Anning v Anning [1907] HCA 13

Anning v Anning [1907] HCA 13 - HCA 1907 case summary — Zoe

[47]

was intended to take effect as a deed inter vivos or as a donatio mortis causd, and A, H. Simpson, Chief Judge in Equity, upon the evidence before him took the latter view, but held that the attempted gift failed to take effect in consequence of want of delivery of possession. 7 Upon the hearing of the present action before Cooper C.J. on - oral evidence, that learned Judge came to a different conclusion . on the facts, and held that the deed was intended to operate as _ an immediate irrevocable gift. This finding of fact is not : challenged, nor is it suggested that the decision of the Supreme Court of New South Wales concludes the matter as res judicata, The question for our determination, therefore, is how far the deed was effectual to pass the property in the personal estate of 7 the donor. s The whole law on the subject is contained in the judgment of 4 Turner LJ. in Milroy v. Lord (1): - *1 take the law of this - Court to be well settled, that, in order to render a voluntary : settlement valid and effectual, the settlor must have done every- thing which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he trans- fers the property toa trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes ; and if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol; but, in order to render the settlement binding, one or other of these modes must, as I under- stand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imperfect gift. The cases I think go further to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the Court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust,

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of assignment to the bank as debtor that it is impossible to reg them as the requisite notice. I do not find it necessary to deter. mine whether in any case the production of such a document - would satisfy the requirements of the Statute as to notice. I feel constrained, therefore, to hold that as to the money in the bank the gift was and is imperfect as a gift: and next that there is now no power by notice under the Act to make the intended donation complete, and further that equity cannot be invoked to assist the intended donees. If there were nothing more in the matter they would fail. And if the assignment were not under seal there would be nothing more possible to effectuate the - intended gift. 3 But there is another line of approach to this branch of the present case which, in my opinion, affords a means of giving a legal effect to the undoubted intention of the donor. There must always be a desire on the part of any Court, if it can possibly see its way to do so in accordance with law, to carry out the real wishes of an intending donor, more particularly under circum: stances as are presented in this case. It is at the least "a debt of honour," and the Court has, in exercising its jurisdiction over the property of a lunatic, given effect even to an incomplete gift. of a large sum of money because it thought it was a debt of honour which ought to be recognized if with justice it could be. See In 're Whitaker (1), which was a gift by way of promissory note, and Cotton L.J. referred to the fact that at law no action could lie. So in the cases of intended grants Courts of law have not hesitated to imply covenants on the part of a grantor who had assigned choses in action by deed to the effect that he would do nothing to derogate from his deed. In In re Patrick (2 Lindley LJ. referred to decisions at law which showed "that the assignor of a debt is liable to be sued at law by the assignee, if the assignor himself defeats his own assignment by getting in 0 releasing the debt assigned" ; namely Gerard vy. Lewis (3), @ Aulton y. Atkins (4). Reference to those cases seems to bear out entirely the view expressed by Lindley LJ. Aulton vy. Atkins (4) was an action in which the plaintiff sue

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the defendant under the following circumstances. The defendant H- C. or A. and one Leedham were lace manufacturers in co-partnership, and ee they sold and by deed assigned to the plaintiffs all the co-partner- - aysixi ship debts, money, personal estate, effects, and property. The ch partnership held a bill of exchange for £130 as part of the assets payable to the defendant's order. After the assignment the defendant parted with the possession of the bill of exchange and thereby prevented the plaintiffs from obtaining the money. The declaration averred this parting with the possession of the bill of exchange as a breach of an implied covenant of the indenture, and it also contained a count for conversion of the bill of exchange. The defendant demurred to the first count which alleged this breach of an implied covenant. The ground of demurrer is worth quoting in full. It was: - *'That the said indenture did not operate as a legal assignment of the debt and bill of exchange mentioned in the first and second breaches, the same being choses in action, and the debt not being at law assignable, and the bill only being at law assignable by indorsement; and that the matters sued for were matters of partnership account, which could not be investigated at law; and that the first and second breaches showed no covenant or legal obligation by the defendant to pay the alleged sum, or transfer the alleged bill to the plain- tiffs." It was argued in support of the demurrer that the deed was only a conveyance of certain property, that it was not a deed of covenant, that no covenant could be implied, and that the bill of exchange was only assigned by indorsement. These arguments did not prevail. The Court held that there was an implied covenant on the part of the defendant not to do anything in derogation of his deed; it also held that he did something in derogation of his deed when he parted with the possession of the bill of exchange in such manner and on such terms as to incap- acitate himself, and thereby to prevent the plaintiffs from acquiring or having any right or title to the money therein specified. Gerard y. Lewis (1) was a case in which the defendant and another, who were shipbrokers in partnership, assigned the debts owing to them to the plaintiff, with the securities for the same, and full power in the names of the assignees and authority to sue (1) LR. 2C.P., 305.

