Smith v Pincombe
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1852 |
| Date | 01 January 1852 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 411
HIGH COURT OF CHANCERY
[653] smith v. pincombe. June 11, 13, 14, 1851; Jem. 14, 1852. To render a family compromise binding, there must be an honest disclosure by each party to the other of all auch material facts known to them relative to the rights and title of either as are calculated to influence the judgment in the adoption of the compromise; and any advantage taken by either of the parties of the known ignorance of the other of such facts would render the compromise void in equity, and liable to be set aside. A bill by a married woman suing by her next friend to set aside a compromise of her right to certain real estates as having been fraudulently obtained, against the parties to the fraud and her husband, alleged that the latter had refused to join as Co-plaintiff; this refusal was not proved in the'cause, and the husband appeared in support of the bill. An objection to the frame of the suit, that the husband ought to have joined as Co-plaintiff, held invalid. 412 SMITH V. PINOOMBE 3 MAC. & a. 6M. It is no objection to a decree in favour of a Plaintiff that it must necessarily benefit one of the Defendants. When a decree is affirmed upon the general merits of the case, an objection founded on an obvious inadvertency in such decree, and which might have been taken in the Court below, ought not to affect the costs of the appeal, if taken for the first time in the Appellate Court. Observations with respect to prolixity in pleading. This was an appeal by the Defendants Thomas and William Pincombe against a, decree of the late Vice-Chancellor of England, by which it was declared that the compromise in the pleadings mentioned, and the several orders and instruments made and executed pursuant thereto, were fraudulently obtained by the Defendant W. Pincombe, and with the knowledge and privity of the Defendant T. Pincombe, and that the same ought to be set aside, and whereby it was ordered that the Defendant W. Pincombe should execute a declaration of trust of the term in the pleadings mentioned, and that the Defendants T. Pincombe and W. Pincombe should deliver up all title-deeds and papers in their possession or power relating to the Great Woods estate, and the other real estates of the testator, and that the Defendant W. Pincombe should account for all rents received by him in respect of the said estates since the compromise, arid that the Defendants T. Pincombe and W. Pincombe should pay to the Plaintiff and her husband their costs of the [654] proceedings at law in the pleadings mentioned, and of the compromise, and of restoring the Plaintiff and her husband to their rights ; and that the Plaintiff and her husband should return the monies received by them under the compromise, and should release the Defendants therefrom, and that the costs of the Defendants other than T. Pincombe and W. Pincombe should be paid by the next friend of the Plaintiff, and repaid by the last-named Defendants. The parties to the suit were the Plaintiff Mary Pincombe Smith, formerly Mary Pincombe Smalden, suing by her next friend, and the Defendants were William Smith, her husband, and Thomas Pincombe and William Pincombe, executors and trustees under the will of John Pincombe deceased, and certain other persons having interests under that will. The equity relied upon by the Plaintiff was founded upon the allegations that the Defendants T. Pincombe and W. Pincombe, being executors and trustees under the will of the testator John Pincombe, possessed themselves of the documents and writings of the testator, and among them of two wills, one dated in 1834, and the other dated in 1837 ; that the Plaintiff was led by the Defendants to believe that her title to the estate depended entirely on the will of 1837; that the will of 1834 was altogether withheld from her knowledge; and that the Plaintiff, her husband, and her attorney all entered into the compromise in ignorance of the existence of the will of 1834, and under the belief that the Plaintiffs interest was derivable only under the will of 1837, the Defendants T. Pincombe and W. Pincombe having full...
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Greenwood v Greenwood
...therefore, even if looked upon as a family arrangement, cannot stand ; Stockley v. Stockley (1 V. & B. 23); Smith v. Pincambe, (3 Mac. & G. 653). It is, however, not a family arrangement, but a sale. The Plaintiff's are not debarred from relief by the form of the pleadings; Archbokl v. The ......