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Equity and volunteers
Published online by Cambridge University Press: 02 January 2018
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It is a commonplace that ‘Equity will not assist a volunteer’, or ‘Equity will not perfect an imperfect gift’. One problem posed by this rule is the question: what is the attitude of equity to instruments which, though not effective at law to transfer property, may at law give the volunteer beneficiary, or a person named as a trustee for volunteers, a right of action in damages? This is the very well-trodden ground of covenants to settle property and Re Pryce, Re Kay’s Settlement, and Re Cook’s Settlement Trusts, and the apparent conflict between these cases and Fletcher v Fletcher and Re Cavendish-Browne’s Settlement Trusts.
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- Copyright © Society of Legal Scholars 1988
References
1. [1917] 1 Ch 234.
2. [1939] 1 Ch 329.
3. [1965] Ch 902.
4. (1844) 4 Hare 67 (in referring to the named reports I have referred throughout to the editions as printed in the English reports).
5. [1916] WN 341.
6. Elliott 76 LQR 100; Hornby 78 LQR 228; Jones 24 CLJ 46; Matheson 29 LQR 397; Lee 85 LQR 213; Barton 91 LQR 236; Meagher & Lehane 92 LQR 427; Rickett 32 CLP 1, 34 CLP 189; Feltham 98 LQR 17; Friend [1982] Conv 280; Smith [1982] Conv 352; Lindsay & Ziegler 60 ALJ 387.
7. Cf Fuller (1941) 31 Col LR 799; Posner (1977) 6 JLS 411.
8. Cf Fuller loc cit.
9. le parties who had a legal claim were prima facie entitled to auxiliary relief, such as the examination of witnesses inperpefuam memoriam, discovery, account, through countervailing policy considerations like the privilege against self-incrimination might be a bar.
10. (1698) Pre Ch 84.
11. Ibid, at 84.
12. For the action for an agreed sum, cf Treitel, The Low of Contract (7th edn, London, Stevens, 1987) pp 779f; for the historical role in contract law of bonds and conditional bonds, Simpson, A History of thc Common Law of Contract (Oxford, Clarendon Press, 1975) pp 88ff.
13. If a bond was lost there was no remedy at law until 1789 (Read v Brookman (1789) 3 TR 151), since it was required to be produced to the Court (profert) to establish a cause of action.
14. (1666) 1 Ch Cas 77, 1 Eq Ca Ab 93, 14.
15. 1 Ch Cas at 77; ‘said in debate’, but doubted by the reporter.
16. (1686) 1 Vern 248.
17. I Vern 248.
18. An action was available at law, but equity offered superior remedies.
19. Above, n 4.
20. Fairbeard v Bowers (1690) Pre Ch 17, 2 Vern 202; Jones v Powelf (1712) 1 Eq Ca Ab 84, 2.
21. I have found (without a full search of the reports) 25 cases in which points directly relevant to my concerns were argued between 1670 and 1750, which is a fairly high level for a single point on a single form of transaction.
22. Eg Lawrence v Beverly (1670) 2 Keb 841; Kettleby v Atwood (1684-7) I Vern 298, 471; Symonds v Ruth (1691) 2 Vern 227, Pre Ch 23; Lechmere v Lechmere and Carlisle (1733) 3 P Wms 211, cas t Talb 80; & c.
23. Eg 24 years in Edwards v Countess of Warwick (1723) 2 P Wms 171, 1 Bro PC 207; 29 years in Vernon v Vernon (1730-2) P Wms 559, 1 Bro PC 267.
24. Cf Chesterman, ‘Family Settlements on Trust’, in Rubin & Sugarman (eds) Law, Economy & Society (Abingdon, Professional Books, 1984).
25. Neither common law nor equity would recognise an entail of personalty.
26. Though cf Gardner 7 OJLS 60.
27. Though not, it would seem from the cases, with privity. Cf Flannigan 103 LQR 564.
28. This could also pose problems with the Elizabethan statutes against fraudulent conveyances, 13 Eliz c 5 and 27 Eliz c 4, which enter into some of the cases. For the early history of these statutes cf Holdsworth, History of English Law (London, Sweet & Maxwell, 1945) Vol IV pp 480–2. Their scope and interpretation remained controversial up to the end of the nineteenth century; Sugden, Vendors B Purchasers (14th edn, London, Sweet, 1862) pp 7126 Dart, Vendors d Purchasers (5th edn, London, Stevens, 1876); Voluntary Conveyances Act 1893; see now LPA 1925, s 173.
29. Wentworth v Young (1638) Nels 36, Kinarton v Mainwaring (1664) 1 Ch Cas 47, Nels 94.
30. Jason v Jeruis (1685) 1 Vern 284.
31. (1683) 2 Ch Rep 271.
