Knatchbull and others v. Kissane and others [1818] UKHL 5_Dow_389

UKHL
Knatchbull and others v. Kissane and others
[1818] UKHL 5_Dow_389
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session , 1816—17.57 Geo . III.IRELAND.APPEAL FROM THE COURT OF CHANCERY.

No. 20

Knatchbull and others Appellants v. Kissane and others Respondents

Feb . 25 , March 2 , 1818 .after, by will, secures the provision upon other property, in case the lease should be evicted.—G. after he came of age, accepts the rent, and gives receipts for it. K. dies. Bill against his son, the widow, and her trustees, by G. and his trustees (the remainder-men not made parties) to have the new lease delivered up to be cancelled, as being fraudulent, and void—and the bill dismissed below. But the decree reversed by the House of Lords declaring that the lease, as between the lessor and lessee, was such as ought to be cancelled, but remitting to the Court below to proceed, with respect to relief as against the widow and her trustees, as should be just.FRAUD. — CONSIDERATION, &C.K. holding certain premises under a lease made in 1769, for three lives at 300 l . rent in 1802, obtains from G. tenant for life of the premises, with power of leasing at the best rent, then under age, and in embarrassed circumstances, by the offer of immediate payment of a year's rent then due, but by the custom of the country not payable till half a year after, and by a promise to plant on the premises 10,000 trees for the benefit of the landlord, and to make over to him those already planted, a new lease of the lands at the old rent, substituting instead of the two of the old lives, two young lives:— the lease, however, containing nothing about the trees planted, and no covenant to plant the 10,000 trees, but only an agreement endorsed on the lease to plant them. The old lease still retained by K. and no trees planted by him; but immediately after execution of the new lease of 1802, he assigns that lease upon trust to secure a provision for a wife whom he then marries; and soon

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Bill filed, 1807.Old lease, 1769.The bill, filed in the Court of Chancery in Ireland, in 1807, stated that a lease of certain lands, in the county of Tipperary, was granted by one Mathew, the proprietor in fee, to William Kissane, in 1769, for the lives of the said William Kissane, and of Leonard Doharty and John Bray, and the survivor of them, at the annual rent of 300 l . 5 s . payable half yearly, that the lease was duly enrolled, and that Kissane continued in possession till his death, which happened in 1804.Title.Power.The bill then stated a sale and conveyance of the lands in fee, in 1783, to George Goold, who, by will, dated 1787, devised the lands to his grandson, Henry Michael Goold, for life, remainder to his issue male in such proportions as he should, by deed or will, appoint; and for want of such appointment to the testator's eldest son, with remainders over: and with a power to the said Henry Michael Goold to lease for three lives, or thirty-one years, to commence in possession, at the most improved yearly rent and without fine. The

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New lease, 1802.The bill then stated that Henry Michael Goold had been very extravagant, and had contracted debts to a large amount at a very early period of life: that in 1802 he visited his estates in the county of Tipperary, and was then, while still under age, prevailed upon by Kissane to execute a new lease of the lands at the old rent, though the lands had trebled in value, substituting the life of Elizabeth Chadwick, then eighteen years of age, whom Kissane was about to marry, and the life of his son William Kissane, then of the age of sixteen years, instead of the lives of Doharty, who was then above sixty years of age, and of Bray, who was dead, though Goold was kept in ignorance of that fact; the inducement held out by Kissane, being a promise to pay immediately a year's rent, which was then due, but, by the custom of the country, not payable till half a year after; a promise to plant 10,000 trees, and to make over to Goold those already planted. That Goold executed the lease without perusing it, that he had nobody to advise him at the time, that he was ignorant of the value of the lands, that the lease did not contain any grant of the trees on the premises, and that, in point of fact, there were none on the premises; that Kissane did not deliver up the old lease, alleging that it was then in Dublin, and that he did not pay the year's rent immediately, but only gave a bill of exchange for it payable forty-one days after date.Marriage settlement.Will.Prayer.

The bill further stated that, the lease having

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Answers.In the answers it was insisted that the new lease was obtained without fraud on the part of Kissane, who was then only sixty-three years of age, and not seventy, as alleged in the bill, in consideration

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Evidence.Evidence was given on the part of the Plaintiffs (Appellants), that Goold, at the time of executing the lease, was under age; that the lands, on a lease for three lives, were worth, in 1802, from 600 l . to 900 l . a-year. A witness who was present at the execution of the lease, deposed that nothing was then said as to Goold's age; that Goold was greatly embarrassed in his circumstances when the new lease was executed, and that Kissane knew it; that the lease was produced by Kissane ready for execution, at the time of the agreement with Goold; and that Kissane alleged, as a reason for not delivering up the old lease, that it was then in Dublin, and that, in fact, it was not delivered up.The Defendants produced Bray and Doharty as witnesses, who said they were in good health in 1802, and were, at the time of their examination, of the respective ages of fifty and forty-seven years.

