Horton v Jones [1935] HCA 7

Horton v Jones [1935] HCA 7 - HCA 1935 case summary — Zoe

[23]

Sugerman and Mack, for the appellant. The promise was to leave the appellant by the deceased's will his interest in his father's estate and also his insurance policy and his other personal property. This was not a promise relating to an interest in land, and if it was, it was severable from the rest of the promise as to the insurance moneys and the other personal estate. This was not a disposition of land or of any interest in land within sec. 54a and sec. 7 of the Conveyancing Act 1919-1930. The contract is severable: there were two promises and two considerations, one relating to the deceased's interest in his father's estate, and the other to the insurance policy (De Lassalle v. Guildford (1) ; Angell v. Duke (2); Mayfield v. Wadsley (3) ; Wood v. Benson (4) ; Pickering vy. Ilfracombe Railway Co. (5) ). The modern rule is that where for one consideration there are two promises which can be severed, one good and one bad, the good promise can be enforced and the bad one cannot (Halsbury, Laws of England, 2nd ed., vol. 7, p. 135). There is no distinction between severability in relation to a void promise and severability in relation to an unenforceable promise (Anson's Law of Contract, 17th ed. (1929), p. 248). This was not a promise to demise an interest in land under sec. 54a of the Conveyancing Act 1919-1930. Even if the estate of A. T. Jones had been fully administered there is nothing to show that the assets of the children through whom G. P. Jones claimed had been fully administered, or that the estate of the children had been the subject of a grant of letters of administration. So far as appears from the evidence the only interest which the promisor had in the estate of his father was a right to approach the Court in its probate jurisdiction and obtain administration of the deceased's assets, and, having administered the estate, the right to whatever then remained. The right of G. P. Jones in the profits was not a right in rem or an interest in specific assets forming part of the estate of A. T. Jones unless it is shown that the estates of the children had been fully administered. The deceased's rights in the unadministered estate of his father were rights in personam, not rights in rem. It is only when the

[30]

Spender (with him Snelling), for the respondent. The agreement sued upon is a contract for a disposition of an interest in land within the meaning of sec. 54a of the Conveyancing Act. Where you have an entire contract that covers both realty and personalty, if it is bad as to the realty it is bad as to the personalty also. If a contract is entire, as this one is, you cannot sever the personalty from the realty so as to make it one thing qua realty and another thing qua personalty. It is the one contract and no other upon which the plaintiff is suing. The contract is one in respect of both realty and personalty. If it fails as to realty, it fails altogether. In Mayfield v. Wadsley (1) the evidence showed that there were two contracts. Here there is one contract. Wood v. Benson (2) shows only that there may be two contracts, and has no application here. That case also related toaguarantee. In Williams v. Burgess (3) there were two contracts. It is clear upon the evidence that there is only one enforceable contract, and it cannot be spelt out of the evidence that there are two contracts. Pickering v. Ilfracombe Railway Co. (4) deals with an entirely different aspect. The true test of severability is whether there is an independent contract (Cooke v. Tombs (5); Lea v. Barber (6); Hodgson v. Johnson (7); Hawkesworth v. Turner (8) ). Here there is an entire contract, and whether it contains two promises or not, it is one contract only and it comes within sec. 54a. For the contract to be divisible the consideration must be divisible. If there is one entire consideration the promise cannot be severable (Bentham v. Hardy (9); Halsbury, Laws of England, 2nd ed., vol. 7, p. 134; Winstone v. Mehaffy (10) ). The onus is on the plaintiff to establish that no part of the contract relates to land, or if it does, to prove an instrument in writing containing all the terms. The statute applies if there is some interest in land involved. It need not be any specific or ascertainable interest (Toppin v. Lomas (11); Driver v. Broad (12); Miller vy. Collins (13); In re Watts ;

