Page:The English Reports v1 1900.pdf/619

The respondent Lord Kingsland did not appear, or make any defence to this appeal; but on behalf of the other respondents it was contended (J. Browne, T. Clarke), that as to the issue, touching the consent of Mr. Daly, the appellant had no just reason to complain of it's being directed; it being fully proved in the cause, that Lord Kingsland declared, he would never conclude any agreement for a lease of this estate, without such consent; and that in all his treaties for [333] such lease, he constantly referred the parties to Mr. Daly for his approbation. That this was evident even in the instance of his agreement with the appellant, by his giving him no receipt for the £40 alledged to have been paid at the conclusion of the verbal agreement; and the subsequent transactions of the appellant himself, all evidently shewed, that such consent was a previous condition, necessary to be obtained by him; and that neither he, or any of the other parties to that transaction, considered this pretended agreement as conclusive, or any thing more than a bare proposal, till the consent and approbation of Mr. Daly should be obtained. That the appellant was so conscious that this consent was a material fact, and necessary to be established, in order to support his verbal agreement, that he alledged in his bill, that Mr. Daly seemed pleased with this agreement, and that thereupon Goddart prepared a draft of the lease, which he would not otherwise have done; and the appellant had (though unsuccessfully) attempted to prove Mr. Daly's consent, in a conversation between him and the appellant and his attorney, in the ærea of the four courts in Dublin.

Nor had the appellant any more reason to complain of the other issue, concerning notice; for if the respondents, before the perfection of the minute by Lord Kingsland to Lord Athunry, had no notice of any absolute agreement between Lord Kingsland and the appellant, no decree ought, according to the rules of equity, to be made against them in favour of the appellant; even supposing his behaviour had, in other respects, been fair and unexceptionable, they having obtained the legal estate, and being, in such case, purchasers for a valuable consideration. Besides, both the respondents had, in their answers, fully denied notice of any title in the appellant, until after the perfection of the minute; except that they had heard of Lord Kingsland's having been prevailed upon to make a verbal promise to let the premises to the appellant, provided Mr. Daly approved thereof; but that they had at the same time heard, that Mr. Daly had absolutely refused his approbation; and that such promise had been obtained from Lord Kingsland by surprise and misrepresentation; and these answers stood uncontradicted by any evidence on the part of the appellant. That the right of the respondent Wakely could not be any way affected by the appellant's agreement with Lord Kingsland, unless the same was absolutely conclusive, and the terms of it certain and reduced into writing, before the agreement between Lord Kingsland and Lord Athunry was made; parol agreements relating to lands, being void by the Irish statute of frauds, 7 Will. 3. But such agreement was so far from being clearly made out by the appellant, so as to enable the Court to found any decree thereon, without directing these issues, that both from the charges in his bill, and the proofs in the cause, his parol promise from Lord Kingsland appeared to be uncertain as to the nature and terms of it, and at most but a conditional agreement, depending on Mr. Daly's subsequent consent. That most of the appellant's written evidence was ante-[334]-dated and was procured after he had seen the minute from Lord Kingsland to Lord Athunry, in trust for Mr. Wakely; with a fraudulent design to gain a priority, and defeat that written agreement; and with an intent to make an unjust advantage even of Lord Kingsland, by draining eleven acres of the mill-pond, and adding them to his brother's estate: and the appellant's behaviour throughout the whole transaction had been such, as might possibly have been sufficient to have given the respondents an equity against him; but could by no means furnish him with any colour of equity against them, to take away their legal right, accompanied with a prior and superior equity.

After hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the order or decree therein complained of, affirmed. (Jour. vol. 27. p. 32.)