32. (1684) 1 Vern 298.
33. (1687) 1 Vern 471.
34. (1685) 2 Ch Rep 400, 2 Vern 20, (1 Eq Ca Ab 274).
35. Lancey v Fairchild (1689) 2 Vern 101, and cases cited pp 10–13.
36. Powell v Morgan (1682) Nott CC No 1157, (1688) 2 Vern 90, 1 Eq Ca Ab 85, 1, 269,11; Cann v Cann (1687) 1 Vern 480; Chichester v Bickerstaff (1693) 2 Vern 295.
37. (1674) 1 Ch Cas 243, DEC Yale (ed) Lord Nottingham's Chancery Cases (73 and 79 Selden Society) No 177 (cases cited from these reports will be cited as Nott. CC No n).
38. 73 Selden Society p 129.
39. Unless Lord Windsor v Read (1672) and Basset v Basset (l673), noted in Lord Nottingham's Prolegomma to Chancery (in DEC Yale (ed) Lord Nottingham's Two Treatises (Cambridge, CUP, 1965) Ch XXX Nos 4, 50 and 52 concern express covenants, which are not mentioned in the reports. If so this would damage my argument.
40. (1645) 1 ChRep 158.
41. ]bid, at 158.
44. Though what the consideration was, is not said. The considerations recited in the deed are (1) natural love, etc, and (2) to procure a reconciliation between the plaintiff and his father, who was the defendant's brother.
43. (1667) Nott CC Nos 282,470, l Ch Cas 294,2 Freem 3, 3 Swan 646, Rep t Finch 261, 2 Mod 86; (1687) 1 Vern 431, subsequent proceedings before Jeffrey's C.
44. A fine was a form of conveyance by fictional settlement of a fictional action used in barring entails, and in creating new settlements. Fines were replaced by disentailing assurances by the Fines & Recoveries Act 1833 (Megarry & Wade, The Law of Real Property (4th edn, London, Stevens, 1975) p 90). If the defendant had levied a fine, this would have operated by way of estoppel to bar his expectancy.
45. 73 Selden Society at 286.
46. Viner's Abridgment Vol 22 (1745) Title Uses pp 193ff collects the relevant cases.
47. Garland Publishing Reprint, London, 1979, at p 404.
48. ‘A conveyance in use is nothing but a publication of the trust’, loc cit.
49. It is, for instance, wider than the idea of the duty to support children as a species of consideration which appears in the seventeenth and eighteenth century authorities on defective transfers.
50. (1565) 1 Plowd 298. St German's account (Doctor & Student, 91 Selden Society 226f and discussion in the introduction by Barton pp XI-I) appears also to be based on the formal requirements of a feoffment. Simpson in an extensive discussion of this topic (op cit, supru n 12, Ch V, esp pp 348ff) says that it was not settled that a covenant to stand seised made for value would raise a use until late in the reign of Henry VIII, the objection being either that it amounted to a defective grant of land, or that it was a grant in futuro. The implications of this reasoning for specific performance of voluntary covenants, if there are any, would appear to be limited to the precise case of interests which would only pass by livery & seisin.
51. (1717) Gilb, Rep 139, Pre(:h 475, 1 Eq Ca Ab 123.9.
52. At common law lands descended to the heir were liable to the ancestor's specialty debts (ie liabilities on covenant; and bonds); but this rule did not extend to copyholds, which were made liable to the ancestor's debts only in 1833 (3 & 4 William IV c 104).
53. (1735) Cas t Talbot 153.
54. Cas t Talbot 153 at 156.
55. (1739) 1 Atk 625; as Bolton J. Bolton, 3 Swan 414n.
56. Jenkins v Kemish (1665) 1 Lev 150, Hardr 395 (Hale CB), 1 Lev 237, 1 Ch Cas 103 (Bridgman LK) appears to be the first case in which this argument was raised, in the context of 27 Eliz c 4. For this period, see Edwards v Warwick (1723) 2 P Wms 191, aff d HL 1 Bro PC 207; Neeve v Keck (1724) 9 Mod 106, 2 Eq Ca Ab 24; Goring v Nash (1744) 3 Atk 186; Stephens vTrueman (1748) 1 Ves Sen 73; Ithell v Deane (1749) 1 Ves Sen 215, But contra, Osgood v Strode (1724) I P Wms 245, 10 Mod 533, 2 Eq Ca Ab 25.
57. Edwards v Warwick, per Lord Macclesfield; Lechmere v Lechmere (1733) 3 P Wms 211 Uekyll MR) affd on appeal (Talbot C) (1735) cas t Talb 80; Goring v Nash per Lord Hardwicke.
