James Butler, Esq. (commonly called Lord Dunboyne) v. Daniel Mulvihill, and others [1819] UKHL 1_Bligh_137

UKHL
James Butler, Esq. (commonly called Lord Dunboyne) v. Daniel Mulvihill, and others
[1819] UKHL 1_Bligh_137
REPORTS OF CASES HEARD IN THE HOUSE OF LORDS, UPON APPEALS OR WRITS OF ERROR, And decided during the Session , 1819. 59 Geo . III.SCOTLAND.APPEAL FROM THE COURT OF SESSION (FIRST DIVISION).

No. 5

James Butler , Esq. (commonly called Lord Dunboyne) Appellant v. Daniel Mulvihill , and others Respondents1819 .A LEASE obtained by fraud and circumvention, from a person in a state of intoxication, is void in equity.A lease for lives of lands in Ireland, renewable for ever, is not absolutely forfeited by extinction of all the lives and neglect to pay the fines for renewal, even after notice from the lessor. Under particular circumstances, (as in the following case,) the right of renewal may still exist and be enforced.In a case wherea. A. the heir of the lessee, having such right, had entered into an agreement withb. B. respecting an independent lease of the lands held under the renewable lease by the ancestor of A., which independent lease B. had obtained from the landlord when in a state of intoxication, and by circumvention:—It was held, that the heir of A. and purchasers for valuable consideration, claiming under him, were entitled in equity to the benefit of the agreement between B. and A., and that the heir of the landlord (lessor) was entitled to the benefit of the same agreement, so far as B. took an interest.LEASE FOR LIVES.—FRAUD.—INTOXICATION.—LAPSE BY LACHES.—RIGHT OF RENEWAAL.—REMITTER.—EQUITIES.The Respondent, Daniel Mulvihill, filed his bill of complaint in the Court of Chancery in Ireland, against the Appellant, praying that the Appellant might be decreed to grant to the Respondent D. M. a renewal of a certain lease in the bill, stated to bear date the 5th of July 1718, by inserting the life of Walter Molony in the place of Anthony Brady. The bill stated the following case:

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Garret Gough, being in and before the year 1718, seised of the town and lands of Ballyvannon and Tullahara, with their sub-denominations, by indenture, bearing, date the 5th day of July, 1718, demised the said premises unto Joseph Ringrose, subject to the yearly rent of thirty pounds; to hold unto the said Joseph Ringrose, his heirs and assigns, for and during the life and lives of the said Joseph Ringrose, Richard Ringrose, and Elias Ringrose, and the survivor of them, and the lease contained a covenant for perpetual renewal, on payment of five pounds, as a renewal fine on the fall of each life, and the nomination of another life.Joseph Ringrose, by virtue of the lease, entered into, and continued seised and possessed of the premises,. until the time of his death, which happened in the year 1758. He left two sons, Jacob Ringrose and Philip Ringrose. Jacob, as eldest son and heir at law, entered into and became seised of the said lands, and continued so seised to the month of July, 1778, when he died without issue, leaving Philip Ringrose his brother and heir at law, who thereupon became entitled to the said lands and premises.John Brady, nephew of Jacob Ringrose, having alleged that Jacob Ringrose had devised the said lands and premises to him, and all the persons named in the said original lease, as cestui que vies , being dead, obtained a renewal thereof in his own name from James Butler, the Appellant's father, in whom the fee of the said lands and premises were then vested, for the lives of him

