Bellamy v Sabine
| Jurisdiction | England & Wales |
| Judgment Date | 08 November 1847 |
| Date | 08 November 1847 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 1007
HIGH COURT OF CHANCERY
S. C. 5 L. J. Ch. (N. S.), 36; 17 L. J. Ch. 105; and for subsequent proceedings, 1 De G. & J. 566. In a fraudulent transaction parties must be put, as far as possible, on the basis existing before the transaction. See Ram Tuhuh Singh v. Biseswar Lall Sahoo, 1875, L. R. 2 and Ind. App. 139.
[425] bellamy v. sabine. Nov. 8, 1847. [S. C. 5 L. J. Ch. (N. S.), 36 ; 17 L. J. Ch. 105 ; and for subsequent proceedings, 1 De G. & J. 566. In a fraudulent transaction parties must be put, as far as possible, on the basis existing before the transaction. See Bam TuJiuh Singh v. Biseswar Lall Sahoo, 1875, L. R. 2 Ind. App. 139.] Seville. If a fraud has been practised on a tenant in tail, which has been carried into effect by means of a recovery, and the tenant in tail dies without issue and without confirming the transaction, the next remainder-man in tail may maintain a bill to set it aside. Secu-s. If the recovery were suffered with the intention of barring the entail, and the fraud applied only to some part of the transaction independent of that object. If an arrangement between two parties is, on general principles, fair as between them, it is not invalid merely because it may have been concocted and brought about by a third party with a fraudulent intention of benefiting himself. In such a case, so far as regards the third party, the whole may be looked upon as one transaction, in order to judge of his motives and to put a construction upon his acts_; but, as regards the other two, who, though affected by one part of the transaction, may be total strangers to the other part, it is not only not necessary, but it would be unjust, to consider erery part of the transaction affected by objections which, in fact, apply only to particular portions of it. Circumstances to be taken into consideration in judging of the fairness of an arrangement between a father, tenant for life, and son, tenant in tail, for barring the entail. Where the main consideration moving from the son was an undertaking to pay the father's debts, even the circumstance of several of the most important items being left in blank was held insufficient to set the transaction aside, as against the father, though the son was only just of age ; as a family arrangement of that description cannot be supposed to have depended upon any very exact calculation as to the amount of the debts. Where a young man, just of age, was imposed upon in the sale of an estate, Held, that his heir was not precluded from suing to set the sale aside by the circumstance 1008 BELLAMY V. SABINE a PH. 426. of the party defrauded having by will bequeathed to a third party the balance of purchase-money remaining due at his death. The principle of there being no equity as between real and personal representatives, has no reference to such a case; in which the Court proceeds upon the ground thati as the transaction ought never to have taken place, the rights of the parties are, as far as possible, to be placed in the situation in which they would have stood if there had never been any such transaction. An agreement between a father, tenant for life, and an eldest son, tenant in tail, for certain considerations, to bar the entail and convey the estate to the son, was followed within a fortnight by the sale of the estate by the son to the solicitor who had acted for both parties in the agreement. In a suit after the death of the son without issue, by the next remainder-man in tail, who was also heir at law of the son, to set aside both transactions, and to have the estates re-settled to the former uses, the Court was of opinion upon, the evidence that both transactions were but parts of one scheme, contrived by the solicitor for his own benefit; but being also of opinion that, on the principle of family arrangements, the agreement between the father and the son was not necessarily an unfair one in itself, the Court set aside the second only, and, dismissing the bill as to the first, decreed the solicitor to convey the estate to the Plaintiff in fee. On a bill subsequently filed by the father against the Plaintiff in the former suit, complaining that since he had got into possession of the estates under that decree he had refused to perform the stipulations, in the father's favour, of the first agreement, and praying specific performance thereof; the Vice-Chancellor being of opinion, at the hearing, that the Plaintiff had no equity for such relief, but that he had a jight to be restored, as far as possible, to the condition in which he stood at the time of that agreement, gave him leave to insert, by amendment, an alternative prayer for relief of that kind ; and on the amended record directed certain inquiries on that footing, conceiving that such decree was not inconsistent with that in the former suit. But, on appeal by the Plaintiff, the Lord Chancellor held the contrary, and