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Bill dismissed below, 1814.Appeal.The cause having been heard on the 11th July, 1814, the Court below dismissed the bill with costs, and from this decree the Plaintiffs appealed.Sir S. Romilly and Mr. Roupell (for Appellants). The lease of the 2d October, 1802, was obtained from the Appellant, Henry M. Goold, fraudulently, by misrepresentation and concealment, and without consideration. The fraud is evidenced by the transactions themselves. The Appellant was a very young man, not even of age, inexperienced in matters of business, ignorant of the value of land, and who had, by his extravagance, involved himself in debt, and was raising money by the most improvident means. This was known to Kissane, who was a very old proprietor and occupier of land in that part of Ireland, and well acquainted with the value of land there. The bargain was made by Kissane with the Appellant, Henry M. Goold, himself then a minor, and who had no professional or other assistance.—The lease of 1769, which was then subsisting, was held on two lives, both of which were persons far advanced in years, and for which two lives were substituted, the lives of two young find healthy persons; this advantage

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He who afterwards received the rents for Goold was present at the execution of the lease, but he was, at that time, neither agent nor receiver, but a mere stranger. Then it may be said if the lease is void you need not the aid of equity. But it is quite common for equity to interfere to compel the delivering up of deeds invalid at law— Underhill v. Horwood , 10 Ves. 209— Bromley v. Holland , 7 Ves. 3; and the reason is, that they may not remain with those who can make no legal use of them, and continue a cloud on the title.Mr. Wetherel and Mr. Wingfield (for Respondents).—The bill was defective for want of parties, the remainder-men who had an interest in the subject not being before the Court. The bill too did not offer to replace the interest under the old lease; and these defects might be relied on as grounds for dismissing the bill, in case the decree could not be supported on the principle about to be stated.1st. With respect to Goold, no deception is here charged; and direct fraud being absent, supposing him to have been under age, the lease is not void but voidable, as in Zouch v. Parsons , 3 Burr. 1794; and the lease was confirmed by him, by his acceptance of rent under it after he was of age. The rule is the same in equity as at law. Here it is clear, that rent was accepted by him three or four years after he came of age. Suppose, then, that fraud is absent, though the landlord may, from

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2d. Then, with respect to the remainder-men, they say, that it is unnecessary to make them parties, because the lease cannot bind the remainder-men, as the lands are not let at the best rent. But if the lease is valid as against the tenant for life, the objection to it is premature. The title of the remainder-men has not accrued, and they are not parties: and equity never acts by anticipation. This is said to have been the ground of the decision below. Equity will not cancel the lease by anticipation, and non constat , but the cestui que vies may be dead before the title of the remainder-men accrues. The delivering up the instrument, lest it should be a cloud on the title, does not here apply; for the lease is not void with respect to Goold.Suppose the lives in the old lease were dead, the remainder-men might have an interest to contend that the new lease was a good one, and were necessary parties. It is common to order deeds to be delivered up to be cancelled; but we are not litigating that point generally, but whether, under the peculiar circumstances of this case, the lease ought to be delivered up, and Bromley v. Holland , 7 Ves. 3. is no authority in this case. It was said to be essential, if bad as to the remainder-men, that it should be challenged by Goold.—Why? It is merely a question of time. If he was a minor at the time, the lease is only voidable, and he confirmed

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They cannot succeed unless they establish gross misrepresentation. But there is no such thing; and there are repeated acts of confirmation.Lord Eldon (C). There is no want of parties here; for the lease is void at law as to the remainder-men, because it is a bad execution of the power, which requires that the most improved rent should be reserved.

Sir S. Romilly (in reply). They say there is no

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Judgment. March 6, 1818.Title not disputed.Lord Eldon (C). This is an appeal from a decree of the Court of Chancery in Ireland, and the Appellants represent that they filed their bill in that Court in May, 1807, stating that Thomas Mathew being seized in fee simple of the towns and lands of Knockballymaloe and Kilross, in the county of Tipperary, he, in July, 1769, granted a lease thereof to William Kissane now deceased;

