Grealish v Murphy

Judgment Date16 October 1946
Date16 October 1946
Docket Number(1943. No. 307P.)
CourtHigh Court
(1943. No. 307P.)
Grealish v. Murphy.

Settlement - Action to set aside - Improvident transaction - Settlor mentally deficient - Settlor separately advised by his own solicitor as to the nature and effect of deed - Solicitor not knowing all the facts - Undue influence alleged - Jurisdiction of Court of Equity to set aside deed when parties do not meet on equal terms.

Witness Action.

The plaintiff, Peter Grealish, a farmer, who resided at Carnmore, Oranmore, Co. Galway, sought to set aside an indenture of settlement, dated the 24th October, 1942, and made between him and the defendant, Thomas Murphy, who resided at Kilgariff, Headford, Co. Galway.

The plaintiff's claim was for:—

1. A declaration that the deed was fraudulent and void and not binding on the plaintiff, and an order that it be set aside and cancelled.

2. An order for the rectification of the Register, Folio No. 9815, Land Registry, Register of Freeholders, County Galway, accordingly.

3. An order for the payment by the defendant to the plaintiff of the sum of £500 wrongfully obtained by the defendant from the plaintiff in October, 1942; alternatively, a declaration that the defendant was a trustee of the said sum for the plaintiff, and an order for the payment thereof by the defendant to the plaintiff; alternatively, an order for the payment of the said sum by the defendant as money had and received to the use of the plaintiff.

4. An order for the payment by the defendant of the sum of £645, being money had and received by the defendant in March, 1943, to the use of the plaintiff.

5. A declaration that the plaintiff was solely and beneficially entitled to the sum of £2,000 lodged upon deposit receipt in the Galway Branch Office of the National Bank Limited, in the joint names of the plaintiff and defendant, and to all interest accrued due thereon and all moneys represented by the said deposit receipt, and that the defendant was a trustee thereof for the plaintiff.

6. An order that the defendant do endorse and hand over to the plaintiff the original of the said deposit receipt and do all such acts as may be requisite to enable the plaintiff to obtain payment of the moneys therein comprised; and that if necessary some person be appointed by the Court to endorse the said deposit receipt for and on behalf of the defendant.

7. An order for the taking of an account between the plaintiff and defendant.

The facts have been summarised in the head note and are sufficiently stated for the purpose of this report in the judgment of Gavan Duffy J.

The plaintiff brought an action against the defendant claiming:—1, to set aside a settlement either as improvident or on account of his own mental incapacity to understand it, coupled with undue influence by the defendant; 2, to assert his sole title to a sum of money placed on deposit with a bank in the joint names of the plaintiff and defendant, and 3, to recover further sums of money as improperly obtained or retained by the defendant from the plaintiff, and to have an account taken.

Plaintiff, a farmer, over 60 years of age, lived alone on his freehold farm, and was, according to the medical evidence, mentally deficient. He executed the deed after consulting his solicitor, who explained the effect of the deed to him. The defendant, who was 32 years of age, had been a road worker and who subsequently did haulage work, having a lorry and car of his own. The plaintiff had promised the defendant that he would give the defendant his farm after his death if the defendant would in the meantime work the land for him. The settlement purported to make the plaintiff, as beneficial owner, assign the farm absolutely as from his death to the defendant, his heirs and assigns, subject to a life interest in the plaintiff; the land was expressly charged with a right for the defendant to reside in the plaintiff's house and to be supported and maintained out of the land during the plaintiff's life; the defendant covenanting with the plaintiff without reward to reside in the plaintiff's house and work and manage the farm and to account for all moneys expended or received by him on plaintiff's behalf.

Held that the settlement was an improvident one: the plaintiff surrendering irrevocably his own absolute title for a life interest in consideration of personal covenants, backed by no adequate sanctions, the farm itself being hypothecated to secure the defendant; the contention of the defendant that the plaintiff was separately advised by an independent solicitor being unsustainable as it appeared from the evidence that the plaintiff's solicitor did not know all the material facts and that he did not give the plaintiff a complete explanation of the nature and effect of the deed, and was unaware of the full extent of the plaintiff's mental deficiency.

Harrison v. Guest, 6 De G., M. & G. 424; 8 H. L. C. 481, and Coomber v.Coomber, [1911] 1 Ch. 723, distinguished.