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By indenture, bearing date on the 4th of July 1793, John Brady declared that he had taken the said renewal in trust for Philip Ringrose; and by the same indenture, Philip Ringrose demised the said premises to John Brady, for the life and lives of him the said John Brady, Anthony Brady his son, and Mary Brady his wife, at the yearly rent of one hundred and forty-two pounds; by virtue of which demise, John Brady became, and continued seised and possessed of the premises.By a deed bearing date the 26th day of July, 1793, Philip Ringrose, for the considerations therein mentioned, conveyed and assigned all his estate, right, title, and interest, in and to the premises to Walter Weldon Molony, his heirs and assigns.By indenture, bearing date the 27th day of December, 1794, Philip Ringrose and Walter Weldon Molony, in consideration of a marriage then intended to be solemnized between Walter Weldon Molony and Mary Spellisy, granted &c. to the respondent Daniel Mulvihill and Walter Weldon since deceased, the towns and lands of Ballyvannon aforesaid, with its sub-denominations, subject as therein mentioned, to hold, &c. for three lives, renewable for ever, in trust for the several uses, intents, and purposes in the deed mentioned.

James Butler died in the year 1784, and one of

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The Appellant having refused to renew the lease of 5th July, 1718, according to the request, and upon the terms proposed, the bill was filed against him, containing such allegations and prayer as before stated.The Appellant, by his answer, after admitting many of the principal facts alleged in the bill, proceeded to state, that although, upon the death of Joseph Ringrose in 1758, Jacob Ringrose, his son, became seised under the lease of 1718, and so continued until 1778; yet the said Jacob omitted to renew the said lease, by nominating any other life in place and stead of Joseph Ringrose, and omitted to pay the rent and renewal-fine; and although, in the life-time of the said Jacob, namely, between the said years 1758 and 1778, Richard Ringrose, another of the cestui que vies , died, Jacob Ringrose also omitted to renew the said lease, by nominating a life in

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The answer denied that John Brady, at any time, obtained a renewal of the lease of 1718 in his own name; and stated, that James Butler, who, upon the death of his uncle in or about the year 1778, succeeded as heir at law to the inheritance of the said lands, was a man of weak understanding, and addicted to excess in the use of spirituous liquors, and being educated in a foreign country, and bred up an officer in the German service, was unacquainted with his family affairs; that John Brady, being well aware of the laches and nonpayment of rent and renewal-fines under the lease of 1718, and of the forfeiture of the lease of 1718 thereby incurred, by the most fraudulent means, at a time when James Butler was in a state of intoxication, prevailed upon him to execute an instrument, purporting to be a new lease of the lands comprised

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That Philip Ringrose, on the 15th day of October, 1789, filed a bill in the Court, of Chancery in Ireland, against John Brady, impeaching the will alleged by John Brady to have been made in his favour by Jacob Ringrose, and praying possession of the said lands; to which bill John Brady filed his answer, insisting upon the validity of the said will, and that all the lives named in the said lease of 1718, were extinct, and that the term thereof was expired; and stating that he treated with the Appellant's father in whom the fee of the lands was vested, and who alleged that he was not then bound by the covenant of renewal contained in the lease of 1718; and that for several valuable considerations, he obtained a lease of the lands from the Appellant's father, which was executed in 1783, for three lives, renewable for ever; discharged from any claims on the part of P. Ringrose, or any person claiming in his right. And Brady by his answer, further denied that he accepted the said lease as a trustee for Ringrose.That after a variety of proceedings in the cause between John Brady and Philip Ringrose, they came to an amicable settlement; and that a certain deed, dated the 3d of July, 1793, was executed between them, by which, after reciting that Garret Gough was seised of the lands, and

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That after the execution of the said deed of compromise of 3d July, 1793, and the said lease of 4th July, 1793, Philip Ringrose, on the 15th of July, 1793, executed a mortgage of his interest in the lands to Walter Weldon Molony, his solicitor, to secure a bill of costs claimed by Molony against Ringrose for a sum of 1512 l .That Walter Weldon Molony, about the 25th or 26th of July, 1793, prevailed on Philip Ringrose to convey to him the equity of redemption in the lands in consideration of an annuity of forty-five