that whether the present Plaintiff was or was not entitled originally to enforce the first agreement, the present Defendant, by taking a conveyance of the estate under the former decree, had waived any equity he might have had to resist such a claim; and his Lordship made a decree for specific performance, at the same time disapproving of the order for amending the prayer, which had not been appealed from. Observations on the importance of confining inquiries, directed by a decree, strictly to the issue raised by the case upon the pleadings. In the year 1827 John Bellamy was seised in fee of an estate at Cheddington, in the county of Dorset, and was tenant for life, with remainder to his first and other [426] sons in tail, of other estates in the same county. Edward Bellamy, his eldest son, was then living, and had just attained twenty-one, and being a young man of dissipated and extravagant habits, with no property of his own except his reversionary interest in the entailed estates, and his father having mortgaged his interest in both the estates to a large amount, and being in great pecuniary embarrassment, they entered into an agreement under seal, dated the 8th of June 1827, by which it was agreed that a recovery should be suffered of the entailed estates, and that those, as well as the estate at Cheddington, of which John Bellamy was seised in fee, should be conveyed to Edward in fee, he covenanting, in consideration thereof, to pay the debts due from his father to certain persons therein named, but of several of which the amount was left in blank; to advance a sum of £600 for the use of the family, and to pay certain annuities to his father and mother, and his brothers and sisters, which were to be secured upon the estates; and also to grant to his father a lease for sixty years, if he should so long live, of a portion of the estates for his residence, at a pepper-corn rent That agreement was entered into, and the terms of it negotiated between the parties, by the instrumentality of Sabine, who had acted as the solicitor both for the father and the son in other transactions, and to whom the [427] father was at the date of the agreement indebted, for professional services and advances of money, to the amount of upwards of £5000, a small part of which only was secured by a mortgage of his life interest in the estates. S PH. 428. BELLAMY V. SABINE 1009 On the 21st of the same month another agreement was entered into between Edward Bellamy and Sabine, by which Sabine agreed to purchase Edward's interest under the first agreement and to assume the liabilities which he had thereby undertaken ; the consideration for such purchase, as stated in the deed, being the sum of £541, 7s., therein stated to be paid down, but which was, in fact, the amount of a debt then due from Edward to Sabine, and of a further sum of £3600, to be secured or paid at the option of Sabine, at the expiration of seven years. In pursuance of the first agreement a recovery was suffered by John and Edward Bellamy in Hilary Term, 1828, and the estates were conveyed, by Edward's direction, to Sabine, pursuant to the second agreement. In the month of August following, Edward Bellamy died without issue, having by his will disposed of the balance of purchase-money due to him under the second agreement, and leaving his next brother, Francis, his heir at law, who being also the person who but for the recovery would now have been first tenant in tail in remainder of the settled estates, filed his bill against Sabine, John Bellamy, and certain mortgagees under Sabine, alleging that both the agreements were but parts of one scheme, which had been concerted between John Bellamy and Sabine for the purpose of defrauding Edward, and praying that they might both be set aside, and the estates reconveyed by Sabine to the uses to which they stood limited at the date of the first agreement. [428] How far the fraud was made out against John Bellamy and Sabine respectively, by the contents of the instruments, and the other circumstances of the transactions, as they appeared in evidence, will be seen from the judgment of the Master of the Rolls, before whom the cause was heard in the year 1835. the master of the rolls (Sir C. C. Pepys). In this case I have not had the least doubt as to the Plaintiff being entitled to a decree against the Defendant Sabine, but I have had some difficulty in coming to a conclusion as to the extent to which the decree ought to go as it affects the interests of the other parties. I will first consider the case as it affects the Defendant Sabine. It appears that the Defendant John Bellamy, the Plaintiff's father, was seised in fee of a house and some lands at Cheddington, and that he was tenant for life with remainder to his first and other sons in tail, of other property at South Perrott, Bervill, and Corscombe. John Bellamy had, prior to the year 1827, become greatly involved, and had mortgaged his life estate, and also the Cheddington estate, and he...
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