58. (1733) 3 P Wms 211 at 223.
59. (1724) 9 Mod 106.
60. 9 Mod 106 at 108.
61. (1724) 1 P Wms 245 at 248.
62. Substantial damages were, however, awarded in Cotton v King, King v Cotton (1726) 2 P Wms 358, (1732) 2 P Wms 674 (voluntary covenant to transfer stock).
63. (1730) 2 P Wms 594 at 600.
64. 1 Bro PC 267. Cf also Chaplin v Homer (1718) 1P Wrns 482; Lechmere v Lechmere at 3 P Wms 215 and cas t Talb 90–91); Goring v Narh at 3 Atk 189; Stephens v Truman at 1 Ves Sen 74.
65. (1748) 1 Ves Sen 73.
66. Ibid, at 74.
67. Barton 91 LQR 236 exposes clearly the fallacies of Lee's argument, 85 LQR 213, that there is a difference in policy or principle between present and after-acquired property.
68. (1725) Amb 520, 831, 3 Swans 427n.
69. (1750) I Ves Sen 511.
70. Ibid, at p 514.
71. (1789) 1 Vesjun 50; 3 Bro CC 12. The report in Vesey is generally better, but Brown contains some additional information on the further proceedings in the case.
72. 1 Vesjun 50 at 54–5.
73. Ibid.
74. (1802) 6 Ves jun 656.
75. Ibid, at 662.
76. Cf eg Pettit, Equity and the Law of Trusts (5th edn, London, Butterworths, 1984) p 97.
77. (1811) 18 Ves jun 84 at 99.
78. (1811) 18 Ves jun 140 at 149–50.
79. (1812-17) 3 Mer 249, (the authority of this report is questioned by Eldon C, Turn & R 296. An appeal to the HL failed; Lincoln's Inn HL Cases Vol XXV part 4 p 554, as cited in Davenport v Bishopp, 2 Y & C CC 456n).
80. Above n 52.
81. (1841) Cr & Ph 138.
82. Ibid, at 141.
83. (1880) 15 Ch D 228.
84. This argument was accepted by Lord Northington obiter in Hale v Lamb (1762, 4) 2 Eden 292.
85. (1840) 6 M & W 862.
86. (1847) 16 M & W 826; cf infra n 97 and text there.
87. [1968] AC 58.
88. (1851) 1 de GM & G 176.
89. Ibid, at 188.
90. Antrobus v Smith (1805) 12 Ves jun 39 (Grant MR).
91. (1867) LR 4 Eq 30.
92. Cf Hanbury & Maudsley, Modern Equity (12th edn, London, Stevens, 1985) pp 244–5.
93. [1958] 2 QB 146, & cf Heywood v Brunswick & cBS (1881) 8 QBD 403; LCC v Allen [1914] 3KB 642.
94. [1917] 1 Ch 234.
95. References can be found in the 6th edition of Lewin on Trusts (London, Maxwell, 1875) at pp 60ff. Legislation became necessary to resolve the difficulties which had been created; Judicature Act 1873, s 25(6), now LPA 1925, s 136.
96. [1952] Ch 499.
97. (1834) 3 My & K 36.
98. Contra, Edwards v Jones (1836) 1 My & Cr 226; Beatson v Beatson (1841) 12 Sim 281 at 295, Ward v Audland (1845) 8 Beav 201 at 211-2; accord, Kekemich v Manning (1851) 1 de GM & G 176 at 192f.
99. (1851) 1 de GM & G 176.
100. Ibid, at 189.
101. (1874) LR 18 Eq 315.
102. [1964] Ch 288.
103. In fact the property in question was a vested future interest under the will, and the settlor not only covenanted to assign it but also declared that it was ‘subject in equity’ to the trusts of the settlement.
104. Cf the argument of Sharp for the plaintims in Dillon v Coppin (1839) 4 My & Cr 647 at 667.
105. (1833) 2 My & K 769.
106. (1839) 10 Sim 474.
107. (1843) 6 Beav 283.
108. (1844) 4 Hare 67.
109. (1837) 8 Sim 571, (1838) CP Cooper 146, (1845) 8 Beav 201, (1847) 16 M & W 826.
110. (1850) 8 Hare 310.
111. [1916] WN 341.
112. Cf eg Hanbury & Maudsley, op cit, pp 128–133; Pettit, op cit, pp 97–8.
* I would like to thank Margaret Richards, Mavis Pilkington and Mark Ockelton for helpful discussions on earlier drafts ofthis article, and Professor J. A. Andrews for editorial suggestions. None of these is, of course, in any way responsible for any errors into which I may have fallen.