Broun v Kennedy
| Jurisdiction | England & Wales |
| Judgment Date | 29 January 1864 |
| Date | 29 January 1864 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 901
BEFORE THE LORDS JUSTICES.
S. C. 33 Beav. 133; 33 L. J. Ch. 71, 342; 9 L. T. 302, 736; 9 Jur. (N. S.), 1163; 10 Jur. (N. S.), 141; 12 W. R. 224, 360.
[217] broun v. kennedy. Before the Lords Justices. Jan. 26, 27, 29, 1864. [S. C. 33 Beav. 133 ò 33 L. J. Ch. 71, 342; 9 L. T. 302, 736; 9 Jur. (N. S.), 1163; 10 Jur. (N. S.), 141 ; 12 W. R. 224, 360.] Where a client, two months after protracted and complicated litigation with reference to the ownership of an estate of considerable value had been brought to a successful issue under the guidance of a barrister, executed in favour of the latter a grant of the reversion in the estate expectant on the client's own death, charged with the client's debts and legacies to a specified amount: Held, that the deed must be set aside, whether as a deed of a gift, or as a contract, the evidence shewing undue influence over, and want of independent advice on the part of, the client. Quaere, whether the deed would not be bad on the grounds of champerty and maintenance. Per the Lord Justice Knight Bruce. This was an appeal by the Defendant Charles Rann Kennedy from a decree of the Master of the Rolls, whereby His Honour ordered the deed of the 10th of May 1859, hereinafter stated, to be delivered up to be cancelled, with consequential directions, and further ordered the Appellant to pay the costs of the suit. The case in the Court Below is reported in the 33d Volume of Mr. Beavan's Reports (page 133), and from that report the facts of the case very fully appear. For the purposes of this present report they sufficiently [218] appear from the judgment of the Lords Justices. The bill sought, in addition to an injunction, as ancillary to the relief prayed in respect of the impugned deed, an injunction to restrain the Appellant from publishing or disclosing any facts or circumstances which had come to his knowledge as the counsel or confidential adviser of the female Respondent, and also from printing or publishing any of her letters to him. The appeal was argued for the Respondents by Mr. Cole and Mr. Kay. The Appellant argued his own case. Huguenin v, Baseley (14 Ves. 273); Wood v. Downes (18 Ves. 120), and Holman v. Loynes (4 De G. M. & G. 270), were referred to. 902 BROUN V. KENNEDY 4DE O. J. * S. 21ff. Jan. 29. the lord justice knight bkuce. In this case the Defendant, a barrister, acted during some part of the year 1856, and during the years 1857 and 1858, and at least during the first four or five months of the year 1859, professionally on behalf of a widow named Mrs. Swinfen, and as her confidential adviser. The relation between them was mainly, if not altogether, concerned with a claim, a strongly-opposed claim, of some importance, which, as the devisee or alleged devisee of her father-in-law, Mr. Swinfen, a gentleman formerly of Staffordshire, she made to his real estate, a property it seems of considerable value. The Defendant appears to have been an able and effectual adviser and advocate to the lady in this contest, which, after enduring some years in various shapes and with various success, was [219] brought to a termination in her favour very shortly before the month of May 1859.(1) In the early part of that month the lady and Mr. Kennedy executed at Birmingham a deed dated the 10th of May 1859, the contents of which were these :- "This indenture, made the 10th day of May 1859, between Patience Swinfen, of Swinfen Hall, in the county of Stafford, widow, of the one part, and Charles Rann Kennedy, of the Inner Temple, London, barrister, of the other part. Whereas the said Patience Swinfen, has for a long time past been engaged in legal proceedings in and about the defending and establishing her title to the estate hereinafter mentioned, and the said legal proceedings have been brought to a final conclusion, and her title to the said estates is now fully established ; and whereas the said Charles Rann Kennedy has been engaged as her counsel in the said legal proceedings, and she the said Patience Swinfen desires to recompense [220] him for his services as such counsel, and to convey to him the reversion of the said estate subject to her own life interest therein and chargeable as hereinafter appears : Now this indenture witnesseth that in consideration of the services rendered to her as aforesaid by the said Charles Rann Kennedy, and also in consideration of her esteem and friendship for the said Charles Rann Kennedy, she, the said Patience Swinfen, doth hereby of her own free will give, grant and convey unto the said Charles Rann Kennedy and his heirs all that her estate at Swiufen, near Lichfield, iu the said county of Stafford, comprising a mansion-house and grounds, and several farms near or adjoining thereto, all which said estate was devised to her the said Patience Swinfen by Samuel Swinfen, of Swinfen Hall aforesaid, and all the lands, hereditaments, rights, liberties, easements, privileges, rents