Servington Savery, - Appellant; Richard King and John King, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 09 May 1856 |
| Date | 09 May 1856 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 1046
House of Lords
Mews' Dig. i. 366; iii. 2026; vii. 205, 211, 242, 427; xi. 1740. S.C. 25 L.J.Ch, 482; 2 Jur. N.S. 503; 4 W.R. 471. As to (i.) relation between parent and child, see Davies v. Davies, 1863, 4 Giff. 417; Bainbrigge v. Brown, 1881, 18 Ch.D. 188; Hoblyn v. Hoblyn, 1889, 41 Ch.D. 200; (ii.) relation between solicitor and client, see Pisani v. A.-G. for Gibraltar, 1874, L.R. 5 P.C. 536; Liles v. Terry (1895), 2 Q.B. 679; Powell v. Powell (1900), 1 Ch. 243; (iii.) acquiescence and delay, see Turner v. Collins, 1871, L.R. 7 Ch. 334 n.; Allcard v. Skinner, 1887, 36 Ch.D. 164. On the whole subject, see notes to Huguenin v. Baseley in 1 Wh. and T.L.C. 7th ed. 247.
Solicitor and Client - Purchase by Solicitor of Reversion - Costs of Appeal - Practice - Delay.
[627] SERVINGTON SAVERT,-Appellant; RICHARD KING and JOHN KING,- Respondents [February 14, 15, 18, 19, 21, 22; May 9, 1856]. [Mews' Dig. i. 366; iii. 2026; vii. 205, 211, 242, 427; xi. 1740. S.C. 25 L.J.Ch, 482 ; 2 Jur. N.S. 503 ; 4 W.R. 471. As to (i.) relation between parent and child, see Davie-s v. Davies, 1863, 4 Giff. 417; Bainbrigge v. Brown, 1881, 18 Ch.D. 188; Hoblyn v. Hoblyn, 1889, 41 Ch.D. 200; (ii.) relation between solicitor and client, see Pisani v. A.-G. for Gibraltar, 1874, L.R. 5 P.C. 536; Liles v. Terry (1895), 2 Q.B. 679; Powell v. Powell (1900), 1 Ch. 243; (iii.) acquiescence and delay, see Turner v. Collins, 1871, L.R. 7 Ch. 334 n.; Allcard v. Skinner, 1887, 36 Ch.D. 164. On the whole subject, see notes to Huguenin v. Baseley in 1 Wh. and T.L.C. 7th ed. 247.] Solicitor and Client-Purchase by Solicitor of Reversion-Costs of Appeal- Practice-Delay. Where A. and B. join in a transaction effected with them by C., which is invalid as to B., he is not precluded from afterwards objecting to it merely because it is binding on A. When a son, recently after attaining his majority, makes over property to his father without consideration, or for an inadequate consideration, Equity will 1046 SAVERY V. KING [1856] V H.L.C., 628 require the father to be able to show that the son was really a free agent, and had adequate and independent advice. When a solicitor purchases or obtains a benefit from a client, he must show that he has taken no advantage of his professional position, but has done as much to protect the client's interest as he would have done in the case of the client dealing with a stranger. There can be no ratification of an invalid transaction where the person performing the supposed act of ratification has been kept by the con-duct of the party in whose favour it is made, unaware of the invalidity of the first transaction, and has not, at the time of the supposed ratification, the means of forming an independent judgment. J. had a life estate in certain land in Devonshire, with remainder to his sons in tail male; R. was his eldest son, S. was J.'s solicitor, to whom J. was indebted in a sum of above 9000. On this sum J. was paying 5 per cent, interest, and the debt was (within 950), secured by 11 policies of assurance on J.'s life, the premiums of which, as well as the principal money, were charged on his life estate. In March 1835, it was arranged between J. and S., an arrangement to which R. (who had then only just come of age, and who was living in his father's house), assented, that a disentailing deed should be executed, and that J. and R. should then execute a mortgage to S. for 10,000, with a power of sale, the difference in the amounts being made up by a further advance, the interest being reduced to 4 per cent., and the policies of assurance assigned to R. for his use; all this was done. In this transaction, R. had no other professional advice than that of S., who was his father's solicitor, and was also the mortgagee. Held, that as to R., this mortgage was invalid. J. afterwards borrowed more money from S., repayment of which was secured by charges on the Devonshire estate, executed by both J. and R., and with some of this money, property was bought in Hampshire, which was conveyed to R. The incum-[628]-brances on the Devonshire estate being thus largely increased, it was afterwards put up to sale (in order to discharge all incum-brances), but was bought in, and was ultimately purchased by S. for a sum of 23,800, of which 3000 were paid to R. for his use, and a small balance paid to J. In these various transactions, R. had no professional advice but that of S: Held, that this sale was invalid as far as R. was concerned, and accounts were directed. The Bill to set aside these transactions was not filed till 1847 : Held, that under the circumstances of this case, the delay was no answer to R.'s title to' relief. The decree of the Court below was varied, but only as to a small extent, not the material subject of the appeal: Held, therefore, that the Appellant must pay the costs of the appeal. The