Harrison v Guest

[424] harrison v. guest. Before the Lord Chancellor Lord Cranworth. May 3, 7, 24, 31, 1855. [S. C. 25 L. J. Ch. 544; 2 Jur. N. S. 911; 4 W. R. 585; 8 H. L. C. 481: 11 E. R. 517 (with note). Explained as to employment of solicitor, Denton v. Donner, 1857, 23 Beav. 285. On point as to inadequacy of consideration, Rosher v. Williams, 1875, L. R. 20 Eq. 215; Fry v. Lane, 1888, 40 Ch. D. 322; See also Milliard v. Eiffe, 1874, L. R. 7 H. L. 52.] Where a person holding a fiduciary character purchases from his cestui qut trust, and the sale is complained of, this Court imposes the burden of proof upon the purchaser to shew that all due protection has been afforded to the vendor; aliter, where no such fiduciary relation subsists. Where, after the death of a vendor, the sale was impeached by his devisees on the ground that at the time of the sale he was an illiterate bedridden old man of seventy-one years of age, and had acted without independent professional advice, and had conveyed away the property in question of the value of JE400 for the consideration of a provision by way of board and lodging during his life, which only endured six weeks after the conveyance: Held, that in the absence of any fraud, and the evidence shewing that he had declined to employ professional advice for himself, such a transaction was not impeachable on the ground of mere inadequacy of consideration. This was an appeal by the Defendant E. B. Guest from the decree of the Vice-Chancellor Kindersley. The bill in this suit was filed by William and John Harrison, the devisees and personal representatives of John Hunt, who died in November 1853 ; and the principal object of the suit was to set aside a sale and conveyance of certain copyhold property in October 1852, by Hunt, six weeks before his death, to the Defendant Guest. The bill stated that Hunt was entitled to the property in question, subject to a mortgage of 300, and that it was of the annual value of .40 at the least; that for some years previously to his death (which happened on the 12th November 1853) Hunt was in a weak and infirm state of health, and during three years immediately preceding that event his mental faculties were very weak, and that he was perfectly incapable of taking care of himself or his affairs; and that he employed a nurse, whose sole duty it was to attend on him; and that he was a yeoman, and illiterate. The bill alleged that towards the end of the month of September 1853 the Defendant Guest, the leading man of the parish, called upon Hunt, who was then of the age of 71 years, and was very ill and bedridden, and his dissolution was evidently fast approaching, and persuaded Hunt to go and live at the house of a labourer in the [425] employ of the Defendant, and occupying one of his the Defendant's cottages, and represented to him that his comforts would be better attended to there than at the place where he was then residing, and promised to maintain and support him, and at the same time represented to him that he the Defendant would pay off the mortgage debt, and be satisfied with the security of the copyhold estate for the mortgage debt, and what he should advance for the maintenance of Hunt; that Hunt, after much persuasion, yielded to the Defendant's solicitations and agreed to his proposals : that on the 30th September 1753, Hunt, in pursuance of what passed at the interview, was removed in a cart to the Defendant's cottage, where he continued to reside till his death; that the Defendant employed his own solicitor to draw the indenture by which the property was conveyed to him, and that on the 6th of October 1853 the solicitor procured the execution thereof by the mortgagee and by Hunt. The bill then set out the indenture, which was dated the 6th October 1853, and was made between the mortgagee of the first part, Hunt of fche second part, and the Defendant of the third part, whereby, in consideration of the sum of 313, 15s. to the mortgagee paid by the Defendant, at the request of DEQ.M. &0.4S8. HARRISON V. GUEST 1299 Hunt, testified by his execution thereof, and of the further sum of 10 to Hunt, on the execution thereof, paid by the Defendant, and also in consideration of the covenants on the part of the Defendant to be observed and performed, the mortgagee, at the request and by the direction of Hunt, did grant, release, assign and assure and confirmed unto the Defendant the premises in question. And the Defendant did thereby for himself, his heirs, executors and administrators, covenant with Hunt, his executors and administrators, that he, the Defendant, his executors or administrators, should and would from thenceforth, from time to time, and at all times during [426] the continuance of the natural life of Hunt, provide him with good, sufficient, and suitable meat, drink, board and lodging, and washing and attendance ; and, moreover, that in case the Defendant should at any time thereafter neglect or refuse to provide Hunt with sufficient and suitable meat, drink, board, lodging and washing, and attendance, then and in such case the Defendant should and would pay or allow unto Hunt the sum of twelve shillings per week, in lieu of providing him with meat, drink, board, washing, lodging and attendance as aforesaid: provided always, and it was thereby declared and agreed, that nothing therein contained should extend or be construed to extend to enforce any obligation upon the Defendant, his executors or administrators, to supply Hunt with medicine or any other extra attendance in the case of sickness, or with wine or spirits; neither should the Defendant, his executors or administrators, be in anywise liable for any funeral expenses incurred in...