Dudley Persse Esquire and Frances Persse otherwise Barry his Wife, Dudley Persse the younger, Katherine Henrietta Persse, Maria Persse, Richard Dudley Persse, and Elizabeth Persse, Infants, by the said Dudley Persse, their Father and next Friend, - Appellants; Robert Persse, Robert Henry Persse, the Honourable John Prendergast Vereker, James Lambert, Sir John Burke, Anthony Richard Blake, John Martyn, and the Earl of Rosse, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 07 May 1840 |
| Date | 07 May 1840 |
| Court | High Court of Chancery |
English Reports Citation: 9 E.R. 439
FROM THE COURT OF CHANCERY, IRELAND.
Mews' Dig. iii. 212, 2025; vi. 802; xii. 833; xiv. 357. S.C. 7 Cl. and F. 279; 4 Jur. 358; and see 5 H.L.C. 671; 2 Jur. (N.S.), 551; 4 W.R. 629. As to consideration (7 Cl. and F. 316, 317), see Scott v. Scott, 1854, 4 H.L.C. 1076; Williams v. Williams, 1865, L.R. 2 Ch. 294. As to family arrangements, see notes to Stapilton v. Stapilton, 1 Wh. and T.L.C. 223; and Hoghton v. Hoghton, 1852, 15 Beav. 300.
[110] FROM THE COURT OF CHANCERY, IRELAND. DUDLEY PERSSE Esquire and FRANCES PERSSE otherwise BARRY his Wife, DUDLEY PERSSE the younger, KATHERINE HENRIETTA PERSSE, MARIA PERSSE, RICHARD DUDLEY PERSSE, and ELIZABETH PERSSE, Infants, by the said DUDLEY PERSSE, their Father and next Friend,- Appellants; ROBERT PERSSE, ROBERT HENRY PERSSE, the Honourable JOHN PRENDERGAST VEREKER, JAMES LAMBERT, Sir JOHN BURKE, ANTHONY RICHARD BLAKE, JOHN MARTYN, and the Earl of ROSSE-Respondents [13th, 17th, 18th, and 20th February, and 7th May, 1840]. [Mews' Dig. iii. 212, 2025 ; vi. 802; xii. 833 ; xiv. 357. S.C. 7 Cl. and F. 279; 4 Jur. 358; and see 5 H.L.C. 671; 2 Jur. (N.S.), 551; 4 W.R. 629. As to consideration (7 Cl. and F. 316, 317), see Scott v. Scott, 1854, 4 H.L.C. 1076; Williams v. Williams, 1865, L.R. 2 Ch. 294. As to family arrangements, see notes to Stapilton v. Stapilton, 1 Wh. and T.L.C. 223; and Hoghton v. Hoghton, 1852, 15 Beav. 300.] It is not competent for a, defendant, failing in the defence made, by his answer to set up another defence dependent upon matters of fact not put in issue by his answer, and which the plaintiff has no opportunity of disproving or explaining. 439 WEST, 111 PERSSE V. PERSSE [1840] Robert Persse being heir presumptive to R. P. Persse, who was then supposed to be a lunatic, and being under an apprehension that unfair means might be resorted to, in the then state of mind of R. P. Persse, to deprive the family of the succession to the estate, agrees with his eldest son, Dudley Persse, that D. Persse should sue out a commission of lunacy against R. P. Persse, and carry on such other suits and law proceedings as should be [111] necessary, in the name of Robert Persse, at the expense of Dudley Persse; in consideration of which agreement, and natural love and affection, R. Persse covenants that after the death of R. P. Persse the estates which should thereupon descend to him should be conveyed to himself for life, remainder to his son for life, with remainder to his first and other sons in tail male. The son, at his own expense, and in the name of his father, sued out the commission under which R. P. Persse is found a lunatic, who soon afterwards dies; whereupon the father succeeds as heir to the lunatic's estates. Upon a bill filed by the son to carry into effect this agreement, specific performance decreed, and held that the agreement was not voluntary, void for champerty or maintenance, or illegal, either for want of mutuality, or as being a fraud upon the great seal in lunacy; and considering the ages and situations of the parties, the father being sixty-two and the lunatic forty, and the objects to- be gained by the prosecution of the commission of lunacy, that the consideration for the deed was not inadequate; but that deeds for carrying into effect family arrangements are exempt from the rules which affect other deeds, the consideration being composed partly of value and partly of love and affection. The respondent, Robert Persse, being tenant for life of the Roxburgh estate, situate in the county of Galway, with remainder to his eldest son, the appellant Dudley Persse, in tail, by settlement of the 1st May 1823, conveyed the same to Dudley Persse in fee, subject to an annuity of £800 payable for his own life, the payment of his debts amounting to £17,000, and to a charge of £6000 for portions for his younger children. The yearly value of the Roxburgh estate was about £4500, and the consideration for the deed was fixed by the stamp office at the sum of £29,250. [112] By settlement dated the llth of November 1826, and made in contemplation of a marriage, which was afterwards had, between Dudley Persse and Katherine O'Grady, the daughter of the Chief Baron of the Court of Exchequer in Ireland, Dudley Persse, being seised in fee of the Roxburgh estate under recoveries suffered in pursuance of the deed of 1823, conveyed the same to trustees, (subject, in common with several other lands, to the annuity of £800,) to Dudley Persse for life, with remainder