2

Gordon v. Gordon, 3 Swans. 463.

Stapilton v. 2; Cann v. Stapilton, 1 Atk.

Cann, 1 P. W.

723.

3 Gordon v.

ever, of these principles, there is one memorable exception, which has been thus stated1: "In regard to family arrangements, -which have been fairly entered into, without concealment or imposition or either side,—with no suppression of what is true, or suggestion of what is false, then, although the parties may have greatly misunderstood their situation, and mistaken their rights, it is fully established that a court of equity will not disturb the quiet which is the consequence of that agreement 2; but when the transaction has been unfair, and founded upon falsehood and misrepresentation, a court of equity will have great difficulty in permitting such a contract to bind the parties." On these principles, an agreement between two brothers, the younger of whom disputed the legitimacy of the elder, for a division of the family estates, was rescinded after a lapse of nineteen years; the legitimacy of the elder being established on the trial of an issue directed, and the younger brother having been apprized, at the time of the agreement, of a private ceremony of marriage which had passed between their parents, and not having communicated that fact to the elder, and not possessing a legal power on the supposition of the elder brother's illegitimacy to secure to him the benefits stipulated in the agreement 3. In a more recent case, A. and B. having an apparent title to copyhold Gordon, 3 lands as tenants in common in fee, under the will of their father, entered into a parol agreement to make partition of the devised lands, and divided them accordingly, --A., the elder brother, taking somewhat the larger share, a doubt being then entertained whether their father had a right to devise the lands. A. was, in fact, at the time of this agreement, tenant in tail under the limitations of a surrender made by their grandfather; and, after A.'s death without issue, B., having discovered his own title as tenant in tail, repudiated the agreement, and brought ejectment to recover the whole estate; but, on a bill filed by the devisee of A., the court, upon the principle on which it supports family arrangements, decreed B. to do all necessary acts to bar the entail, and vest the parts of the lands, allotted under the agreement to A., upon the trusts of A.'s will. So, where a 'Neale v.Neale, person agreed to give up his claim to property in favour of another, such a renunciation will not be supported, if, at the time of making it, he was ignorant of his legal rights, and of the value of the property renounced, especially if the party with whom he dealt possessed and kept back from him better informa

Swans. 400.

1 Kee. 672.

1 M'Carthy v. Decaix, 2 Russ. & My. 614; and see Clifton v. Cockburn,

3 My. & K. 76. * Grove v. Perkins, 6 Sim.576.

3 Harvey v.

Cooke, 4 Russ. 34.

tion on the subject1. On this principle2, a wife, who had been deserted by her husband, having become entitled to a share of an intestate's property, the husband, whilst he was ignorant of the amount of the share, joined in an assignment of it in trust for his wife and children, subject to a small weekly payment to himself. The deed, although it recited that the intestate's estate was very considerable, yet, as the administrators, who were the wife's brothers and parties to the transaction, did not disclose to the husband the amount of the share, was, notwithstanding its character of a family arrangement, set aside. It may lastly be observed, that a transaction cannot be considered as a family arrangement, where the doubts existing as to the rights alleged are not presented to the mind of the party interested3.

On the execution of a deed by the grantor, the estate, which it affects to convey, is immediately vested in the grantee. If he do not choose to accept the estate so conveyed to and vested in him, the proper and direct mode of divesting himself of it will be by a re-conveyance. In many cases, however, we find it stated, that he may get rid of it by mere disclaimer. It will be fit, therefore, that we should consider what this disclaimer is, and how far it dispenses with the necessity for a re-conveyance. It may also be observed, in considering the effect of a deed, that though, generally speaking, it operates only to the extent of the grantor's estate at the time of conveyance; yet there are cases where, under the doctrine of estoppel, it operates beyond that, and though affecting only to bind his present estate, will, in point of fact, under the doctrine of estoppel, bind that estate, although it be only subsequently acquired by him. To this subject also we must, therefore, address a few paragraphs.

1. Of Disclaimer.]-A deed, where it operates as a conveyance, immediately on its being executed by the granting party, divests the estate out of him, and vests it in the party to whom the conveyance is made, though executed in his absence and without his knowledge. If it happen that the estate so conveyed is a damnosa hæreditas, the grantee would, of course, be desirous of

repudiating the conveyance, and of divesting himself of the estate so conveyed to him; and very curious questions have arisen as to the means by which this may be effected. The questions have been, whether a reconveyance be necessary? Whether a disclaimer, which is merely a renunciation of the grantee's estate, will be sufficient? And, whether a disclaimer must be by deed, or whether a parol disclaimer be sufficient? There is another species of disclaimer, namely, disclaimer in a Court of Record. This is frequently resorted to in proceedings in equity, but it rarely occurs at law; nor is it very obvious how it could there be carried into effect. "It certainly could not be done," observed Abbott, C. J., on one occasion1, "unless some other person had thought Tickell, 3 B. & fit to cite him there to receive the disclaimer; and if the estate were a damnosa hæreditas, that would not be likely to happen."

1 Townson v.

Ald. 31.