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That about the 22d of March, 1800, Philip Ringrose caused a bill to be filed in the Court of Chancery against Walter Weldon Molony and others, impeaching the said mortgage and conveyance for fraud, and charging, that the trustees named in Walter Weldon Molony's marriage-settlement or articles of 1794, had full notice of it; and praying that said deed of mortgage and bond executed therewith, and the said deed of conveyance of 25th or 26th days of July, 1793, and the marriage settlement of Walter Weldon Molony of 26th and 27th December, 1794, so far as same affected Philip Ringrose might be decreed fraudulent and cancelled, and praying a re-taxation of Molony's costs.That Molony and his wife, about the 3d of April, 1801, filed a cross bill against Philip Ringrose, insisting that John Brady obtained the said lease of 11th July, 1783, as a new lease for his own benefit, and discharged from the said old lease or any covenant of renewal therein contained.That Philip Ringrose, about the 10th November, 1801, filed his answer to the said cross bill, in which he does not deny that forty-five pounds were due for rent and renewal-fines of the said lands in 1766, and that some rent remained unpaid at the death of Elias Ringrose, the survivor of the persons named as cestui que vies , in the said original lease of 1718. He admitted that Brady wished to get a new lease to himself of the said

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That before any decree was made in the said cause, Ringrose acceded to some amicable settlement.That the Appellant attained the age of twenty-one years in July, 1801, and never since had received any rent for the lands comprised in the lease of 1783.That in the year 1801, the Appellant brought an ejectment to recover possession of the lands in question, upon the trial of which, John Brady produced and for his defence relied upon, the lease of 1783, and the jury gave a verdict in his favour.That the very limited circumstances of the Appellant prevented his taking proceedings to set aside the said lease of 11th July, 1783, as having been obtained by fraud and imposition.That James Butler died about the month of May, 1784, and not shortly after the said deed of release of 1794, as by bill alleged, leaving Appellant, his only son; who thereupon became seised of the said lands.That Anthony Brady, one of the lives in the lease of 1783, died on the 13th day of April, 1804.Finally, the Appellant, by his answer, admitted that he refused to execute a renewal to the Respondent, Mulvihill, of the lease of 11th July, 1783, or the lease of 1718, on the grounds before stated.

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The Respondents, on the 25th day of July, 1809, amended their bill, and thereby stated the death of John Brady. To which amended bill the Appellant put in his answer.The Appellant filed a cross bill against Daniel Mulvihill, Walter Weldon Molony and Mary his wife, and various other persons interested in the lease; and therein stated the fraudulent means by which the said lease had been, in the year 1788, obtained from his father, the said James Butler, and praying that the same might be declared to have been fraudulently obtained, and be given up to be cancelled.The Respondents by their answers, respectively insisted on the validity of the lease of 1783, and that they were purchasers of the beneficial interest of the same, without notice of any fraud.The original and cross causes being at issue, the Respondents respectively exhibited the several instruments under which they claimed to be entitled; and examined a person of the name of Dannaher, to prove that the lease of 1783 had been fairly obtained, and that the fines and rent then due had been paid at the time of the execution of the lease.The Appellant examined witnesses to prove, First, That the lease of 1783 was not a renewal of the lease of 1718: Secondly, That the lease of 1783 was obtained by fraud, practised on his father when he was so intoxicated as to be incapable of transacting business. Thirdly, That the Respondents, Mulvihill, &c. or those under whom they claimed, had at the time when they became,

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July 25.The causes came on to be heard in 1811, when the Lord Chancellor of Ireland declared, that the Respondent, Daniel Mulvihill, was entitled to the benefit of the covenant for renewal, contained in the lease, of the 5th of July, 1718, and directed the Appellant to execute a renewal thereof to the Respondent, Daniel Mulvihill, for the lives of the Respondents, Walter Molony and Arthur Molony, pursuant to the true intent and meaning of the covenant And in case the parties should differ as to the form of such renewal, or as to the premises contained in the said original lease, it was ordered that it should be referred to the master to compare the lease of the 11th of July, 1783, with the said original lease of the 5th of July, 1718, and thereupon to settle and approve of a proper renewal to be executed between the parties pursuant to the said decree.The Appellant thinking himself aggrieved by the decree, appealed to the House of Lords upon the following grounds:The said decree assumes, that the lease of 1718 was in such force, as to entitle the Respondents to a renewal of it, by virtue of the

Footnote

* Upon some of the points, and particularly the intoxication, see the depositions, post , p. 150.