and profits whatsoever to the said estate belonging or in anywise appertaining, or with the same now or at any time heretofore demised, held, occupied or enjoyed, or reputed, deemed, taken or known as purt or parcel thereof, with their appurtenances ; and all the estate, right, title, interest, property, claim and demand both at law and in equity of her the said Patience Swinfen in, to or upon the said premises and every part thereof; to have and to hold the said estate, mansion-house, grounds, farms^ lands, hereditaments, and all and singular other the premises hereby given, granted and conveyed or expressed and intended so to be, unto the said Charles Rann Kennedy and his heirs, to the use of the said Patience Swinfen for the term of her natural life; and from and after the decease of the said Patience Swinfen to the use of the said Charles Eann Kennedy, his heirs and assigns, subject to and chargeable with all such debts as shall be due and owing from the said Patience Swinfen at the time of her decease, not exceeding in the [221] whole the sum of £10,000, and also subject to be chargeable with the payment of such sum or sums of money not exceeding in the whole the sum of £10,000, to such person or persons respectively as the said Patience Swinfen shall by her last will direct and appoint. " In witness whereof the said parties hereunto have set their hands and seals the day and year first above written. "Signed, sealed and delivered by the above named Swinfen Patience and Charles Rann pateence swinfen. (l.s.) charles rann kennedy. (l.s.) Kennedy, in the presence of " edward H. collis, Aw, Birmingham. "JAMES ure, AttJ', Birmingham." 4 DE G. J. & S. 2J2. BROUN V. KENNEDY 903 This deed, I need scarcely say, had reference to the various and extensive litigation to which at the outset of my observations I alluded-a litigation in which and with reference to which she had by the advice and professional ability and exertions of the Defendant been so much assisted. The only question now before us, besides the costs of the suit, is the question whether this Court ought to allow the deed to stand or ought to set it aside with the consequential directions. The contents of the deed are possibly alone sufficient to condemn it, at least on the assumption that the statements, the recitals, contained in it, are true. But of their truth in fact being believed, the Defendant, who himself drew the instrument, cannot certainly complain. It is, however, not perhaps impossible to suppose the existence of circumstances in point of fact sufficient to support the deed in the Defendant's favour. Are there, [222] however, any such circumstances in evidence before the Court? In my opinion not. The deed was either a mere gift or was executed in pursuance of a contract. As a gift, of course it could not be sustained between a client, whether man or woman, and the counsel of that client who had been so recently engaged for the client professionally in legal matters, such as those which have been mentioned, namely, in recovering for the client the real estate itself, of which so valuable a portion formed the very subject of the gift. Whether, however, the deed was executed in pursuance of a contract or otherwise, the draft of it was drawn by the Defendant himself, nor was any other professional person concerned or consulted on the subject or with reference to it on behalf of the lady before she executed it, except that Messrs. Collis & Ure, solicitors, of Birmingham, in whose office or under whose direction the deed was engrossed on the 9th or 10th of May lcS59, at Birmingham, saw her and spoke to her upon the subject upon the 10th before her execution of it on that day there, which execution they attested. And I am of opinion that, apart from all considerations of public policy, she had and has a right to complain seriously and effectually that she laboured under a want of sufficient advice, information and assistance on the subject before and when she executed the deed, which in my judgment was and is an instrument of great and substantial and manifest impropriety-one from which the lady who executed it has, however clever she may be and probably is, a plain right to be delivered, and against which relief coulcl not be refused to her without discredit to the administration of justice. [223] There being nothing else in question (for the Defendant has conceded that the injunction granted must stand), of course the appeal of Mr. Kennedy must be dismissed with costs; for though there are some inaccuracies in the bill they are such and in such a case as to be of no moment. the lord justice turner. I think it unnecessary to say more than a few words upon this case. The decree appealed from is in such entire conformity with the principles and decisions of the Court that its validity cannot, in my opinion, be doubted. Although I thought it due to the Defendant to suspend the judgment for the purpose of more carefully considering the case...
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