estate was expectant-he was just in the situation of an apparent Lord Chancellor.-As you shape your case, £2,300 only was advanced, and there was an exorbitant bargain for the £2,800. Where a mortgage is to be redeemed, it must be upon payment of the principal, interest and costs. This bill is brought to be relieved against a conveyance of the 12th of June, 1773, stating the interest of Gwynne in his father's estate, and conveying a rent-charge of £300 per annum, and also against a bond, in the penalty of £10,000 with a warrant of attorney to confess judgment, for carrying that agreement into execution, on the ground of gross inequality, and as being entered into by a man who had an estate tail, expectant on the death of his father: and it takes in a great many fraudulent and oppressive circumstances, but these are not proved. Gwynne made the offer in its extent to Heaton, who received it in the very shape in which it was offered. This excludes every suggestion of express proof of deceit by Heaton, in whom no confidence was placed, nor any assumed by him. There is no express proof of Heaton's labouring Gwynne to obtain a better security than was offered to him; he is not charged with misleading his judgment, or tampering with his poverty (a). On the other hand, the terms are so very grossly unequal, as to deserve all that has been said to be necessary to the setting the bargain aside. He was a young man of twenty-three, married, contrary to the inclination of the father, to a young woman, by whom he has children, though not male issue, who therefore do not succeed to the estate tail. The father was at least seventy-mine, according to the plaintiff's evidence, and had additional signs of immediate decay. On the part of the defendant only two witnesses have been read: one says, his health was better than his spirits; the [(a) Vide Bowes v. Heaps, 3 V、s, & Be, 119.] second, 1778. GWYNNE v. HEATON. [ 8 ] 1778. GWYNNE v. HEATON. [9] second, a servant who had lived in the family some years before, remembered his master's state of health at that time, which was in general that of a man of his age, he returned into the service the beginning of the month in which this transaction began, and says, that he now found him remarkably changed for the worse, and that he was obliged to have a servant sleep in the room. The apprehension of dissolution began to prevail with himself and all about him: This situation appears to be perfectly known to Heaton. This is sufficient to support those witnesses, who say, that one or two years purchase was the full value of his life. I am the fuller in stating these circumstances, because the agents should have been more careful in procuring evidence. To set aside a conveyance, there must be an inequality so strong, gross and manifest, that it must be impossible to stute it to a man of common sense, without producing an exclamation at the inequality of it. The principle then is loose enough-looser than I wish to be established in a court of justice. But to reverse the principles which have been laid down by successive great names would be to alter the rules of property. In the present case the considerable inequality is referable to cases already determined. There is an extraordinary anxiety in the preamble of the deed, to state the circumstances, so as to take it out of the objections in former cases; this is a strong circumstance to shew that the parties thought it would be liable to be set aside. The rule therefore must be attended to. It is said, a bargain cannot be set aside upon inadequacy only. If parties are of full age, treating upon equal terms without imposition, and there is an inequality, even if it is a gross one, the Court in general has not set it aside. The nearest instance which I recollect of the Court's relieving in such circumstances, is Sir Thomas Meers's case (cited in Forr. 40). That case stands alone, if considered as bearing analogy to the present. That was not the case of an expectant heir; but between persons standing indifferently;—and it has always been held that interest upon interest was unconscionable. It has also been said that the owners of reversionary interests are as competent to dispose of them as the owners of other interests. In the modern cases this is allowed, with the qualification that there is a policy in justice, protecting the person who has the expectancy, and reducing him to the situation of an infant, against the effects of his own conduct. The Court avows the disability, but not the length to which it disables. Lord Ardglass and Pitt, 1 Vern, 239. It is very difficult to state the analogy between our law and the Roman, with respect to the