relief. French v. Morgan (a). At Law, we should be obliged to bring an action for every gale of the annuity-a course of proceeding inconvenient to the plaintiff and harrassing to the defendant-or we should take damages for the entire value of the annuity, to be ascertained by a jury, who would not have any elements to enable them to estimate the value of an annuity depending on the joint lives of plaintiff and defendant. Mr. Warren, Q. C., Mr. Brewster, Q. C., and Mr. J. S. Townsend, for the defendant. This contract was entered into by defendant shortly after he came of age, upon his return to Ireland; and he was under the impression that he had never given any sanction to the release, and that the annuity was merely a voluntary payment, which he was at liberty to discontinue when he pleased. The plaintiff confirmed him in this belief, by stating in her bill that the letter was mislaid, and induced the defendant to deny it in his answer. It must be admitted now that he was mistaken in that belief. Still the plaintiff has made no case to entitle her to relief in this Court. The defendant's letter to G. Swift is merely a direction to his agent, out of what fund the payments were to be made, and does not constitute a charge on land. The plaintiff has, in her bill, treated it as a personal contract, and cannot now convert it into a charge on land. The letter to G. Swift was not in issue in the cause, while, in the cases cited on the other side, the facts were all ascertained, and the only question was, the consequence of Law resulting from them. Taking this as a mere personal contract, the Court will not interfere, but leave the plaintiff to her remedy at Law. Mitford on Pleading (b). It is only where the legal remedy is inadequate or defective, that a Court of Equity will interfere. Flint v. Brandon (c); Hill v. Barclay (d). In the former case, Sir W. Grant refused specific performance of a covenant to lay down a gravel pit, on the ground that there was a remedy at Law. The case of Brough v. Oddie (e) is precisely in point. There, the defendant undertook to pay an annuity to the plaintiff, in case certain other parties failed in performing an engagement entered into with her. The event happened, and she brought her bill for a specific performance of the agreement; but Sir J. Leach, M. R., dismissed the bill, saying, "That admitting the event to have happened on which the pay"ment was to be made, the remedy of the plaintiff was by action at "Law. That the plaintiff has a remedy at Law, appears from the case of Gibson v. Dickie (f), which was an action of assumpsit for an annuity. 1841. Chancery. SWIFT บ. SWIFT. 1841. Chancery. SWIFT บ. SWIFT. In Newman v. Auley (a), the obligor in the bond had devised his estates to the defendant, charged with the payment of his debts. In Cooke v. Wiggins (b) the trustee refused to put the bond in suit. Mr. Maley, in reply. The contract entered into by the plaintiff was such as to have rendered her liable to this Court for the performance of it. The plaintiff might have filed his bill to have his estate cleared from the encumbrance; and the Court would have compelled the plaintiff to have executed the release. Now, the remedy for vendor and purchaser must be mutual where there are mutual covenants, there must be mutual remedies. Lewis v. Lechmere (c). In Ball v. Coggs (d), an agreement, by the owner of certain brass works, to give the plaintiff, who had invented improvements in the manufacture, an annuity for his life, and 3s. 6d. per ton for every ton of brass wire made by them, was specifically performed. In Withy v. Cottle (e), a bill by the vendor of an annuity charged on stock, for specific performance of the agreement was demurred to; but Sir J. Leach overruled the demurrer, saying, "The remedy here must be mutual for vendor and pur"chaser. In Adderly v. Dixon (f), the plaintiff, who had purchased and taken assignments of certain debts proved under a commission of bankrupt, agreed to sell them to defendant, and executed an assignment, and signed a receipt for the purchase-money, although it was not, in fact, paid: the bill was brought merely for the payment of the purchase-money. The defendant objected that there was no ground for the interference of Equity; but Sir J. Leach overruled the objection, on the ground that the purchaser might have filed a bill for specific performance, and "that "when a bill will lie for the purchaser it will for the vendor." Mr. Warren, Q. C., having, at the close of Mr. Maley's argument, commented on the authorities cited by him, The LORD CHANCELLOR directed the case to be spoken to by one Counsel for the plaintiff and accordingly, Mr. W. Brooke, Q. C., for the plaintiff, contended that the doctrine, that Courts of Equity will not decree specific performance of personal contracts, originated in the unwillingness of the Judges of that time to interfere in contracts respecting South Sea Stock. That the first and leading case on the subject-Cudd v. Rutter (g)—was a contract of that description; and that from the report of that case before Parker, C.(h), it appeared that the judgment rested not only on the existence of a remedy at law, but on the circumstance of the thing sold not having been in the vendor's possession, and on the fluctuations of the stock. That the doctrine in that case was acted on only in cases precisely similar; and and that the Courts were constantly struggling to escape from the rule there laid down, by establishing successive distinctions; and in addition to the cases cited by Mr. Maley, he referred on this point to Colt v. Netterville (a); Buxton v. Lyster (b); Nutbrown v. Thornton (c); Doloret v. Rothschild (d); Lynn v. Chaters (e); Kenny Wrexham (f). Mr. Brooke also argued that there was no remedy for the plaintiff at Law, as an annuity lies in grant; and no such thing as an annuity created by parol is known to the law; and in support of this position, referred to Blackstone's Commentaries (g); Comyn's Digest (h); In re Samuel Lock (i). The LORD CHANCELLOR this day delivered the following judgment: [After stating the prayer of the bill, the will of the Rev. G. Swift, the suit by Deane Swift, and the question in that suit]— Such was the state of things when Deane Swift died. The bill had not been effectually proceeded on; nor, on the other hand, had it been dismissed; the suit was still subsisting at the death of Deane Swift. It appears from the evidence of Godwin Swift, who was then the agent and trustee of the defendant, that the defendant had consulted him upon the subject of that claim, so that he had distinct knowledge of its existence; and from the same evidence, it appears that a case was submitted to Counsel on his behalf respecting it; and the eminent Counsel whom he consulted gave it as his opinion, that the claim was well founded to a certain extent. The evidence of Godwin Swift further shews, that a compromise took place between the plaintiff and the defendant; and that an agreement was entered into by the defendant, to grant an annuity of £40 to his aunt during their joint lives, in consideration of her relinquishing that claim. Now, whether that claim was valid or not, is perfectly immaterial. There was a claim subsisting, and a suit had been instituted for enforcing it; and whether it would have been ultimately established, or not, is perfectly immaterial in the consideration of the present case. That claim the plaintiff was entitled to in right of her deceased husband; and to enable her to release it effectually, it was necessary that she should prove her 1841. Chancery. SWIFT บ. SWIFT. Feb. 9. 