Page:The English Reports v1 1900.pdf/595

of Camolin, and of Knockengarrow, otherwise Knockgrenan; [297] and if any of the said woods, exclusive of the said woods and timber trees in the said park of Camolin and of Knockengarrow, otherwise Knockgrenan, had been cut down by the appellant, or his orders, since the date of the said articles, he was to account with and pay to the respondent one moiety of the value of the woods so cut down: and in order to ascertain the same, the Master was to take an account of such woods so cut down, and the value thereof. And the appellant and respondent were directed to levy fines and suffer common recoveries of the estate, of which the said Earl Arthur died seised or possessed in Ireland, and to execute conveyances and assurances, one to the other, according to the tenor and intent of the said articles; and the Master was to prepare and settle the same accordingly. The appellant's cross bill was ordered to be dismissed, and the consideration of the costs, as between him and the respondent, was reserved until the Master should have made his report.

From this decree the Earl thought proper to appeal; and on his behalf it was contended (D. Ryder, W. Murray), that upon a plain construction of all the said wills and codicils, the respondent had no right, nor even a colourable title to any thing comprised in the articles of June 1737, but that the title to all the premises appeared clearly to have been in the appellant; so that those articles being obtained without any real consideration, and being in their nature both unequal and unreasonable, a Court of Equity ought not to have decreed an agreement of that kind to be specifically performed. That these articles were founded in error, and a total ignorance of the appellant's title, he not knowing, that by the said wills and codicils he had a good title to the whole estate which passed by the will of Earl James; and that Earl Arthur was only tenant for life of the mansion house, lodge, and park of Camolin, and could not dispose thereof by will. Besides, the appellant was drawn into this agreement, not only by a concealment of what ought to have been discovered to him, and taking an unfair advantage of bis ignorance and credulity, but also by direct imposition and misrepresentation; and accordingly, the first agreement was absolutely waived and departed from by the second.

It is, however, objected on the part of the respondent, that the first agreement was in part performed by him, by delivering possession of the English estate to the appellant, and joining with him in levying fines and suffering recoveries thereof; and that therefore the appellant ought not to be excused from performing his part. But to this it is answered, that the respondent had not the least colour of title to the possession of the English estate, which was taken by his friend Mr. Annesley, for his use; it not being so much as pretended, that the codicil of the 23d of November, which settled the English estate, was revoked by the will of the 9th of December, or otherwise; and as that was a tortious possession, it would be extremely unreasonable, that the yielding it up to the appellant, who had the right, should be deemed an adequate consideration for his giving up a third part of his estate. And, as to the respondent's joining with him in fines and recove-[298]-ries, it served only to shew the appellant's ignorance of his title, in desiring that assistance from the respondent, which could not add to it, or be of any service to the appellant, who might have levied fines and suffered recoveries, without the respondent's concurrence, and even against his consent.

But it is further objected, that as no direct fraud was proved against the respondent, he ought not to be answerable for the confidence placed by the appellant in Mr. Annesley, or for any misrepresentations or concealments of his. To this it is answered, that the circumstances of fraud, mentioned in the objection, are properly applicable to the respondent himself, who had better opportunities of learning the nature of this case than the appellant had; he acted by good advice, the appellant did not; he at least took advantage of the appellant's ignorance and credulity, and endeavoured to profit by it, and which ought to have been a sufficient reason with a Court of Equity, not to have decreed a specific performance of so unequal an agreement.

It is also objected, that the second agreement was not intended to be obligatory; and if it had, was void by the statute of frauds and perjuries, because it was not subscribed by the parties. But that this second agreement was really intended to be absolute and obligatory, appeared from an undoubted fact, viz. that it was partly carried into execution by the delivery and acceptance of the possession of the Dublin estate, as part of the £1000 per ann. which was to be enjoyed by the