Held further that, on the facts, the deed could not be set aside on the ground of undue influence.

But, apart from any question of undue influence, the plaintiff, by reason of his weakness of mind coupled with the deficiencies in the legal advice under which he acted, was entitled to have the settlement set aside and the Register of Freeholders rectified.

Principle laid down by Lord Hatherley in O'Rorke v. Bolingbroke, 2 A. C. at p. 823, as to Equity interfering whenever the parties to a contract have not met upon equal terms, applied. Scope of the principle considered.

Held also that the plaintiff was entitled to assert his sole claim to the money on deposit in the joint names of himself and the defendant, and to recover the further sums of money claimed, and to have an account taken.

Cur. adv. vult.

Gavan Duffy J. :—

The plaintiff sues (1) to have an indenture of settlement of October, 1942, set aside, either (a) as improvident, or (b) for his own mental infirmity and incapacity to understand the deed, coupled with undue influence by the defendant; (2) to assert his sole title to a sum of £2,000 standing at the National Bank, Galway, in the joint names of plaintiff and defendant; (3) to recover two sums of £500 and £645, as moneys improperly obtained or retained by the defendant from the plaintiff; and (4) to have an account taken. The defendant justifies his action under each head.

Peter Grealish, the plaintiff, is by way of being a farmer; he is a bachelor in the sixties; he is a man of a generous turn, but obstinate; he can hardly read and he signs as a marksman; he is afflicted with a worse than Boeotian headpiece and a very poor memory; a long life has not taught him sense. At the opening of the year 1942 this poor old victim of his circumstances was living under rather dismal conditions; Peter, for as Peter he is known, had a couple of labouring men sleeping under his roof, but otherwise lived alone on a remote farm and ranch of some 180 acres at Carnmore in the Oranmore district of the County of Galway, neglected by his relatives and almost bereft of friends; he was loaded with possessions, far above his modest wants and far beyond his modest capacity for management; moneys exceeding £5,500 lay to his credit on deposit at a bank in Galway, though considerable portions of this fortune were destined to be dissipated in the course of the year 1942; he had some cattle and his land had for many years brought him into frequent conflict with certain of his smaller neighbours, who were in the habit of taking conacre from him; he felt, as I surmise, that he could not by himself hope to hold his own in any considerable purchases or sales of cattle; he also owned a little farm a few miles away from Carnmore; and he needed, and realised that he needed, a reliable factotum as manager and as protector.

Peter had tried hard, and failed, to solve his problem;

he had sought to marry first a cousin of his, then a niece, and finally another niece, to one, Thomas Fox, who had promised to bring in a marriage portion, payable to the plaintiff, first of £400, then of £1,000 and lastly of £500, and to look after Peter and his affairs, in exchange for a settlement of the big farm, as from Peter's death, on Fox and his bride, and their maintenance on the farm during Peter's life; Fox had eventually refused the first two ladies; the third deed had been executed on December 3rd, 1941; but a few weeks later the third lady had positively said "No."

Peter was bitterly disappointed, but he was not defeated. His family had known a family of Murphys, who lived as far away as Headford, and he resolved to invite one of the sons to step into the breach. Accordingly Thomas Murphy, the defendant, whom Peter had never seen, presented himself at Carnmore on January 26th, 1942; Peter liked his looks and at once came to business; he admits that he promised to give Murphy the farm after his own (Peter's) death, if Murphy would in the meantime work the land for him. In view of that admission, borne out by Peter's later instructions to his own solicitor, I need not determine precisely how much further Peter's promises may have gone, though Murphy is much more explicit; his evidence is that Peter explained that he was boycotted and that his land had been forcibly seized and that he wished to put an end to the conacre holdings on his land and to have a man to manage and work the farm and live with him; he says that Peter went on to promise that, if Murphy would come, Peter would leave him the farm, buy him a new lorry and also, if he wished, a new car, settle on Murphy any sum of money he required and let him marry any girl he liked; Murphy says that Peter wanted to go to a solicitor the very next day to "sign me over the farm."

Murphy's reply, he says, was that he must see his own solicitor, Mr. McDonagh, at Tuam, and he saw him on January 27th, and discovered the Fox settlement of the previous month; he returned at...

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