Davies v Otty
| Jurisdiction | England & Wales |
| Judgment Date | 15 February 1865 |
| Date | 15 February 1865 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 366
BEFORE THE LORDS JUSTICES.
S. C. 33 Beav. 540; 10 L. T. 284, 632; 4 N. R. 256; 10 Jur. (N. S.), 506; 12 W. R. 682, 896; 35 Beav. 208; 34 L. J. Ch. 252; 5 N. R, 391; 12 L. T. 789; 13 W. R. 484.
[238] davies v. otty. Before the Lords Justices. Jwne 3, 1864. [S. C. 33 Beav. 540; 10 L. T. 284, 632; 4 N. R. 256; 10 Jur. (N. S.), 506; 12 W. R. 682, 896; 35 Beav. 208 ; 34 L. J. Ch. 252 ; 5 N. R, 391; 12 L. T. 789; 13 W. R. 484.] The Plaintiff by deed reciting a contract for sale by him of certain lands and shares to the Defendant, conveyed the land to the Defendant in consideration of £20 therein expressed to be paid and of a covenant by the Defendant to indemnify the Plaintiff against all liability in respect of the shares. The Plaintiff afterwards filed his bill, alleging that the deed was executed merely for the purpose of enabling the Defendant to manage the property for the Plaintiff during his absence from the neighbourhood, and was not intended to give the Defendant any 2DEG.J.4i8.m DA VIES V. OTTY 367 beneficial interest; that the £20 had never been paid, and that the Plaintiff had subsequently paid calls in respect of the shares, and praying for a reconveyance, or if the Court should be of opinion that the Defendant was entitled to the property as purchaser according to the terms of the deed, then that the Plaintiff might be declared entitled to a lien for the £20 and the amount of calls paid, and might have relief on that footing. Held, by the Lord Justice Knight Bruce, the Lord Justice Turner doubting, that the bill was not demurrable, on the ground that it set up two inconsistent cases. This was an appeal by the Defendant from an order of the Master of the Eolls overruling a demurrer. The substance of the allegations of the bill was as follows:- That in January 1860 the Plaintiff was entitled to three shares and a half in the Birkenhead and Tranmere Building Society, in respect of which he had received, according to the rules of the society, £420, and to a piece of ground and houses, which he had mortgaged to the society to secure the £420 and his subscriptions and fines. That in January 1860 the Plaintiff expected to leave Tranmere and reside elsewhere, and requested the Defendant to manage his property and affairs for him during hia absence, which the Defendant agreed to do. That in pursuance of and for the purpose of facilitating this arrangement a deed, dated the 17th of January 1860, was executed, which recited that the Plaintiff had made all the payments which had become due in respect of his shares in the building society, and that the Defendant had taken from the Plaintiff all his shares therein and had contracted for the purchase of the land and houses, [239] and thereby the Plaintiff, in consideration of the sum of £20 therein expressed to be paid to him by the Defendant and of the covenant on the part of the Defendant thereinafter contained, conveyed the ground and houses to the Defendant in fee, subject to the repayment of the sums due to the building society; and the Defendant covenanted with the Plaintiff to pay all sums payable to the society and observe the rules and regulations as to the shares, and indemnify the Plaintiff against such payments and all claims and demands in respect thereof. That the Plaintiff never gave up possession of the ground and houses, and no transier of the shares was ever made to the Defendant. Shortly after the execution of the deed, the Plaintiff gave up his intention of removing from Tranmere, and applied to the Defendant to reconvey the premises, which the Defendant refused to do. Par. 6. " To justify his refusal the Defendant alleges that the said deed of the 17th day of January 1860 was in fact as well as in form an absolute conveyance by the Plaintiff to the Defendant by way of sale of the Plaintiff's estate and interest in the said piece or parcel of land and houses, and that the said shares in the said building society were agreed to be transferred at the same time and for the same consideration, and that such consideration was the payment of the said sum of £20 and the covenant on the part of the Defendant contained in the said deed." Par. 7. "Such allegation is entirely unfounded. No money was paid by the Defendant to the Plaintiff' and no consideration passed between them. Whatever was the form of the said deed, the same was, as between the Plaintiff and Defendant, intended to give the Defendant [240] the full power and disposition over the said land and houses and not to vest any beneficial property or interest in him the said Defendant, and the recital inserted in the said deed, that the Defendant had taken the said shares in the said society, was intended to have the same and no other effect. The said deed was expressed to be in the form of a conveyance merely for the purpose of preventing any question arising as to the Defendant's power of disposal over and management of the property therein comprised." Par. 8. " The sum of £20, in the said deed expressed to be the consideration for such alleged conveyance, would have been quite inadequate, the Plaintiff having already paid to the building society upwards of £125 on account of the said land and houses, and having expended other moneys of his own in the purchase and building thereof." Par. 9. " At the date of the execution of the said deed and of the said transfer 368 DAVIE8 V, OTTY 2DEG. J. ft 8. ML there remained due from the Plaintiff to the said building society on account of the said advance of £420 and interest and of subscriptions and other payments a sum of £300 or thereabouts. The Plaintiff has, since the execution of the said deed, paid £129, 9s. 9d. to the said building society by the instalments and in manner prescribed by their articles. The Defendant has never paid any sum or sums of money to the said building society on account of the said liability." That the Defendant had recently given notice to the trustees of the building society of his intention to pay off all moneys due to them, and had required an account of the moneys remaining due, and a...
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