Appellant was, up to 1853, an attorney and solicitor, carrying on business at Modbury, in Devonshire, and was for many years the attorney and solicitor of the Respondent, John King. That Respondent was, under a will made in 1809, Ihe tenant for life of an estate called Fowelscombe, in the parish of Modbury, and having entered into possession in 1811, he resided there till 1835, when he removed to Cor-hampton, in Hampshire, where he kept a subscription pack of hounds, from which he derived an income of about 1000 a year. The estate of Fowelscombe was devised to trustees for the use of John King for life, with remainder to the first and every other son of the said John King successively in tail male. The Respondent, Richard King, was the eldest son of John King, and attained 21 on the 7th May 1835, and was then unmarried. There were, besides, a son and daughter. Richard lived entirely with his father. Previously to March 1835, John King had become indebted to the Appellant in various sums, amounting together to about 9667 16s. 8d., secured by mortgage of his life estate in Fowelscombe, and also by polices of assur-[629]-ance on his life, amounting in the whole to 8700, the premiums on which, amounting to 309 1047 VH.L.C., 630 SAVERY V. KING [1856] 18s. 7d. per annum were payable by John King. The rents of these estates amounted to about 900, and were more than sufficient to satisfy the interest on such mortgages and premiums of insurance, which in the whole amounted to1 about 790. On the 21st February 1835, the Appellant went on a visit to John King, at Corhampton, where he remained until the 9th March. The interests of the Respondents in the devised estates and the Appellant's mortgage thereon, were often the subjects of after-dinner conversation between the Appellant and one or both of the Respondents. It was arrangd that the entail should be barred, and that the Appellant (whose securities bore interest at five per cent.) should procure 10,000 at four per cent., to enable John King to pay him off. This sum was to be advanced upon a mortgage of the fee of the devised estates. On the 14th March 1835, the Appellant sent the following letter to John King: " I have this day looked into your late uncle's will, and I find the Fowelscombe property is settled to you for life, and to your sons in tail male; and in case of your having no male heir, or such dying under age or in your lifetime, without a recovery being suffered, the property goes off to another family. I should, therefore, advise that you and Richard should, without any loss of time (if he be of age), join ini suffering a recovery, which would enable him at once (subject to your life-interest) to give the property by will to his brother or sister, or to do, in fact, what he pleased with it. This you understand will effectually prevent the property going away from his sister, in case his brother John and himself should die unmarried and without issue. In case of Richard's death in your lifetime, without a reco-[630]-very, and John's dying under age, the sister could not possess the property; and I think it, therefore, most desirable the recovery should be suffered immediately. The uses of this recovery may be as you and Richard think proper (that is to say), either settled to you for your life (as is now the case), with remainder in fee-simple to Richard after your death, thereby barring all risk of the property going away from the family; and in this case the insurance on your life must be kept up by you, as now done, to secure the sum due from you at your death, or the uses may be declared to secure the same on the property, and subject thereto in fee to Richard; and in this^way you may keep up the insurance, so as to secure the whole sum again at your death to Richard, and thereby save in interest about 100 per annum. This will be the least expensive mode of proceeding, and be more desirable to all parties. As to the sale of the estate, you are aware that it is a most desirable property; and although the money would give a larger income, I confess were I you and Richard, I should be more inclined to keep it; and if you come to the above arrangement, I see no reason why you should not do so. However, the recovery being suffered, you and Richard can then do as you may both think best; but as this is of consequence to your family, I do advise most strenuously that no time be lost to secure the property. Life is very uncertain; and the death of the two boys in your lifetime, without a recovery, would leave Mrs. and Miss King deprived of that estate which is now in your and his power to avert. I write this with a view only to the benefit of your family, and I hope you will both give it your best consideration." On the same day the Appellant informed Mr. Shortland, his conveyancer, of his intention to send instructions for the disentailing deeds on an early day in the next week. On [631] the 18th March 1835, the Appellant sent to Mr. Shortland a letter, from which the...
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