1841. Chancery. SWIFT บ. SWIFT. husband's will. She did prove the will accordingly on the 8th of Janu- [Here his Lordship read the letter.] These are the terms of the undertaking on which the bill is founded; and in addition to this, a second letter was written by the defendant on the 8th of July 1828, to Godwin Swift, in whose possession these documents appear to have continued. The second letter has been relied on as making this annuity a charge on the land; and if it had done so, it would have concluded all question growing out of the existence of a remedy at Law; because, whenever an annuity is charged on land, I consider it perfectly settled, that the party is entitled to come into a Court of Equity for that which is the appropriate relief in such a case, namely, the appointment of a receiver. This relief is not prayed by the bill, nor is the letter put in issue-it comes out upon the evidence of Godwin Swift; but even if it were, it could not be considered as a grant of a rent-charge. That letter is merely intended as a direction to his agent, to be used for arranging their accounts in any settlement between them. The only way in which it is material is to shew that the defendant was aware of the annuity, and approved of the arrangement that had been made by G. Swift with the plaintiff. The annuity was paid up to November 1836, when the defendant settled accounts with G. Swift, and after that it continued to be paid until 1838. It is admitted that there was an arrear of four quarters due when the bill was filed. To this bill several defences have been set up. The first is a denial that the release had been ever executed by the plaintiff. The second is a denial that any compromise ever took place between the plaintiff and defendant. The third is a denial of the letter of the 12th January. The fourth is a denial that any thing could have been due on foot of the annuity devised to Deane Swift. The fifth is, that any annuity granted by the defendant was merely eleemosynary, and was given merely as a bounty to his relative, on account of her extreme poverty. In every one of those defences the defendant has totally failed-every one of them has been totally disproved; and now, at the hearing of the cause, the defence is, that the agreement was a mere personal contract, and cannot be enforced in Equity. The defendant seeks to be excused from the consequences of his unfounded defence, on the ground that he was mistaken as to the facts, and misled into a denial of the transaction by the statement in the bill, that the letter was mislaid. It is said that this was done with a design to entrap the defendant to contradict, in his answer, the statements in the bill; and I am called on to believe, that the advisers of this aged and penniless lady have deliberately stated this in the bill, in order to lay a snare for the defendant, and make him believe that the facts stated had no existence. I should be glad that the defendant's denial in this case arose from want of memory; but I cannot view that allegation as any ground for not visiting upon him the costs of a defence which is not only unproved, but is actually disproved in every point; and which, if not unrighteous, is, to say the least of it, most rash and ill considered. If, however, the contract between the parties be such, that adequate relief at Law can be obtained, as has been contended for by the Counsel for the defendant, I am bound to dismiss the bill. To their arguments I have given the greatest attention, and I have directed the case to be argued a second time, in order to give it the fullest consideration, and I have anxiously considered the case upon this point, lest, in my anxiety to give relief to the plaintiff, I may infringe upon the established principles of this Court. After thus giving to the case the fullest consideration that I am capable of, I have fully satisfied myself, that in doing justice to the plaintiff, I am not departing from the settled rules of Equity, or opposing any of the principles upon which the Court acts. A number of cases have been cited on both sides, and the result of them all is, not that wherever there is a remedy at Law, relief will be refused in Equity; but that when the relief at Law is equally beneficial and equally effectual with that which may be obtained in Equity, there the Court will refuse to interfere. Upon that ground where an annuity is charged on land, although there is a remedy at Law, yet as a Court of Equity alone can give the appropriate relief, by the appointment of a receiver, a bill for that purpose will be entertained. As to the cases upon personal contracts which have been cited in the course of the discussion, the one which appears to me to approach nearest the present in its circumstances, is the case of Brough v. Oddie. That, however, is clearly distinguishable from the present. The object of the bill there was to have an indemnity against a liability that had been incurred upon the guarantee of the defendant, and the observation of Sir J. Leach was, that "a personal contract was not an indemnity in the proper sense of that word," and that he knew of no case in which, where the contract had created a personal obligation the Court had ordered a party to give security for its performance. Now, whether that doctrine is sound or not, it is not necessary for me to decide. It is sufficient to say such is not the present case; the plaintiff here seeks not an indemnity against any contract she entered into, she seeks the performance of a personal contract entered into with her by the defendant, and the relief which she seeks is that which can be afforded her only in a Court of Equity, namely, the performance of that contract in its very terms by the defendant. 66 It is said she has a complete remedy at Law for the breach of this contract, and that, therefore, this Court should not interfere. Now, the remedy at Law could only be obtained in one of two ways, either by at once recovering 1841. Chancery. SWIFT V. SWIFT. |