The Right Hon. Mason Gerand, Earl of Aldborough, - Appellant; Henry Norwood Trye and Others, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 15 June 1840 |
| Date | 15 June 1840 |
| Court | House of Lords |
English Reports Citation: 7 E.R. 1136
House of Lords
Mews' Dig. vii. 271, 276, 431; xi. 716; xii. 1062; S.C. West, 221. On point as to "fair value," approved in Talbot v. Staniforth, 1861, 1 J. and H. 503; Fry v. Lane, 1888, 40 Ch. D. 320. On point as to position of grantor of voluntary deed, discussed and approved in Judd v. Green, 1876, 33 L.T., N.S., 597; and Nant-y-glo and Blaina Ironworks Co. Ltd. v. Taylor, 1876, 35 L. T., N.S., 125; see also The Money-Lenders Act, 1900.
VII CLARK & FINNELLY. ALDBOROUGH (EARL OF) V. TRYE [1840] /jr^.^/1- ò/ ,?y?3" ? ^f/i' // ò' [436] The Right Hon. MASON GERARD, Earl of ALDBOROUGH,-Appellant; HENRY NORWOOD TRYE and Others-Respondents [June 2, 4, 15, 1840]. [Mews' Dig. vii. 271, 276, 431; xi. 716; xii. 1062; S.C. West, 221. On point as to " fair value," approved in Talbot v. Staniforth, 1861, 1 J. and H. 503 ; Fry v. Lane, 1888, 40 Ch. D. 320. On point as to position of grantor of voluntary deed, discussed and approved in Judd v. Green, 1876, 33 L.T., N.S., 597 ; and Nant-y-glo and Blaina Ironworks Co. Ltd. v. Taylor, 1876, 35 L. T., N.S., 125 ; see also The Money-Lenders Act, 1900.] A., being tenant in tail of large estates expectant on the death of his. father, in consideration of £6000 and £10,000 advanced to him by 0., charged the estates with £12,000 and £20,000 to be paid only in the event of surviving his father, who was about 80 years of age, A. being about 43; and he granted to R., his agent in these transactions, in consideration of his services, an annuity charged on the same estates. R. assigned the annuity to 0. for valuable consideration. 0. filed a bill against A., after his father's death, to enforce these securities; and A. filed a cross bill to set them aside, charging that O. and R. took advantage of his distress, and that no adequate consideration was given him for the post-obit securities, and no consideration for the annuity; and at the hearing he gave evidence that the consideration for the two sums of £12,000 and £20,000 was not the full value according to the tables and calculations of actuaries. 0. gave no evidence of value.-Held, that the Court, in the absence of evidence to- enable it to decide the question, exercised a proper discretion in directing the Master to inquire what, at the time of the transaction, was the fair market price of the two sums so secured to be paid, regard being had to the ages of A. and of his father, and to the circumstances of the estates and A.'s interest in them.-(Infra [7 Cl. and F.], p. 456.) A person seeking the benefit of a dealing with an heir expectant for his expectancies, must show that he gave him an adequate consideration, which is the fair market price at the time of dealing, and not the value according to the calculations of actuaries on the tables.-(Gowland v. De Faria [4 Sim. 162] explained ; Infra [7 Cl. and F.], p. 457-461.) The rule that a fair price is to be given, is sufficient protection to heirs expectant or reversi oners; but the rule of full value would not be any protection, as in that case they could not deal with their expectancies or sell their interest at all.-(Infra [7 CL and F.], p. 457, 465.) A sale by public auction is within the proper rule, on the plain principle that the sum which the thing will fetch is the sum which it is worth.-(Infra [7 Cl. and F.], p. 460.) A party comes too late to complain of a decree: after joining in the inquiry directed by it, and the result is against him ; and he is not entitled to question the Master's report after it is confirmed, having taken no exceptions.-(Infra [7 Cl. and F.], p. 455-6.) If a person grants a voluntary deed, enabling the grantee to raise money on it from a third person, the grantor cannot get back or set aside the deed without paying what was advanced on it without fraud.-(Infra [7 Cl. and F.], p. 463.) The Appellant is the only son of Benjamin, late Earl of Aldborough, who was one of the younger sons of [437] John, formerly Earl of Aldborough, and succeeded to the Earldom in 1823, in consequence of the death of his elder brothers without leaving male issue. Earl John, the Appellant's grandfather, died in 1802, having by his will, dated the 13th of December 1772,. devised various towns and lands of great extent and value, in the counties of Limerick, Tipperary, Dublin, Wexford, Wicklow, and Kildare, to certain uses, under which, in the events which happened previously to the year 1824, Benjamin, Earl of Aldborough, was in that year tenant for life of all those estates, with remainder to the Appellant in tail male. Mason Gerard, esq., uncle of the Appellant's mother, died in 1784, having by his will, dated the llth of March 1782, given and devised all his real and personal estates, of what nature and kind soever, in trust (after payment of his debts and legacies, 1136 ALDBOROUGH (EARL op) V. TRYE |"l840j VII CLARK & FINNELLY. which have been long since paid) to apply one moiety of the net produce thereof to his sister, Sarah Burton, for her life, and after her decease, to the use of the said Benjamin Stratford, afterwards Earl of Aldborough, for his life; and as to the other moiety thereof, to the use of the said Benjamin for his life; and as to the whole of such real and personal estates, after the death of Benjamin, to the use of his first and other sons by Martha his wife, severally and successively, in tail male. Martha, Countess of Aldborough, was the Appellant's mother: she was daughter of Sarah Burton, who died before the year 1824. In the year 1825, when the transactions with Mr. John Harvey Ollney (after mentioned), which form the subject of this appeal, commenced, Benjamin, Earl of Aldborough, was seventy-nine years of age; [438] the Appellant, then Viscount Amiens, was about forty-two. The properties in which he was then interested in remainder were subject to some incumbrances, but they produced to his father a clear rental of £8000 a year. He had an allowance from his father of only £500 a. year ; and having no other income for the support of himself and family, he was under great pressure and difficulties, and confined within the rules of the King's Bench prison for debt. In those circumstances the Appellant entered into a treaty with Mr. Ollney for raising a sum of £6000; and for the immediate advance of that sum he agreed to give a security on the estates comprised in the wills before recited, and his own personal security, for £12,000, payable after his father's death, in the event of his surviving his father. Accordingly, by an indenture dated the 21st of December 1825, and made between the Appellant, by his description of Viscount Amiens, of the one part, and John Harvey Ollney, of the other part, the Appellant, in consideration of £6000, covenanted that in case he should be living at the time of the decease of Benjamin, Earl of Aldborough, his father, he, the Appellant, his heirs, executors or administrators, would, within three months next after the decease of the said Earl, pay Ollney, his executors or administrators, the sum of £12,000 of lawful money of Great Britain. And by this indenture the Appellant .demised unto- J. H. Ollney, all those several towns, lands and hereditaments, situate in the several counties before mentioned in Ireland, and all other lands, tenements and hereditaments comprised in and devised by the said wills of John, Earl of Aldborough, and Mason Gerard; and all other [439] lands, tenements and hereditaments whatsoever, in Ireland, of or to which the Appellant was seised or entitled at law or in equity, or otherwise howsoever, in possession, reversion, or remainder; to hold unto J. H. Ollney, his executors, administrators and assigns, for the term O'f 99 years without impeachment of waste, in trust for Benjamin, Earl of Aldborough, during so much of that term as he should live; and after his decease, in trust for the person or persons for the time being entitled to the said towns, lands, tenements and hereditar ments, in remainder expectant on the determination of that term, in case the Appellant should depart this life in the lifetime of the said Earl, or if the Appellant should survive him, then until default should be made in payment of the sum of £12,000; and in case of such default, then that Ollney, hia executors, administrators or assigns, should, at any time thereafter, and without the necessity of any further authority or concurrence of the Appellant, by sale or mortgage levy and raise the sum of £12,000, or so much thereof as should remain unpaid, with interest, to be computed from the end of three months next after the decease of the said Earl, together with all incidental costs and charges. The indenture contained a covenant by the Appellant to levy fines; and also, in case he should survive the Earl his father, to suffer common recoveries of the said lands and hereditaments; and it was thereby agreed and declared, that the fines and recoveries should operate and enure to the use of J. H. Ollney, his executors, administrators and assigns, for the said term, upon the trusts before expressed. Fines were accordingly levied of the said lands by the Appellant, in the Court of Common Pleas in [440] Ireland; and the payment contingently, as before stated, of the said sum of £12,000, was further secured by the Appellant's bond, executed by him as part of the same transaction. The Appellant having received the above £6000-with considerable deductions under the designation of costs, premium and commission-was soon afterwards released from confinement. Being again pressed by difficulties, and in urgent distress, 1137 VII CLARK & FINNELLY. ALDBOROUGH (EARL of) V. TRYE [1840] he was obliged again to raise money; and accordingly, through the agency of Mr. Lucius Hooke Robinson, by whose agency he had raised the £6000, it was arranged that the Appellant, in consideration of...
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