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The lease of 1783 does not even purport to be a renewal of the lease of 1718; the several answers of John Brady and Philip Ringrose shew that it was not so intended, and that it includes lands not demised by the said lease of 1718.The evidence adduced by the Appellant proves, that the lowest rent which was at any time mentioned as the rent to be reserved, was two hundred pounds a year; whereas that actually reserved was thirty pounds a year, and the annual value of the premises very far exceeded even such rent of two hundred pounds a year.The Appellant's father, at the time when he executed the said lease, was in a condition of mind which did not allow of his duly judging of its contents.The lease so fraudulently obtained has not been confirmed by any subsequent act, either of the Appellant or his father.

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The Respondents who claim as purchasers for a valuable consideration, had notice of the fraud practised in obtaining the lease, and also of the Appellant's intention to impeach the same; and although this objection were founded in fact, it would not follow that the Respondents, as purchasers for valuable consideration, and without notice of a fraud, would be entitled to the assistance of a court of equity to give effect to a fraud practised by a person under whom they claim, more especially to the prejudice of an infant against whose estate such fraud is to be made effective.On the part of the Respondent it was insisted, that no fraud appeared on the deed of 1783, and that at this distance of time it would be impossible for the Respondents to enter into any proof respecting it. That the Respondents are purchasers for a valuable consideration, without any notice of fraud, (if any were practised by John Brady.) That Walter Weldon Molony gave a full and fair value for the conveyance of the lands to him; and there is no evidence whatever that Walter Weldon Molony knew any thing improper respecting the execution of the said renewal; that the said renewal, though not technically drawn, yet being made by James Butler, as heir-at-law of Doctor James Butler, of Thurles, to John Brady, as devisee of Jacob Ringrose, and at the rent and fine for renewal in the lease of 1718, must be equitably and substantially considered as a renewal, and not as an original lease.

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In support of the allegations of the bill filed by the Appellant, a passage from the answer of John Brady to the bill of Philip Ringrose was read; and upon the subject of the notice to renew, the value of the lands, the intoxication, the fraud practised, and the notice to the purchasers, the following evidence was adduced.Michael Donnellan deposed, that, in the beginning of July, 1783, a conversation took place, in deponent's presence, between John Brady and James Butler, touching a lease, or a renewal of a lease; the particulars of which conversation were, as well as deponent now recollects, as follows: “James Butler told John Brady that his lease of part of the lands which he held was out, for that the lives were extinct; and that although he had been served with notice to renew, and pay the rent and renewal-fines, yet he had neglected to do so; but James Butler added, that he would take no advantage of Brady's neglect; and Brady said, that he could hold the lands in spite of James Butler, and make them his own property, for that the statute of limitations had nearly run against James Butler, but that if James Butler would grant him a new lease, he would take the entire lands; and after some farther discussion, it was determined to postpone any agreement until they should go over the lands in the morning:” and deponent saith, that on the next morning Brady shewed deponent two of the farms on the lands, namely, Ballyvannon and Tullyhara., and sent an old man of his

