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The whole case of the plaintiff rests upon part-perform- 1803. ance; for without it, his case comes within the statute of OH
O'HERLIHY frauds. Now what is the part-performance relied on ? is it
HEDGES. payment of the sum of 1001. ? 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).
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 acknow-ledge 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.
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
think not. If indeed such a lease had been actually execut- 1803. ed, and without containing a provision that the tenant should
O'HERLIHY not assign without license, in such case the landlord must
the HEDGES, suffer for his folly. The difference in the character of the tenant may make a great difference with respect to the lands, and may be an injury to the landlord to an incalculable extent: and therefore it would be dangerous to establish merely on the principle that a trustee shall gain no benefit for himself, that a party not knowing of the trust shall be obliged to execute an agreement made with the trustee. Suppose a farmer in possession of a farm at a rack-rent, holding under an assignment of a lease, and being the apparent owner: he cultivates the land well and gives satisfaction to his landlord, who for his encouragement proposes to give him a further term, and he enters into a contract to that effect; and then the person who assigned the lease starts up and insists that the farmer was his trustee, and, though the landlord knew nothing of such trust, that he must execute a lease to him and not to the tenant. Surely the landlord has a right to say, “ I never would have entered into such a “ contract with you.” This in principle comes up to the present case.
I think it would be infinitely too much to found such a decree as is sought, upon a principle made for a quite different purpose, and therefore I think the former decree ought to be affirmed, but without costs, as there was some doubt in the case.
HUGHES v. KEARNEY. March 9. Purchase mo- By indentures of lease and release, bearing date the 18th ney unpaid is, prima facie, a' and 19th days of Alarch 1741, Thomas Hughes conveyed lien on the lands sold ; and
the lands of Moortown in fee to John Kearney, the father of if a security is defendant, in consideration of the sum of 2,050l. ; and a. taken for that money, it lies receipt for that sum was executed on the back of the conveyon the vendee ances : but the sum of 1,245l. remaining unpaid at the time. to shew that the vendor of executing the deeds, Kearney executed a promissory note agreed to rest
for that sum to William Knox as a trustee for Hughes ; and ty, and to dis- there being debts of Hughes affecting the lands, the amount charge the lands. A note of which was not ascertained, it was agreed that the note passed by ven- should remain in the hands of the trustee until they should dee to a trustee for part of the be ascertained. In July 1742, Kearney paid 6001. to the purchase mo. metin port dischare
trustee in part discharge of the note, and in August 1743, amount of he paid off a judgment debt affecting the lands, of 3401. which incum
1s. 7d. Several other small payments were made, the last of not ascertained which was on the 7th of April 1746, at which time there were to be sat. isfied, and the was a balance due of 321l, on account of the note. In
only December 1749, Kearney filed a bill against Hughes and paid to the vendor, is not Knox, praying an account of judgments and incumbrances such a security
muy affecting the lands, and that they should account with him ; charge the lien and that the note should be brought in and given up to on the lands.
Kearney, he paying what was due thereon, (if any thing). That suit was protracted from various causes till June 1767, when there was a decree to account, but nothing further was done in the cause,
Thomas Hughes died in May 1769, and in February 1770 the present bill was filed by his younger children, the principal object of which was to make the purchased lands lia
ble to a sum of 1,000l. part of the marriage portion of the 1803. mother of the plaintiffs; and for this purpose it charged H that by the marriage settlement of the mother, (in which
KEARNEY. Kearney was a trustee) Hughes had been empowered to layout this part of her fortune in lands ; that he did purchase. the lands of Moortown with this money, of which Kearney had notice, who therefore, as it insisted, took the lands cum onere. Notice was however denied by Kearney, and the plaintiffs had failed in proving this part of their case : but the transaction of the promissory note, as above mentioned, appeared upon the pleadings, though the bill did not pray any specific relief on that ground. Kearney the purchaser answered in 1771, and died soon after, and the suit was revived against his heir at law, the present defendant, who answered in 1772, and in 1789 the suit was again revived.
· On the hearing, Lord CLARE directed an account of the principal and interest due on the foot of the purchase money, and an account of the personal estate of Kearney the purchaser, and it being reported in November 1801, that there was then due for principal and interest the sum of 1,409). 11s. 7d. and that Kearney had left no personal estate, and the cause being set down to be heard on report and merits, his lordship on the 21st of December, 1801, decreed the said sum with interest from the date of the report, to be a charge upon and to be raised out of the lands of Moortown.
The cause coming on now to be re-heard.
Mr. William Johnson, for the defendant, stated two objections to the decree : First, That interest was given on the sum of 321l. reported due in April 1746; and secondly, That that debt was made a lien on the lands: but the order for