protection of children in the life-time of their parents. Lord Hardwicke, in the case before him, referred to the senatus consultum Macedonianum*. The principle is recognized, and the rule laid down in 3 P. W. (Cole v. See Dig. 14. T. 6. As to the law of Rome, on the subject of the contracts of minors see D. 4. T. 4. also Domat. B. 4. T. 6. § 2. and see the same excellent writer, on the vices of covenants. B. 1. Tit. 18. Gibbons Gibbons, 3 P. W. 290.) and the Court has proceeded upon it for near a century. The practice has overturned the rule upon which Nott v. Hill, 1 Vern. 167. was determined. The heir of a family dealing for an expectancy in that family, shall be distinguished from ordinary cases, and an unconscionable bargain made with him shall not only be looked upon as oppressive in the particular instance, and therefore avoided, but as pernicious in principle, and therefore repressed. This must be taken to be the esta blished principle. But it is objected that here the son had no allowance. That circumstance occurred in many of the cases. Nott v. Hill had every thing in its favour; the father was corrupt, it was clear of fraud, except such as arises from inequality only. In Barnardiston v. Lingood, (2 Atk. 133.) and Chesterfield v. Janssen, Lord Hardwicke treats inequality as a mark of fraud. Curwyn v. Milner, was perfectly free from fraud, it was £500 to pay £1,000 on the decease of either of the parents; he paid the money, and afterwards brought his bill, and was relieved on the same ground with the relief against marriage brokage bonds. In those cases, fraud is not the ground of relief; it is the example and pernicious consequences. It is contended that this case is not within the view. I think no man's case can be more so than an heir expectant of an estate tail, and the father in possession of another estate; so that he stood fully in the situation which has served as an example of unequal dealing in former times.-Its being mere subsistence, he having no allowance from his father, is no objection: that was the situation in Nott v. Hill, and in Twistleton v. Griffith, and is therefore no bar to the relief.-Its being hawked about, is not an objection, as it only shews the necessity he was under. The main evidence relied upon by the defendant, is that of the agent who transacted the business, and who knew at the time that he was transacting a matter of some legal danger. The deed of the 12th of June, 1775, granting the rent-charge, recites a calculation of the value of the annuity, at seventeen years' purchase; that Gwynne was desirous to sell, and had caused it to be advertised, that Heaton applied in consequence to Gwynne, and his agents, who proposed to secure it on the estate tail, and therefore in consideration of £5,100 he bargained. The circumstances of the long annuities not being transferred, for some time after, is not of great weight, as the security was good. The trustees being named by the advancer of the money, rather shews the superiority of fortune, than renders it insecure. It then comes to this; that Heaton the purchaser, knowing the actual state of the lives for which he was bargaining, the inequality which that introduced, and the indigence of the man with whom he was contracting, makes a bargain with him, which appears as enormous as that of Nott v. Hill, without one circumstance to cast a shade over the case. The deeds must be set aside.-Then on what terms must it be? The conveyance must remain as a security for all 1778. GWYNNE v. HEATON. [ 10 ] [ 11 ] all the money really advanced, and this must include the expence of the securities. The insurance, as far as it goes to the £2,300, must certainly be taken in; and I am inclined to think, that upon the contingency must also be allowed. Interest must be computed upon what he has so paid, from the time of payment. Then this reduces it to the case of a mortgage, which includes the costs of working out the redemption, unless the conduct of the mortgagee requires a difference. It was so done in the case before Lord Cowper, in Williams (Twistleton v. Griffith,) Lord Chancellor directed full costs, and this is explained liberal costs. But there are circumstances in this case that particularly lead me into this determination: The plaintiff has not, in the bill, put this case upon the point on which he is to be relieved. It appears to me, that he, like another mortgagor, should pay costs of the redemption; but I should be glad to hear if the plaintiff's counsel have any objection. Mr. Attorney-General cited Lawley v. Hooper, 3 Atk. 278. and Lord Chancellor said he would think about the costs. Accordingly on the 28th of July, at Lincoln's-Inn-Hall, Lord