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Saith, That James Butler and deponent, on the day after, went together from John Brady's house at Ballyvannon, into the town of Ennis; and James Butler remained at a low whiskey house in the town; and deponent slept at a friend's house; that in a day or two afterwards, Brady also came into the town of Ennis, and renewed his treaty for a lease with James Butler; that Counsellor Gregg having been sent for, he enquired for their title deeds and papers, and neither James Butler nor John Brady having brought them, Counsellor Gregg said it would be impossible for him, without seeing such deeds and papers, to determine whether James Butler had a right to make a lease for three lives, or whether John Brady had any right to withhold any part of the lands: and Counsellor Gregg thereupon refused to interfere: and deponent saith that, perceiving John Brady was very pressing upon James Butler, and knowing from the state of intoxication in which James Butler was constantly, that he would be easily led to make a foolish bargain, deponent sent to Mrs. Butler, &c. &c.: and deponent saith, that on the following day,

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Jonathan Gregg in his deposition stated, “that Brady had consulted him on the subject of the renewal, and the differences between him, (Brady,) and Butler; that he, Brady, on account of Ringrose's claim, had been in treaty with Butler to obtain a lease of the lands to himself;—that Butler, in the presence of deponent, had insisted that all right to renewal had been forfeited by the neglect of the tenants;—that on a subsequent day, between twelve and one o'clock, deponent accompanied Brady at his request, and upon his allegation that Butler had agreed to execute the leases which Dannaher was preparing at a public house in the neighbourhood; that upon going to the house, he found Dannaher writing at a table, and James Butler seated on the side of the bed, with a table, a jug, and glasses near him; and that

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Several other witnesses deposed to the same facts, and the intoxication of Butler was denied only by Dannaher. There was also proof that John Brady, after, having obtained the lease, called upon Mrs. Butler, and declared “that he never intended to make use of it;—that he had obtained it only to drive Ringrose to a compromise, and when that object was effected, he would give it up to be cancelled.”Depositions were also made to establish the allegation, that Walter Weldon Molony and Dr. Spellisy, his wife's father, had full notice before the settlement was executed, that the lease in question had been obtained by fraud, and that it was the intention of Mrs. Butler and the Appellant to question its validity. *All the material deeds set forth in the pleadings were proved in the Court below, and in evidence before the House.

Footnote

* According to the view of the case taken by the House of Lords, the question of notice became immaterial.The judgment was moved by Lord Redesdale, with very few observations. The Order penned by the noble lord is so distinct, accurate, and comprehensive, that a report of the judicial observations would be superfluous.

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For the Appellants, Mr. Fonblanque, Mr. Horne .—For the Respondents, Serjeant Copley, <link type="footref"><sup>*</sup></link> Mr. Wingfield .After hearing arguments for the parties, the following order was pronounced: “It is ordered and adjudged, That the decree complained of in the Appeal be reversed: And it is hereby declared, That the indenture of lease of the 11th July, 1783, in the pleadings mentioned, from James Butler, deceased; father of the Appellant, to John Brady, deceased, in the pleadings mentioned, ought to be, and is hereby deemed to have been obtained by the said John Brady by fraud and imposition; and the same ought to be, and is hereby deemed void, and of no effect, so far as the said John Brady had any interest therein, after the agreement entered into by him with Philip Ringrose, in the pleadings mentioned, but without prejudice to the rights gained under such agreement by the said Philip Ringrose, claiming to be entitled to the benefit of the lease of the 5th July 1718, from Garret Gough to Joseph Ringrose, in the pleadings mentioned, and of the covenant for perpetual renewal therein contained, as the heir at law of Jacob Ringrose, deceased, son of the said Joseph Ringrose, and impeaching the will of the said Jacob Ringrose, under which the said John Brady claimed and had obtained possession of the lands comprised in the said lease

Footnote

* Since appointed Solicitor-General.

