R Henry Persse, - Appellant; Dudley Persse and Others (his second Wife, and the Children of his Two Marriages), - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 09 June 1856 |
| Date | 09 June 1856 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 1069
House of Lords
Mews' Dig. xi. 555, 632; xii. 1183, 1185. See S.C. 7 Cl. and F. 279; West, 110; and cf. 5 H.L.C. 671.
Implied Trust - Settlement - Voluntary Deed - Fraud - Pleading.
R. HENRY PERSS'Ej-AppettcMit,; DUDLEY PERSSE and Others (his second Wife, and the Children of his Two Marriages),-Respondents [May 26, 27 ; June 9, 1856]. [Mews' Dig. xi. 555, 632; xii. 1183, 1185. See S.C. 7 Cl. and F. 279 ; West, 110 ; and cf. 5 H.L.C. 671.] Implied Trust-Settlement-Voluntary Deed-Fraud-Pleadmg. R. P. being seised in tail of the estate R., executed in 1826 a settlement, by which on the marriage of his eldest son D., it was settled (subject to an annuity to himself) on D. for life, then to the first son of D. by that marriage, " and of the heirs male of such son lawfully issuing," and for want of such issue to the second, third, and fourth, etc. sons, in the same manner, and for want of such issue to the right heirs of D. In 1827, R. P. entered into an agreement with D. by which, for valuable considerations therein mentioned, he covenanted to convey to- D. (subject to a life estate in himself,) to the same uses as those of the R. estate, another estate called C., if (as he expected) he should become possessed of it through the death, without issue and intestate, of a lunatic brother. A commission was taken out against this brother, who was found to have been lunatic from 1823. In 1829, the lunatic died, and R. P. took possession of the estate C. In 1830, R. P. executed a deed, by which (subject to an annuity to himself) he conveyed the estate C. to H. his second son. D.'s wife died in 1829, and in 1833 D. married again, and covenanted to settle on this marriage the estate C. to the same uses as those declared of the estate R. in the first settlement. D., his second wife, and the children of both marriages, filed a bill against R. P. and H., to set aside the deed of 1830, as fraudulent, and to have a conveyance of the estate C. [683] executed according to the deed of 1827; and in 1840, this House on appeal made an order to. that effect. In the meantime G., a natural son of the lunatic, had raised a claim, as devisee of the estate C., under a will alleged to have been made by the lunatic before 1823. R. P. died, and G. and H. entered into an arrangement by which, in consideration of G. releasing his claims1 under the alleged will, H. agreed to convey to G. part of the estate C., of a certain value, and to assure to him the other part to supply any possible deficiency in that supposed value. D., his wife, and all his children, filed a supplemental bill against H. and G., to have a conveyance of the estate C. executed in conformity with the order of this House. Held, affirming a decree of the Court of Chancery in Ireland, that H. was in the situation of a trustee for D. of the estate C., and must execute, a conveyance 1069 V H.L.C., 684 PERSSE V. PERSSE [1856] of it, and that he was not relieved from that liability by any purchase of the alleged rights of G. If any such rights existed, he might set them up aiter-wards and by a distinct process, but he could not by the use of them embarrass the trust which he had accepted on taking the conveyance from K. P. Held also, that a supplemental bill had been properly filed in this case. Held also, that the second wife and the children of both marriages had been properly made parties to the supplemental bill. This was an appeal against a decree of the Court of Chancery in Ireland, pronounced by Lord Chancellor Blackburne, on the 12th June 1852, and made in a supplemental suit, wherein the present Respondents were the Plaintiffs, and the present Appellant, R. Henry Persse, together with two other persons (not parties to the present appeal), were the Defendants. The supplemental bill was filed to obtain the benefit of an Order of this House (7 Clark and Fin., 279), which reversed a decree of Lord Plunket, and declared the Respondents entitled to' the benefit of an indenture of the 8th December 1827, and also declared a deed, of the 9th June 1830, to be fraudulent and void, so far as it affected the indenture of the 8th December 1827. [684] The following brief sketch of the earlier circumstances: will be sufficient to explain the nature of the present appeal. The father of both the Appellant and Respondent was Robert Persse, who* was seised in tail of an estate called the Roxborough estate, described as of the value of 4500 a year. The Respondent, Dudley Persse, was his eldest son. In November 1826, a settlement of this estate took place, on occasion of the marriage of Dudley Persse with Miss Katherine O'Grady, (daughter of Lord Chief Baron O'Grady,) when, subject to ari annuity in favour of Robert Persse, it was settled to the use of Dudley Persse for life; and from and after his death, " to