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But it is said that in Courts of Equity a legal chose in action has always been treated as assignable. This is true, with limita- tions. Courts of Equity gave effect to contracts for the assign- ment of legal choses in action; but the contracts, from their very nature, were for valuable consideration. In the ease of this deed there was no valuable consideration; there is not even mention of any " meritorious" consideration, such as love and affection for the family. But Courts of Equity, in their anxiety to give effect to intentions of persons owning property, have gone even further. Although the Courts of Equity do not aid incomplete voluntary gifts - do not compel a donor (or his representatives) to make complete a gift which he has left incomplete - yet if the legal title is not vested in the donor, is for instance outstanding in a trustee, and if the donor exeeute a deed purporting to assign his interest to a donee, the Courts will treat the gift as effectual, and insist on fulfilment. They treat the trustee as being under an obligation henceforth to hold on trust for the donee, as he had been for the donor. In such a case the assignor has done all that in him lies to divest himself of his property in the asset. The position is like that in the case of a mere equitable chose in action, and nothing remains that the donor can do personally. These exceptions to the general rule that equity will not interfere so as to compel completion of voluntary gifts have to be scanned closely before they are applied, in order that the existing con- fusion as to the subject may not be still worse confounded. The question here is, as to the deposit receipts, and money on current account, do they pass to the wife and children by virtue of a mere deed without valuable consideration, and without transfer of the deposit receipts, or other indicia of title? I shall deal with this question, (1) as if the Judicutwre Act 1876, sec. 5 (6), had not been passed ; and (2) having regard to the provisions of that Act.

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the theory was, that a man who forms an intention to make a gift is under no conscientious or other obligation to complete the gift. "There is a locus penitentiv, as long as it is incomplete"; _ Antrobus vy. Smith (1). The owner may alter his intention before the gift be actually completed ; and equity would not com- - pel him to complete it. In the present case, the intending donor did not enable the donees to receive the money from the bank. He did not hand over the deposit receipt for presentation to the bank; he did not give the donees any power of attorney to re- _ ceive the money or to sue the bank; and he did not even hand over the deed to any of the donees, but to his station manager, Geldring. Nor did Anning in any way deprive himself of the power to receive the money himself, for as he kept the deposit receipts - he could produce them and claim payment. I shall refer to the cases presently. As for (2), the effect of the Judicature Act, it is clear that he could, ever since that Act, have made use of the provisions of that Act, so as to vest the legal title to these deposits in the donees, but he did not do so. He could have given notice, or caused notice to be given, to the bank of the assignment, and this would have operated as a complete legal transfer of the debts, but he failed to do so. He did not do everything that was in his power at the time to make the gift complete, and equity, therefore, would not compel the completion of the gift. If it be urged that see. 5 (6) of the Judicature Act does not alter substantive rights, but merely gives an additional remedy, that is probably true. But the remedy is there, and the fact that the remedy is there, and has not been made use of, may indirectly affect the position of those who claim under deeds of gift. It is quite true that Lord Macnaghten has shown, in William Brant's Sons & Co. v. Dunlop Rubber Co. (2) that the power to make an equitable assignment still remains, notwith- standing the Judicature Act and its provisions as to assignments. The two modes of assignment exist, side by side. But what I am submitting is that the time-honoured rules as to equitable assignments should be applied ; and that, according to these rules, there can be no equitable assignment if the donor has failed to (1) 12 Ves., 39, at p. 46. (2) (1905) A.C., 454.

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Judgment (203 paragraphs)