This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(1831) cited 4 Si. 202; and Sherwood v. Robins, (1828) 1 M. & M. 194.
(y) Talbot v. Staniforth, (1861) 1 J. & H. 484; Visct. Valcntia v. Denton, (1867, V. No. 34), M. R. 29 July, 1872, where the purchaser's actuary admitted that the contingency was incalculable, and the sale was set aside; and see Barnardiston v. Lingood, (1740) 2 Atk. 133, 135 ; Addis v. Campbell, (1841) 4 Beav. 401 ; 10 L. J. N. S. Ch. 284 ; Davies v. Cooper, (1840) 5 M. & C. 270 ; Boothby v. B., (1849) 1 M. & G. 604; Woodroffe v. Allen, (1832) Hay. & J. 73 ; Sug. 14th ed. 277. Father and son, when dealing with a third person, need not be represented by separate solicitors, S. C.; Cooke v. Burtchaell, (1842) 2 D. & War. 165.
(z) Kendall v. Beckett, (1830) 2R.& M. 88; 9 L. J. (O.S.) Ch. 24 ; Bawtrcc v. Watson, (1834) 3 M. & K. 339; Davies action was set aside as against the sub-purchaser, on re-payment of the price paid on the first purchase (d) : but the case would have been different if the sub-purchaser had had no notice of the original fraud, even though he might not have acquired the legal estate (e).
V. Cooper, (1840) 5 M. & C. 270 ; Edwards v. Browne, (1845) 2 Coll. 100; see Sewell v. Walker, (1866) 12 Jur. 1041.
(a) See Edwards v. Burl, (1852) 2 D. M. & G. at p. 57.
(b) In Nerill v. Snellineg, (1880) 15 Ch. D. 679 ; 49 L. J. Ch. 777, relief was afforded to a younger son of a peer who had no other expectations than such as arose from the social position of his father ; see p. 756.
(c) Lord Chesterfield v. Janssen, (1751) 2 Ves. sen. 125; and see generally the notes to that case, 1 Wh. & T. L. C. 7th ed. 289 ; Wiseman v. Beake, (1690) 2 Vera. 121 ; Cole v. Gibbons, (1734) 3 P. W. 290, 293; Sug. 14th ed. 276; King v. Savery, (1853) 1 Sm. & G. 271 ; Earl of Aylesford v. Morris, (1873) 8 Ch. 484 ; 42 L. J. Ch. 546.
It was laid down (/), First, that this extraordinary protection must be withdrawn from the heir, "if it shall appear that the transaction was known to the father or other person standing in loco parentis, - the person, for example, from whom the spes successionis was entertained, or after whom the reversionary interest was to become vested in possession,- even though such parent or other person took no active part in the negotiation, provided the transaction was not opposed by him, and so carried through in spite of him. Secondly, that if the heir flies off from the transaction, and becomes opposed to him with whom he has been dealing, and repudiates the old bargain, he must not, in any respect, act upon it so as to alter the situation of the other party, or his property; at least, that if he does so, the proof lies upon him of showing that he did so under the continuing pressure of the same distress which gave rise to the original dealing."
What circumstances will deprive heir of special protection- rules laid down in King v. Hamlet.
The first of these propositions was criticized by Lord St. Leonards, on the ground that the equity is that of the son, not of the parent: and V.-C. Wood considered its meaning to be, that where the heir deals not behind the back of his father, but with his sanction and assistance, he has all the protection which his father can give him, and is not entitled to the same relief as if the contract had been entered into without such parental protection (g); and it is conceived that, except in the sense so attributed to it, the proposition cannot now be sustained (h). As to the second of the above propositions, Lord St. Leonards has observed, that without the concluding qualification it could not safely be acted upon (i).
Lord St. Leonards' and V.-C. Wood's comments thereon.
(d) Addis v. Campbell, (1841) 4 Beav. 401 ; 10 L. J. N. S. Ch. 284 ; and see Savery v. King, (1856) 5 H. L. C. 627 ; 25 L. J. Ch. 482.
(e) See Kagle v. Baylor, (1842) 3 D. & War. 60 ; see too Sibbering v. Karl of Balcarres, (1850) 3 De G. & S. 735 ; and at Law, Stevenson v. Xeunham, (1853) 17 Jur. 600 ; 22
L. J. C. P. 110; but see contra, where the property is an equitable chose in action, Cockell v. Taylor, (1851) 15 Beav. 103; 21 L. J. Ch. 545. See, however, Barnard v. Hunter, (1856) 2 Jur. N. S. 1213, where this decision was disapproved by Lord Cranworth.
(/) King v. Hamlet, (1834) 2 M. & K. at p. 473.
Family arrangements are exempt from the strict rules applicable to cases between ordinary vendors and purchasers (k) ; and a transaction of this nature between father (tenant for life) and son (tenant in tail) does not fall within the exceptional rule which we are now considering (/). But such arrangements are justly regarded with jealousy by the Court (m) ; especially when entered into shortly after the child attains majority, or when the parent derives considerable benefit (n). The onus in such a case is on the father to show that the child had independent advice, and that he executed the deed with full knowledge of its contents, and with a free intention of giving the father the benefit conferred by it; and this onus extends to any volunteer, or purchaser with notice, claiming through the father, but not to a purchaser for value without notice (o). At the same time, if there is no misrepresentation or suppression (p), and the transaction is in the nature of a re-settlement for the common good of the family (q), it will be supported, notwithstanding the exercise of parental influence (r), or the non-employment of an independent professional adviser (s). Nor is it necessary in order to support such an arrangement that it should be a compromise of doubtful or disputed rights; the preservation of the estate may be a sufficient motive : and, in such cases, the Court does not minutely weigh the quantum of the consideration it). And because such an arrangement is to some extent unfair, it is not necessary that it should be wholly set aside, and the Court will, where the circumstances allow, rectify the settlement (u). But where the motive for the settlement is a representation which, though innocently made, is in fact erroneous, the settlement will be set aside (x), and the transaction, if it is to be supported, must be strictly a family arrangement: thus, where a tenant for life purchased from his nephew the reversion in the family estate, without any provision for its re-settlement, the case was held to fall within the general rule as to reversionary interests (y). There ought, however, to be no unnecessary delay in seeking to set aside such a transaction (z).