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Remainder-men not necessary parties.I observe here, before proceeding further with the statement, that the reasoning and the objection, founded on the want of the remainder-men as parties, cannot be sustained; as the lease from Goold to Kissane is clearly proved not to have been let at the most improved rent, and therefore is and must be void as against the remainder-men if they choose to quarrel with it.And further stating, that the Appellant H. M. Goold had been very extravagant, and had contracted debts to a large amount at a very early period of his life,—which was very probably the case, he being like many young men, who, being extravagant and in debt, are reduced to difficulties, and led by their embarrassments into improvident contracts: and then they complain that they have been imposed upon, and sometimes take as much advantage of others, as they say others have taken of them.And further stating, that Goold being, in the year 1802, in the county of Tipperary, the said William Kissane, who was then far advanced in years; I pass over the other allegations that he was crafty, and so on—and skilled in the value of lands, and ready to take advantage of a young man, formed a design to impose on the Appellant, Henry Michael Goold, who was thoughtless and inconsiderate, to

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Your Lordships will permit me to notice, that the matter, stated by way of allegation in a bill is not always true; but often the mere coinage of the imagination of the drawer of the bill; and as to the alleged death of Bray, if he was the same Bray who was examined as witness, he must have been alive: and he says, in his evidence, that instead of being dead in 1802, he was then alive, and in good health—“and is now of a good healthy constitution; and is now about the age of fifty years.” And Leonard Doharty, who was stated to have been in 1802 above the age of sixty years, says, that instead of having been then above the age of sixty, “he was in a right good state of health and constitution in the month of October, 1802; and is now of the same good state of health and constitution, and is now of the age of forty-six or forty-seven years.”I suppose it may be taken for granted, that these persons were the same mentioned in the bill; and though perhaps they somewhat under rated their ages, as we are all apt to do, yet alive they certainly

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However, we must take the representation to be correct for the purposes of this cause.And further stating, that the Appellant's, Henry Michael Goold's, execution of the said parchment writing was procured from him by a fraudulent representation and suppression; that the Appellant never read the said parchment writing, and that the said William Kissane had, unknown to the said Appellant, caused the said lease to be filled up with his, the said William Kissane's own life, with that of the said Elizabeth Chadwick, and also with the life of the said William Kissane's son, who was then of the age of fourteen years or thereabouts; and at the annual rent of 300 l . 5 s . being the same rent as had been reserved forty-six years before; and that such new lease did not contain any grant of the trees then on the premises, but which had turned out to be immaterial, as the said William Kissane had not planted any thereon, and that the said William Kissane had kept the original lease in his possession,—alleging that the

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Your Lordships then see how the case stands. Young Goold goes to Ireland in 1802, and grants this lease in the way which has been stated. Whether he was then embarrassed and involved in debt or not, he seems to have been, at least, so much in want of ready money, that it was material to him to have a year's rent paid down, instead of waiting for the usual time of payment, according to the custom of the country. And accordingly a bill of exchange, payable in December, 1802, was drawn; and on looking at the original bill you find a writing on the front of it, which they call an endorsement. That is not usually the manner here, where generally an endorsement is made on the back, and not on the face of the bill. Kissane was then in possession under the old lease held for these lives, in the full vigour of their youth and constitution; and when the new lease was made, therefore, if this had been perfectly fair on all sides, the new lease would be granted in consideration of the surrender of the old lease. But, as one has heard of on other occasions, it was thought safest to have two strings to the bow: and

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The old gentleman, although we must not say that he was so crafty as he was represented in these papers to be, was, at least, very provident, for the next week after the execution of the lease he settled it on the lady whom he married. It does not appear that they made any provision as to the issue; and it so turned out, as might have been expected, that there was no issue of that marriage.Then after the settlement on the lady, he seems to have been casting his eye back upon the transaction, with respect to the execution of the lease, and to have had some doubts whether they were not such as rendered its validity rather questionable; perhaps, as it has been represented, because Goold had not told him that he was only tenant for life, with a power of leasing at the best rent. But however that was, he, in his will, devises all his

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The way in which Knatchbull and the other Appellants became interested was by a trust deed from Goold.The bill charges that the lease was made at a gross under value, and that it was proved that the premises were worth a great deal more rent; that Goold had never been in Ireland before, and was unacquainted with the value of the property; although it is admitted that Cooke, who was afterwards his receiver, was present at the execution of the lease. And, on the whole matter, the bill prayed that the lease might be set aside, without offering the conditions which Kissane would be entitled in equity to have annexed to that determination.We called for the original lease. I do not know whether timber is of any value in the county of Tipperary, but Kissane agrees to plant 10,000 trees, which were to be suffered to grow for the benefit of the landlord. The lease, however, was drawn