the use of the first son of the said Dudley Persse, on the body of the said Katherine O'Grady to be begotten, and of the heirs male of such son lawfully issuing," and so on as to the other children of the marriage; " and for want oi such issue to the right heirs of the said Dudley Persse for ever " (see post, 695 ..). In December 1827, Robert Persse and the Respondent executed a deed by which reciting that an estate called the Castleboy estate was then in the possession of a- brother of Robert Persse, named Parsons Persse; that if this Parsons Persse should die intestate, and without lawful issue, the said estate would descend to Robert Persse; that Parsons Persse was in an unsound state of mind, and that it would be necessary for the protection of the property to sue out a, commission of lunacy against him; and that at the desire of Robert Persse, the Respondent had undertaken to sue out the commission, and to conduct it at his sole expense, it was witnessed that, in consideration of the matters so recited, Robert Persse agreed that he, after the death of Parsons Persse, would convey to [686] the Respondent all the Castleboy estate to the same uses as those previously settled for the Roxborough estate. This deed was immediately registered. The Respondent did sue out and prosecute a, commission of lunacy against Parsons Persse, who was found to have been of unsound mind (with lucid intervals) from November 1826. Parsons Persse died in 1829 (as it was then believed) intestate, and Robert Persse entered into possession of the Castleboy estate. In June 1830 Robert Persse (who had not executed any conveyance of the Castleboy estate, in pursuance of his covenant of December 1827) became a party to a deed to which his second son, R. Henry Persse, was the other party, by which, as therein stated, for valuable consideration paid to him by R. Henry Persse, (the Appellant,) the uses of the Castleboy estate were, by Henry Persse, settled to himself for life, and after his decease to the Appellant, his heirs and assigns for ever. Mrs. Katherine (O'Grady) Persse having died in 1829, the Respondent, in 1833, contracted marriage with Miss Frances Barry, and in July of that year executed a settlement, by which (among other things) the deed of 8th December 1827 was recited, and it was covenanted that as soon as the Respondent became possessed of the Castleboy estate, it should be settled to the same uses as the Roxborough estate, it being assumed at that time that the settlement of 1826 had reserved to the Respondent Dudley a reversionary interest in the settled estate of Roxborough. In 1833 Dudley Persse, his second wife, and the children of both marriages, filed their bill in the Court of Chancery in Ireland against Robert Persse, and against 1070 PERSSE V. PERSSE [1856] V H.L.C., 686 K. Henry Persse, (the present Appellant,) to have the deed of June 1830 set aside as fraudulent, and to have a conveyance of the Castleboy estate executed in pursuance of the [686] covenants in the deed of December 1827. The Defendants put in their answers, and in February 1837 the cause was heard before Lord Chancellor Plunket, who dismissed the bill. On the 7th May 1840 his Lordship's decree was reversed by this House, the deed of June 1830 was declared void, and the deed of December 1827 ordered to be carried into execution,and the cause was remitted to the Court of Chancery, to give effect to the Order of this House. The Court thereupon referred it to the Master, to settle a proper conveyance, but the Respondents never laid before him a draft for that purpose. On the 28th May 1840, by a deed made between Robert Persse of the one part, and the Appellant of the other part, for the considerations therein mentioned, and subject to annuity of 400 to Robert Persse for his life, Robert Persse conveyed to the Appellant the Castleboy estate. On the 6th August 1840, a deed was executed by George Persse (a, natural son of Parsons Persse, the alleged lunatic) of the one part, and Edward Doyle of the other part, by which, reciting that Parsons Persse in his lifetime, had been seised in fee of the Castleboy estate, and by will dated in March 1820, had devised the said estate to the said George Persse and the heirs of his body, and that the testator had died on the 25th October 1829, without having revoked his will, and that George Persse had complied with " the Act for the abolition of fines and recoveries," it was witnessed that George Persse, for the considerations tlierein mentioned, conveyed the Castleboy estates to Doyle, etc., to the use of himself, George Persse, his. heirs and assigns for ever. On the 2d January 1841, by two indentures between the Appellant of the one part, and George Persse of the other part, after repeating the recitals of the previous disentailing deed, and further reciting that Robert Persse, the [687] heir-at-law of Parsons Persse, had entered into possession of the Castleboy estate as such heir-at-law ; that George Persse had brought an...
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