As to disclaimer by parol, it seems at least very doubtful whether it could be so made, where the property has once vested. In considering the cases in which it has been said that the disclaimer may be by parol, we shall see that it has occurred only where writing was not necessary to the transfer, or where, in point of fact, no estate had passed. Thus, it has been laid down, that a gift of personal chattels may be avoided and waived by parol: this is consistent with reason and the known principles of our law. As a gift of personal chattels may be made without deed or writing, it may, according to a well-known maxim, be repudiated or disclaimed without deed or writing—that is to say, by parol. It is also said, that a lease for years may be disclaimed by parol; and Smith v. Wheeler2 is cited for the Vent. 128. purpose of supporting the proposition. There a person possessed

of a term of years assigned it upon certain trusts to A. and B., of whom B. dissented; and Lord Hale said, "A. is a good lessor, for the other trustee's disagreement makes it wholly his." Lord Eldon observes on this:-" The case in Ventris is an assignment of a lease to two persons, one of whom expresses his dissent; but if we consider the difficulty attending conveyances to uses, I think we shall be compelled to say, that Lord Hale's doctrine will not apply; and that the party cannot disclaim in the case of a conveyance to uses, except by a release with intent to disclaim. I am aware, however, that, from the practice of conveyancers, if I were to say that on any difficulty in principle a disclaimer could not be effectual, I should shake titles innumerable 3." The difficulty here adverted to, arises from the fact, that, in conveyances

3 Nicholson v. Wordsworth, 2 Swans. 365.

'The King v. Wilson, 10 B. & C. 80.

26 B. & C. 116.

operating under the statute, the legal estate is immediately executed in the cestui que use by force of its provisions, without his consent or concurrence.

A devise of copyholds may be disclaimed by word of mouth. only 1. This also is consistent with the reason of the thing; for, in regard to copyholds, it is to be observed that the transfer is by surrender and admittance, that the surrender, whatever may be its form, is in point of fact nothing more than a direction to the lord to admit a certain specified person,—and that nothing passes to that person till admittance. As nothing passes by the surrender to the surrenderee, there is nothing for him to disclaim: and the intended benefit he may therefore accept or refuse at his discretion: no act is necessary to be done on his part, he has simply to decline being admitted, and there is an end of the matter. In such a case, therefore, it may be said that the disclaimer, if such a word be applicable, may be by parol. It must, however, be carefully borne in mind what is the real operation of the surrender, that no estate passes by it,—that it is a mere direction to the lord of the manor whom he is to admit.

Let us now proceed to consider the operation of a will. As to personal property, the effect of it is that the legal estate vests in the executor, if he prove: by declining to take out probate it is competent for him to prevent its so vesting; and such an act would be tantamount to a parol disclaimer. In regard to legatees, they take nothing till the executor has assented; after his assent they take the legal interest. As the assent may be by parol, so also may the refusal of the legatee to accept the legacy be by parol. The legatee may, therefore, by parol disclaimer, divest himself of the testator's intended bounty. Now, from considering the bequest of personal estate, let us pass to the consideration of the effect of a devise of real estate; and here we shall find that different principles apply. In this case the gift is not intercepted, as in the case of a legacy by the interposition of the executor, but it takes effect immediately in the devisee. As a devise can only be in writing, it would seem primâ facie that it could only be repudiated in writing, and that the devised estate could not be divested by mere parol. The point has never been expressly decided; but from the language of Abbott, C. J., in Doe v. Smyth 2, this may be inferred to have been the opinion of this able lawyer: "It is clear," said his Lordship, "that a devised interest vests in the devisee by presumption of law be

It

3

Townson v. Tickell, 3 B. &

Ald. 31.

Stacey v.

K. 195.

fore entry1. It may be admitted that a devisee cannot be com- 'Ca Litt. 111. a. pelled to accept the devised interest, but may by some mode renounce and disclaim it; and that, upon such renunciation or disclaimer, it will descend to the heir or pass to a remainderman. And it is not necessary, in the present case, to decide whether such renunciation and disclaimer may be by parol; because, in whatever form they are made, we think they must be a clear and unequivocal disclaimer of any estate in the land.” has been decided that a disclaimer by a deed is sufficient 2. As, however, a deed is not necessary to the validity of a devise, but only a writing, signed and attested in a particular manner, it would seem also to follow that a deed is not necessary to divest a devised estate, but that a mere memorandum in writing would be sufficient for the purpose,-in other words, any disclaimer in writing; and it has even been determined that a disclaimer may be inferred from conduct alone, without either deed or writing3. From these considerations the passage is easy to the effect of Elph, 1 My. & a feoffment. By the operation of the feoffment the estate passes immediately to the feoffee. On principle the estate can only be divested out of the feoffee by an assurance of the same or tantamount solemnity; authority brings us very nearly up to this point, for it has been decided that it cannot be waived by mere parol. Thus, in an old case, a charter of feoffment was made to Fitz. Abr. four, and after livery of seisin to three in the name of all, the Jointenancy, pl. 9. fourth saw the deed, and said by parol that he would have nothing in the land, nor agree to the deed, but disagree: and after a special verdict in assize pending the matter, it was adjudged that the writ brought by the three should abate, inasmuch as this disagreement by word in pais could not divest the freehold out of him. Upon this decision it has been assumed, that a disclaimer of record would be necessary, and would be sufficient. A disclaimer in writing, whether under hand and seal or not, can scarcely be more operative since the Statute of Frauds than a parol disclaimer was previously. It seems to follow, therefore, that the feoffee can only divest himself of the estate by an actual conveyance. The same reasoning that applies to a feoffment applies to any other assurance, operating as an actual transfer of the possession; to a conveyance, therefore, of freehold by lease and release, or to a bargain and sale enrolled.

2. Of Estoppel.]—Where a party executes a deed, it is a principle of our law, that he shall not be allowed to make any averent contrary to it,-in other words, that he shall be estopped