to trustees to preserve contingent remainders, and after providing an annuity by way of jointure for Katherine O'Grady, and £10,000 for the portions of younger children, to the first and other sons of the said Dudley Persse in tail male. In 1827 the respondent Robert Persse, being then of the age of sixty-five, was heir presumptive to Robert Parsons Persse, then of the age of forty; and in the event of Robert Parsons Persse surviving the respondent Robert Persse, the appellant Dudley Persse would have been the presumptive heir of Robert Parsons Persse. Robert Parsons Persse, who was then supposed to be a lunatic, was seised in fee of the Castle-boy estate in the county of Galway, which was of the value of about £2000 a year. Apprehensions being at that time entertained that unfair means might be resorted to, by persons taking advantage of the state of mind of Robert Parsons Persse, for the purpose of depriving the family of the succession to the Castleboy estate, and the jespondent Robert Persse having expressed a wish that the Castleboy estate, which had formerly belonged to his family, should be re-annexed to the Roxburgh estate, it was agreed between the appellant Dudley [113] Persse and the respondent Robert Persse, that a commission of lunacy should be sued out against Robert Parsons Persse, in the name of Robert Persse, at the cost and expense of Dudley Persse. Robert Persse had been a bankrupt, and had not the necessary means for prosecuting the commission. Under these circumstances a deed, of the 8th day of December 1827, was executed by Robert Persse of the one part and Dudley Persse of the other part, whereby, after reciting that Robert Persse would, after the decease of the said Robert Parsons Persse intestate and without issue, be entitled to the remainder or reversion in fee simple of the Castleboy estate, as heir-at-law to the said Robert Parsons Persse, 440 PERSSE V. PERSSE [1840] WEST, 114 and that the appellant Dudley Persse had agreed, at the request of his father, to sue out a commission of lunacy against Robert Parsons Persse, and to institute and carry on such other suits and law proceedings as should thereafter become necessary, in the name of the said Robert Persse, if necessary, and at the sole and entire expenses and charges of him the said Dudley Persse; It was by the said indenture witnessed, that in pursuance and execution of the said agreement, and for and in consideration of the natural love and affection which Robert Persse bore to his son Dudley Persse, and in further consideration of the sum of 10s. to Robert Persse paid by Dudley Persse, Robert Persse did for himself, his heirs and assigns, covenant and agree with the appellant Dudley Persse, his heirs and assigns, that from and after the decease of the said Robert Parsons Persse the Castleboy estate should be conveyed and vested in Robert Persse for life, and from and after his decease be conveyed for the same [114] uses, estates, and limitations as the Roxburgh estate stood settled ; and there was a covenant upon the part of Robert Persse for further assurance. On the 22d April 1828 Dudley Persse at his own expense caused a commission of lunacy, upon the petition of Robert Persse, to be sued out against Robert Parsons Persse, who, after an inquiry which lasted fifteen days, was found a lunatic. On the 25th of October 1829 Robert Parsons Persse died, and an ejectment being brought by a person claiming under the will of the lunatic, the jury upon the trial found a verdict against the claim set up by the will; and thereupon Robert Persse entered into the possession of the Castleboy estate, which had descended to him by the death of Robert Parsons Persse. Dudley Persse, independent of what was allowed him out of the lunatic's estate for the costs incurred in the lunacy, paid the sum of £295. In the year 1829 Katherine Persse, the wife of Dudley Persse, died, leaving the appellants, Dudley Persse the younger, Katherine Henrietta Persse, and Maria Persse, the children of the marriage between herself and Dudley Persse. By indenture of the 9th day of June 1830, executed by Robert Persse of the first part, the respondent, the Earl of Rosse, of the second part, and the respondent Robert Henry Persse, the second son of the said Robert Persse, of the third part, after reciting that Robert Persse was seised in fee simple in possession of the estate of Castleboy, and reciting that the said respondent Robert Persse did, by indenture bearing date on or about the 1st day of May 1823, fully and sufficiently provide for and advance his eldest son, the [115] appellant Dudley Persse, and that Robert Persse was desirous of settling the remainder in fee of the Castleboy estate on Robert Henry Persse, his second son, on the terms thereinafter specified, and to vest in possession on the demise of him, Robert Persse; and Robert Henry Persse agreed to purchase the same on such terms as were therein-after expressed; it was witnessed, that in pursuance of the agreement...
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