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The Lord Chancellor of Ireland was of opinion, and I beg to be understood as never speaking of his opinions but with the greatest respect, that the bill should be dismissed, leaving matters as they were before. Now it is impossible that it could be right simply to dismiss the bill, because, if the lease of 1802 was valid, the decree ought to have directed the old lease to be delivered up: and if that had been objected to, because the remainder-men were not parties, and they might be interested to set aside the new lease; or because Kissane did not know that Goold was only tenant for life; still such an arrangement might have been made as would have protected Kissane in the possession to the extent of the interest under the old lease, as far as Goold could have protected him; so that it was impossible it could be right as it stood.Fraud.Then another question is whether, without using the word fraud , which is often misunderstood when lawyers use it, this is a lease that can be sustained. It was contended by my learned friend at the bar (Mr. Wetherel) that there was not sufficient charge of fraud to get rid of the lease on that ground. But I think he will agree with me that if there is that in the bill which, in

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Want of consideration.Now, attending to the absolute want of consideration in this case, equity cannot but feel a strong disposition to set aside the lease. He has a lease for his own life, and those of Doharty and Bray; and however stout these might be, they were less valuable lives than the life of this lady, eighteen years of age, and of Kissane's son, fourteen or sixteen years of age, which were the lives substituted in the lease of 1802. And how can it be contended that the substituting, for a lease for three old lives, a lease for one old life and two young ones, at the same rent, when the lands were worth double the old rent, was a transaction in which valuable consideration was given by Kissane? And then Goold covenants absolutely for the validity of the lease; and, though he got nothing, he was liable for the value with his purse, and even with his person if he could not pay: and further, the old lease remains in the hands of the lessee as a shield; I do not say it was intended as a fraud; but there is enough to show that Kissane was anxious, in case Goold had quarrelled with the new lease, to have the old lease to set up against him. And when you consider the temptation of an immediate sum of money held out to a young man greatly in want of ready money; and then the notion of wood being given to him, of which there was not a stick on the property; and that you do not find inserted in the lease what was agreed upon as to the planting of trees; it does appear to me

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I am always afraid, when dealing with these Irish cases, that I may overlook some peculiarity in the mode of proceeding in that country. But I am authorized to say, that this case has been considered by a Noble and Learned Lord well acquainted with the Irish practice, and that he concurs with me in this opinion. But if we order the lease of 1802 to be delivered up, we must take care that justice is done, and that the enjoyment shall continue under the old lease, and that Kissane's representatives should be relieved from the obligations of the new lease.Alleged acts of confirmation.I do not rest much upon the alleged acts of confirmation in receiving the rent. If the old lease had been delivered up, they would have been much more material. And without entering into the question about leaving a cloud on the title, the circumstance of Kissane's having the old lease in his possession is one which establishes the jurisdiction; for, whether he was an infant at the time of executing the lease, and afterwards confirmed it, if it was in his power to confirm, or an adult, he could never have gone to law; for they would have pulled out the old lease, and have said—we hold by this title.Lease void as between Kissane and Goold.Then what I propose is, that the lease of 1802 be declared void as between Kissane and Goold, without prejudice to the old lease.

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State of the case as between the wife and Goold.Then there is another point, as to which I wish to know, whether the parties desire that there should be any further proceeding. Kissane seems to have thought that his chance for the lady would be increased if he got the new lease: he weds the lease, and then, eo instanti , he marries Miss Chadwick, and settles it on the wife. Now whether the lease is bad, as against Kissane, and whether it is bad as against her, a purchaser for the most meritorious consideration, that of marriage, are different questions: and though this point did not require attention in the previous state of the proceedings, it may be material now.This is not much worth her agitating; but if she wishes to agitate that matter, as the Court has not considered this before, I apprehend the cause ought to be remitted with a declaration as to these points, and so calling the attention of the Court to the state of the case as between her and Goold. But if the lease is bad as between Kissane and Goold, it does not appear important for her to carry it further, regard being had to the provisions of the will and the equities of Goold.The Judgment of the House, after the usual recitals, was in these terms:Decree below reversed. Remit.claiming under the lessee as volunteers, to be delivered up and cancelled: but it being represented to the Lords that the Court of Chancery in Ireland, having dismissed the bill, did not proceed to take into consideration whether the relief or any and what part of the relief prayed by the bill, in case the lease was to be considered as invalid as between the lessor and lessee, and such volunteers ought to be granted as against Elizabeth Chadwick, now Elizabeth Armstrong, and her trustees, or any other points arising in the said cause in such cases as aforesaid: it is therefore ordered that the cause be remitted back to the Court of Chancery in Ireland to proceed therein as may be just, and as is consistent with this Judgment.”
“That the said decree complained of in the said appeal dimissing the Appellant's bill with costs, be and the same is hereby reversed: and it is hereby declared that the lease of the 2d Oct. 1802, prayed by the bill to be declared fraudulent and void and to be cancelled, is a lease which ought, as between the lessor and lessee, and those

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