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1803.

O'HERLIHY

the payment of the 100l. fine, and in the actual possession of the wood by the defendant, and his accepting the advanced rent. (It was also attempted to be argued that Hedges had notice that Riordan was a trustee for the plaintiff, but it was not supported in proof.)

HEDGES.

Mr. Egan for the defendant. It is evident, and admitted by the argument for the plaintiff, that he was insolvent, and that Hedges never would have made a lease to him, nor to Riordan if he had known him to be a trustee for plaintiff: then this case falls within the reason of the decision in Eyre v. Popham, 1 Bro. C.C. 95, in notis; when Popham had, from Eyre having been guilty of a breach of a former contract, expressly refused to treat with him, a third person in trust for Eyre treated with Popham; an agreement was entered into, and Eyre filed his bill for a specific performance, which was dismissed. Philips v. the Duke of Bucks, 1 Vern. 227, is strongly in support of the same principle; and though Lord THUrlow is made to say, in 1 Bro. 95, that that case turned upon a difference of price, such a ground appears to have been but slightly touched on, and is not at all the foundation of the decision. 1 Fonbl. 113.

Lord CHANCELLOR.

I think in this case when we consider the grounds on which the plaintiff comes into a court of equity against Mr. Hedges, we shall feel that he has not made out sufficient ground of relief against him. The sole title on which the plaintiff puts his right to come into this court is, the rule in equity that a trustee shall gain no benefit to himself by any act done by him as trustee, but that all his acts shall be for the benefit of his cestui que trust. That rule is established in order to keep trustees in the line of their duty, but not for the pur

V.

pose of being an injury to a third person, if the principal 1803. injury shall be to him. Now that seems to be the ground O'HERLIT on which the plaintiff goes in this case, for he has no claim

HEDGES. against Mr. Hedges of any other description, but simply that controul which courts of equity assume over trustees to keep them within their duty.

This being so, what are the circumstances of this particu. lar case? The plaintiff has no right to complain that James Riordan was the apparent owner of the land, for he meant that he should appear so, and the concealment of any interest in the plaintiff was part of the agreement between them. The plaintiff meant that the world should consider Riordan as the owner of the lease, and Mr. Hedges was therefore to take him as owner. In most of the cases, the person contracting as trustee has been openly a trustee, as for instance an executor ;-has been a person whose character expressly appears in the instrument creating his title. Here, on the contrary, the very instrument on which the plaintiff relied to establish his case is dated in February 1790, and this contract is dated of the November preceding-so that the very deed on which the title of the plaintiff is founded is subsequent to the contract with Mr. Hedges, and at the time of the contract with Hedges, it does not appear that the Plaintiff could have established his claim against Riordan. That claim is now established.(a)

Under these circumstances the plaintiff comes into a court of equity. Now, what is the nature of the dealing between Riordan and Hedges ? It is manifestly a dealing on the part of Hedges with a man of substance, a man capable of performing the terms of the agreement ; such must have been the representation made to Hedges at the time ; and it could

(a) By the former decree.

1803.

O'HERLIHY

7). HEDGES.

not be imagined for a moment that the plaintiff would answer such a description. It is clear that Hedges cannot be compelled to perform this agreement, unless he has covenants from Riordan as a man of substance for the performance of these terms : now though, if the lease had been executed, Riordan would have been bound, and then the plaintiff would have had a right to an assignment on indemnifying Riordan from the covenants, yet where is his right to compel Riordan to enter into these covenants ? apprehend the principle of equity does not compel him to do so. (And I am to consider what was the value of the lands in 1789; not what it is now, and whether it was so valuable that another person would have been disposed to indemnify against these covenants.) But I cannot compel Riordan to enter into these covenants ; if he had entered into them, and had done an act that was fraudulent against his cestui que trust, he must have abided by the consequences ;

but not having done so, can I decree him to enter into these covenants? Yet I must do so, to make the decree that is sought ; on this ground, therefore, it is very difficult to make the decree that is sought.

Bill praying But the plaintiff by his bill does not offer any thing on execution of an the subject: he does not name lives to be inserted in the a lease for lives lease, which is an important part of this case, for the lease, ought to name the lives to be if any, must be for three lives : lives named in 1789 inserted.

might all have died, or two of them, or one of them might have died since. The circumstance of delay is very considerable in this case ; and it is no excuse that the plaintiff was under difficulties, for though that would excuse a delay that was prejudicial to himself, it would not excuse a delay that was an injury to a party who is now, in 1803, to have a lease forced upon him which ought to have been executed in 1790.

1803.

The whole case of the plaintiff rests upon part-performance; for without it, his case comes within the statute of frauds. Now what is the part-performance relied on? is it payment of the sum of 100l. ? that payment is no injury to the plaintiff: it is an injury to Riordan, who cannot be allowed it against the plaintiff: and the increased rent stands on the same ground(a).

O'HERLIHY

V. HEDGES.

Then comes the possession of the wood-land by Mr. Hedges, the only thing that makes any difficulty in the case. What are the circumstances with respect to that ? it is true he had 'the possession and cut down the trees. They were his own trees, and it was no injury to the tenant to cut them down, except the trespass on the land if he entered to cut them down without authority. But I will suppose that his object was to take this ground into his demesne : that object is defeated; for before he had raised his wall two feet high, these matters came out, and then he abandoned it. From 1792 to 1803 he had received no benefit from the contract : and it was not his fault that he had not, for he was deceived by the person with whom he contracted, who did not acknowledge that he was a trustee; and the instruments under which he claimed an interest do not shew him to be a trustee, so as to raise a constructive notice against Mr. Hedges. Is this a ground for a court of equity to interpose by decreeing a specific execution, which is an extraordinary mode of relief, given to aid the defective relief that a court of law can afford, which can only give damages ? Suppose Riordan had brought his action against Hedges, what damages would a jury give him ? none at all, or merely nominal, because he was not fairly dealt with. He would be obliged to pay the 100l. indeed, and that he offers to do

(a) That payment of money is not part performance of an agreement touching land, vid. ante 41, 42, Clinan v. Cooke, and cases there referred to.

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1803.

O'HERLIHY

v. HEDGES.

by his answer. But this is a contract on which no action at law could be maintained, notwithstanding what Mr. Justice Buller says in one or two cases, that part-performance takes a case out of the statute, at law as well as in equity. That opinion will be found wrong; and I recollect Mr. Justice Buller, upon being pressed with the consequences of that opinion in case of a demurrer to evidence, being obliged to abandon the position. The ground on which a court of equity goes in cases of part-performance, is that sort of fraud which is cognizable in equity only.

But suppose, instead of an action, that Riordan had filed his bill against Hedges. Riordan could not have a specific performance because he had misconducted himself, so that the bill would have been dismissed as against him. Then what is this case ? The plaintiff can stand only in the situation of Riordan, on the principle that Riordan being trustee can gain no benefit to himself, and bringing it to that, I think the decree was right.

There is a great deal to be considered with respect to contracts of this kind. Here is a contract for the occupation of land, in which contract the solvency and the character of the tenant are intimately concerned: they are not so important however as if the lease were at a rack-rent-there the solvency and character of the tenant are every thing. Now, suppose a trustee was to contract for a lease at a rackrent, and that cestui que trust filed a bill for a specific perforinance : says the defendant, 'I agreed with this man as a

good tenant-a solvent man, and skilled in the improvement ' of ground: you are poor-you are ignorant of the cultiva• tion of land; and because he happens to be your trustee, though there is no trust apparent, must I put upon my estate a tenant who will ruin it.' Can this be equity? I

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