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*** According to modern decisions, the father of the Appellant, and, à fortiori à fortiori , the Appellant himself, upon the evidence

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In Cooke v. Clayworth , 18 Ves. p. 16. Sir W. Grant, M. R. said, he apprehended that a deed obtained from a man in such extreme state of intoxication as to deprive him of his reason, would be invalid even at law; and by Cole v. Robins , which is cited in Buller's N. P. p. 172, it seems, that in an action upon a bond, the Defendant pleading non est factum , may give in evidence that he was made to sign the bond when he was so drunk that he did not know what he did. In Pitt v. Smith , 3 Campbell's Rep. p. 34. Lord Ellenborough appears to have laid down a similar doctrine with great latitude. For according to the Report, he says, “Intoxication” (without limiting the degree) “is good evidence, upon a plea of non est factum to a deed; of non concessit to a grant; and of non assumpsit to a promise.”This doctrine appears to be contrary to the law, as laid down in Co. Litt. 247 a, who says, “As to a person who, by his own vicious act, depriveth himself of his memory and understanding, as he that is drunken,—that kind of non compos mentis shall give no privilege or benefit to him or his heirs .” And again, “As for a drunkard who is voluntarius dæmon voluntarius dæmon , he hath no privilege thereby,” &c. The doctrine seems to be also contrary to the principle upon which it has been held that a man who is non compos shall not disable himself. The opinions have been various upon that subject:—But Littleton, in sect. 405, and Sir Ed. Coke citing the passage, and Beverly's case, are of opinion, that a man non compos cannot avoid his own act by entry, plea, or writ. And with that opinion accords the case of Stroud v. Marshal , Cro, Eliz. 398.As to relief in equity against a deed or agreement obtained from a man when drunk, it is laid down, that the having been in drink is no reason for granting relief; for this were to encourage drunkenness. But if, through the management or contrivance of the party who obtains the deed, &c. the grantor, &c . was drawn in to drink, relief is administered upon the ground of fraud. See Johnson v. Medlicott , 3 P. W. 130. note A. See also Rich v. Sydenham , 1 Ch. Ca. p. 202.; Cory, v. Cory , 1 Ves. 19.; Cooke v. Clayworth , supra, and Cragg v. Holme , there cited.

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The Scotch law' makes an important and necessary distinction:—

“Persons while in a state of absolute drunkenness, and consequently deprived of the exercise of reason, cannot oblige themselves; but a lesser degree of drunkenness, which only darkens reason, has not the effect of annulling the contract.” See Stair, July 29, 1672, Ld. Hatton. So Erskine in his Instit. p. 822, says, “An obligation granted by a person in a state of absolute and total drunkenness, is ineffectual, because the granter is incapable of consent.” incapable of consent.”
The rule of the French law, in cases of contract, is similar. See Pothier Traité des Obligations, p. 1. c. l. art. 4. “II est evident que l'ivresse, lorsque elle va jusqu'au point de faire perdre l'usage de la raison , rend la personne qui est en cet etat, pendant qu'il dure, incapable de contracter, puisque elle le rend incapable de consentement.” *To satisfy this rule, the drunkenness must amount to a privation of reason; but in gambling contracts, the protection afforded by the French laws to drunkards is more ample.For in such cases something far short of a privation of reason is sufficient to annul the contract. Pothier says, “Lorsque l'un des joueurs est dans un etat d'ivresse, le contrat que renferme le jeu est nul, &c. Nous parlons d'une ivresse qui, sans rendre la personne absolument incapable du consentement, peut seulement rendre imparfait son consentement en l'empêchant de faire les reflexions qu'elle eût pu faire si elle eût ete a jeun.” Traité du Jeu, c. 1. § 1. art. 2,So the law stood before the Revolution; and although the “Code Civil” forbids gaming, except upon martial or gymnastic exercises, and in general affords no remedy to the parties concerned, either to enforce the payment, or the recovery of money won or lost, yet the intoxication of loser at the time of playing, would form an exception, and the case would fall under the rule of the old law.The Civil Law has no text upon this head. The only allusion to the subject, so far as I can discover, is in the Digest, lib. 49. tit. 16. s.6. De Re Militari. “Per vinum aut lasciviam lapsis capitalis pœna remittenda est, et militiæ mutatio irroganda.”

Footnote

* See the translation of Pothier on Contracts, by Evans.