Chancellor said, the money really advanced, must be paid with interest, together with the expences of the deeds, and insurance, and the costs of taking the account must be added, for that must be in every case(a); although it seems very hard, where a contract is set aside upon an equitable ground, that still the contract should remain a security for all the costs generally, and which have been occasioned by the defendant's putting the plaintiff to the necessity of filing a bill, and by his defending a contract which ought not to stand; but the defendant to have no other costs* (c). * Vide Henley v. Axe, post, vol. ii. p. 17. and Heathcote v. Paignon, ib. 167. and Fox v. Muckreth, ib. 400. (b) [(a) As to the question of costs, vide Innes v. Jackson, 16 Ves. 356. Peacock v. Erans, ib. 512. Gowland v. De Faria, 17 Ves. 26. and the note to the case of Morony v. O'Dea, 1 Ba. & Be. 121.] [(b) The subsequent cases in which the subject of inadequacy of price has been considered, are Spatley v. Griffiths, post, vol. ii. 179. n. White v. Damon, 7 Ves, 30. Low v. Burchard, 8 Ves. 133. Coles v. Trecothick, 9 Ves. 234. Burrows v. Lock, 10 Ves. 470. Mortlock v. Buller, ib. 292. Underhill V. Horwood, ib. 209. and 14 Ves. 28. Lowther v. Lowther, 13 Ves. 95. Western v. Russell, 3 Ves. & Bea. 187. M'Ghee v. Morgan, 2 Sch. & Lef. 395. n. Et vide Sngd. Vend. & Purch, 226. et seq. and the other cases cited, ib.] [(c) As to contracts with expectant heirs vide Coles v. Trecothick, 9 Ves. 234. Peacock v. Erans, 16 Ves. 512. Gowland v. De Faria, 17 Ves. 20.] WHITE V. WHITE and others. 1778. S. C. 11 Serj. Hill's MSS. 500. as his executor executor's name, this is no revoca RICHARD Holt, possessed of a considerable personal estate, made his will the 6th of October, 1769, and, after giving Testator gives a various legacies, disposed of the residuum of his estate as follows: moiety of the reHe gave one half thereof to the Foundling hospital, and the other sidue, to such moiety to the Lying-in hospital, and if there should be more than Lying-in hospital, one of the latter, then to such of them as his executor shall appoint. should appoint; He then appointed of Castlegate, his executor; he afterwards but the testator afterwards struck out the executor's name, and strikes out the appointed no other executor, and died in 1775. Benjamin White, and dies without the plaintiff, proved the will as a testamentary paper, and took appointing any administration with the paper annexed, as one of the next of kin. other executor; The defendants are the other next of kin, and the governors of the tion of the legacy, Foundling hospital, and of the several Lying-in hospitals. The but the Court plaintiff in his bill insists, that the devise of the moiety to the Lying-in hospital, became void by striking out the name of the executor, who was to appoint, and that it should be referred to the Master, to report who are entitled as next of kin, and offers to account under the direction of the Court. The defendants, the next of kin, also claim that moiety as being void. The governors of the Foundling hospital claim the moiety bequeathed to them. The governors of the several Lying-in hospitals submit their several claims. Mr. Madocks for the plaintiff :-So much of the will as is not obliterated, must be protected.-If the devise had been to the Lying-in hospital, parole evidence must have been admitted, to have explained what hospital he meant: but the testator was aware of this, and took care there should not be a latent ambiguity, he therefore referred it to his executor which should take. Then, the appointment being revoked, the devise itself is revoked, for there is now no person existing who can appoint. How far they will argue that it devolves upon the Court to judge, I know not; but the cases will not support them in that doctrine. In Lady Downing's case, where the college was pointed out, together with the statutes by which it was to be governed, the Court held, that they had sufficient demonstration of the testator's intent to carry it into execution. So, where money is to go to charity generally, it devolves upon the crown to mark out the charity. Where it is left to a superstitious use, the crown shall appoint the charitable use to which it shall be applied. That is not this case; here is no sufficient demonstration that it should go to a Lying-in hospital. In the case of a private charity, the intent of the testator has greater weight than the jurisdiction of this Court, which can only be subsidiary. He having said the executor only shall appoint, and the testator having revoked his name, he meant to revoke the devise. Mr. will appoint. [ 15 ] |