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upon a contract by their testator that he would make a will in her favour leaving her so much of his father's estate as he had power to dispose of and the proceeds of the policies of insurance upon his life. The consideration on her part for this contract she alleged to be a promise by her to enter his service and to act as secretary. housekeeper and nurse to him without wages for the remainder of his life and, so entering into his service and if and when requested by him, to cease carrying on the business in which she was then engaged. She alleged performance of her promise. The estate of the deceased's father to which the count refers included investments upon first mortgage of real property. The contract set up by the plaintiff was not evidenced by writing, and the judgment of the Supreme Court proceeded upon the ground that, in the absence of writing, she could not recover upon the count because the deceased's disposable interest in his father's estate having regard to its state of investment included an interest in land. The correctness of this view was contested upon this appeal by the plaintiff who is the appellant. To take the case out of the operation of sec, 544 of the Conveyancing Act 1919-1930, in which the relevant portion of the Statute of Frauds is embodied, the plaintiff relies upon various grounds. The first reason given is that even if the estate of the deceased's father included at the time of the making of the contract investments upon mortgage, yet the interest of the deceased himself in that estate was not an interest in land. Next, it was said that it did not appear upon the evidence that the estate did then include investments upon mortgage. It was contended further that, inasmuch as when the alleged contract might come to be performed the estate might not be so invested, the contract was not hit by the enactment. If the contract so far as it related to the deceased's interest in his father's estate was held to affect an interest in land, it was said that nevertheless so much of it as related to the insurance policies need not be evidenced by writing because it was separable. Finally, it was claimed that the contract in relation to the policies was a collateral agreement made in consideration of the plaintiff's entering into the main agreement.

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(3); In re Dawson; Pattisson v. Bathurst (4) ). But this does not completely dispose of the question whether the alleged contract falls within sec. 54a and amounts to a contract for the sale or other disposition of land. For, although the deceased's interest in his father's estate might or did at the time of the making of the alleged agreement amount to or include an interest in land, this arose only from its state of investment, which from the point of view of the contracting parties was a mere accident. When the deceased came to fulfil his promise it might no longer be so invested. The contract was to leave that interest whatever form it might take or happen to be in. Indeed, it may be said that the substance of the contract was to leave to the plaintiff whatever the deceased might have at his death representing that interest, and his life insurance policies. We think that these considerations do not take the contract set up out of the Statute of Frauds. The contract is to leave property by will whatever form it may be in. At the time of contracting, it involved an interest in land. It is therefore a contract to leave that interest or the proceeds thereof if thereafter called in and invested in some other form of security or distributed. It appears to us that this is a contract which relates to an identifiable asset or assets which have the character of an interest in land, although consistently with the contract and before its performance is.complete, they may have lost that character. Such a contract at its inception relates to an interest in land and promises a disposition of that interest or its proceeds. The alternative expressed in the words " or its proceeds " does not make the contract fail to answer the description of sec, 544. That provision has, we think, substan- tially the same effect. as the Statute of Frauds so far as it related to interests in land. We cannot agree in the construction of the curiously drawn definition of " disposition" in sec. 7 of the Con- veyancing Act 1919-1930 which excludes disposition by will.

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"He said ' Will you promise to think it over; will you come out with me to-morrow night,' I said 'No, I cannot promise you that' and then I said 'Really, I must go now, as the telephone is ringing.' He said ' Well, anyway, I will bring the car round to-morrow night, and you can let me know then.' 'The next night he brought his car round ; and I had promised to go out with someone else, but they had not rung me up, so I went out with him in the car and we discussed it more fully. I then said to him, ' Oh well, you promised to leave me your fortune if I gave up everything and made a home for you, but I am used to having money of my own to spend. What would I do about money for expenses, money for clothes and so on, Certainly I have plenty of clothes, but shoes and stockings wear out. Would you give me an allowance, because T will have to have some money. | I am used to spending a fair amount of money. I am used to running a car, and I am used to dressing well.' He said 'Oh well, you leave it to me and I will treat you properly and see that you do not want for anything.' He said ' Before I met you I met a doctor's widow, and I put the proposition to her.' He said 'She said she would think it over,' but she asked me to pay £500 for a residential for her, and suggested that I should go and live there, He said 'I thought it looked a bit too much like blackmail, so I made an appointment to go and see her the next night and talk it over, but I never went.' He said ' You leave it to me; I will treat you properly. You will not have to work, and you will find that I will give you whatever money is necessary. You will be able to drive your car, and in fact you will really not know how to put in your time. I will provide for you, and give you everything you want for out-of-pocket expenses," but still he would not give me a definite promise that he would give me a dress allowance, but I did not press the point then. No definite arrangement was made that night. The next night he came to see me again and asked for my answer. In the mean-time I had discussed it with my mother and my brother, and I went to see my married sister at Lavender Bay (objected to). I had a talk to my mother, brother and somebody else. He came again the following night and I accepted his offer. He asked me had I thought it over and I said * Yes,' that I had thought it over, and he said 'Well, have you decided to accept

At a glance

Court

Decision date

Before

Source

Judgment (91 paragraphs)

Cited By (7)