of security for 450l. In March, 1851, John Field, the mortgagee, died, having previously duly executed a will, dated in November, 1850, whereby he disposed of his residuary property as follows:-"All the residue of estate personal, and real property, moneys, and securities, and all other effects, which shall remain after paying my just debts, funeral and testamentary expenses, I give and devise unto my wife, Anna Maria Field, for her own use and benefit." The petition was presented by the mortgagors and the executor of Field, stating that Field had left three sons, of whom two were infants: that by the custom of gavelkind, the legal estate in the premises had descended upon such sons: that the petitioners, the mortgagors, had contracted to sell the mortgage premises, and pay off the mortgage debt: and that they were desirous that the legal estate in the two undivided third parts of the mortgage premises, which had descended upon the two infant sons of the mortgagee, might be vested in the petitioner, the executor of the mortgagee, so as to enable him and the adult son of the mortgagee, on payment of the mortgage money, to execute a conveyance of the legal estate in the mortgage premises, according to the appointment of the mortgagors; and the petition prayed a vesting order accordingly.

Jessel, in support of the petition, cited Silvester v. Jarman, 10 Price, 78, as an authority establishing that the legal estate in the mortgage premises descended upon the heirs in gavelkind of the mortgagee, notwithstanding the devise contained in his will.

Sir GEORGE TURNER, V. C., refused to make an order upon the petition, observing, that he was of opinion, notwithstanding the authority cited, that no estate in the premises was vested in the infant co-heirs of the mortgagee.

HOLME v. HOLME.1

November 5, 1851.

Administration claim by an executor who had not possessed any assets. Order made in prescribed form, without variation on that account.

The pecu

THIS was a claim by an executor for administration. liarity of the case was, that there was no statement that the executor had possessed any of the assets.

Hobhouse, for the plaintiff, said that the assets consisted entirely of debts outstanding due to the testator.

1 15 Jur. 1004.

Potts v. The Thames Haven Dock and Railway Company.

Sir J. PARKER, V. C., said the order might be made in the form given by the orders of April, 1850. If the executor had possessed nothing, the master could charge him nothing. That fact could make no difference in the form of the order. Order accordingly.1

POTTS V. THE THAMES HAVEN DOCK AND RAILWAY COMPANY.2

November 5, 1851.

Claim for specific performance of agreement of a railway company to purchase land from

trustees:

Held, that persons beneficially interested in the land were not necessary parties to the suit. By the terms of the agreement the land was to be valued, and the purchase-money was not to be less than 400/.

Quare, whether this agreement could be enforced, no valuation having been made?

There had been great delay on the part of the company, owing to their pecuniary embarrassments; but, after considerable discussion, it was agreed to give the company further time, and the claim was ordered to stand over.

THIS was a claim for specific performance. The company had given the usual notice to the plaintiffs to treat for the purchase of certain lands. In 1847 a formal agreement was entered into between the plaintiffs and the company, as the only parties thereto, for the purchase of the lands by the company for 4007. at least, but a valuation was to be made, and if more than 400. should be awarded, the company were to pay more. This was the agreement of which specific performance was now sought. The real reason of the delay in completing the contract appeared to be the financial difficulties of the company. The claim came on to be heard in the present year before Knight Bruce, V. C., and was then ordered to stand over for a month. The company still neglected to complete the purchase.

C. P. Cooper and Hallett, for the plaintiffs.

Wigram and Shapter, for the defendants, asked for further time, and said that the company expected soon to be better able to pay for the land. On this being resisted, they objected that the plaintiffs were only trustees, and said that the persons beneficially interested ought to be parties; otherwise, if this claim were to fail, the defendants might be harassed by a similar suit by the beneficial owners of the land.

James Russell (amicus Curiæ) said there were decisions of Sir John Leach to that effect, but that they were now overruled.

1 See orders of April, 1850, Schedule (C), No. 6.
2 15 Jur. 1004.

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