M'Mechan v Warburton

• Jurisdiction: Ireland
• Judgment Date: 28 July 1894
• Date: 28 July 1894
• Docket Number: (1893. No. 188.)
• Court: Court of Appeal (Ireland)

M'Mechan

and

Warburton

V.-C.

Appeal.

(1893. No. 188.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1896.

Voluntary deed — Rectification.

The Court will rectify a voluntary deed after the death of the donor where it is clearly shown that, through mistake, the deed failed to carry out the proved intention of the donor.

Action, claiming to have an indenture, dated the 24th September, 1891, and made between Eliza Jane Warburton, since deceased, of the one part, and the defendants Thomas Fisher and

Thomas Cooney of the other part, rectified by including in the conveyance of certain hereditaments situate in Little Patrick-street, Little York-street, and George's-street, Belfast, therein contained, all other the hereditaments comprised in the Landed Estates Court conveyance, dated the 30th July, 1853, to be held upon the same uses as were in the said indenture of the 24th September, 1891, declared in respect of the said hereditaments therein comprised, and also by including an assignment of the sum of £562 ordinary stock of the Great Northern Railway of Ireland, and twenty-four shares in the Northern Banking Co., Limited, standing, at the date of the said indenture, in the name of the said Eliza Jane Warburton, to the trustees of the said indenture, upon trust, after payment thereout of the sums of £300, £150, and £180 in the said indenture mentioned, for the plaintiffs in equal shares. The plaintiffs claimed that the defendant Wm. R. H. Gregg might be declared a trustee of the said premises comprised in the said Landed Estates Court conveyance other than those mentioned in the said indenture of the 24th September, 1891, and might be directed to convey the same upon the uses above mentioned, and that the defendant John Warburton, the husband of the said Eliza Jane Warburton, might be declared a trustee of the said sum of £562 ordinary stock of the Great Northern Railway of Ireland and the said twenty-four shares in the Northern Banking Co. The defendant John Warburton was sued as administrator of the said Eliza Jane Warburton (who died intestate on the 19th June, 1892), and also in his personal capacity. The defendant W. R. H. Gregg was sued as her heir-at-law, and the defendants Thomas Fisher and Thomas Cooney were sued as the trustees of said indenture. It was proved that by mistake and inadvertence on the part of the solicitor for the settlor the premises Nos. 17, 19, and 21, Little York-street, Belfast, and also certain parcels of land in Patrick-street, and the sum of £562 ordinary stock of the Great Northern Railway, and the said shares in the Northern Banking Co., were omitted from the operative part of the said settlement, and that the omissions were contrary to the express instructions of the settlor, and that though she executed the settlement she never sanctioned or became aware of the said omissions.

Twigg, Q.C., Meredith, Q.C., and Oulton, for the plaintiffs:—

A deed may be rectified after the death of the donor, though voluntary, on clear proof of mistake: Lister v. Hodgson (1); Ellison v. Ellison (2); Vaizey on Settlements, p. 1568; Godefroy on Trusts, p. 108; Turner v. Collins (3); Lackersteen v. Lackersteen (4); James v. Couchman (5); Wright v. Goff (6). This is not like a suit against a living donor to compel him to do something he is not willing to do. It is only doing for the donor what it was her manifest wish to do.

There is no fraud in this case, but the principle which governs cases of fraud should be applied where mistakes and misapprehension of the donor's instructions occur. Where a person is fraudulently prevented from carrying his intentions into effect the Court will see that all parties are placed in the same position as if he had done so: White v. White (7); Middleton v. Middleton (8); Mestaer v. Gillespie (9); Langley v. Brown (10); Ramsbottom v. Gosden (11); Story's Equity Jurisprudence, p. 116.

Piers White, Q.C., and F. Fleming, for the defendant John Warburton:—

The Court will not enforce specific performance in favour of a volunteer. The same principle should be applied to reforming a deed at the instance of a volunteer. Lister v. Hodgson (1)...