where the mortgagor is poor and ignorant, especially if he is CHAP. XXXIII. without independent advice (a). And the same rule would apparently be applied even where the mortgaged interest is in possession (y). But in such cases a bargain will not be readily presumed to be unconscionable on account of inadequacy of consideration, unless it is clearly proved to be the result of fraud, surprise, or misrepresentation, or unless the inadequacy is so gross as of itself thereby to indicate fraud, so as to afford a ground for setting aside a mortgage (z). On the other hand, it has been held in several cases that it is not necessary for the mortgagor to prove that he was in actual penury at the time of the transaction (a). of Court expectancies. This interference of the Court was at first limited to dealings Interference with expectancies, or what is called post obit securities, which formerly the Court has always regarded with a jealous eye; and unless limited to the transaction has been a fair one, it has either restrained an action at law upon the securities (b), or set the bargain aside as unconscionable (c), or refused to carry it into execution, leaving the plaintiff to his remedy at law (d). The onus falls on the mortgagee to show that the bargain is provident (e). But where the bargain is a fair one, the Court will enforce an agreement which rests on a contingency, although the event has turned out favourable for the mortgagee or purchaser (f). And the debtor cannot invariably impeach the post obit security, though the money might have been raised on more moderate terms (g). Nor will the Court grant relief further than as against the penalty of a bond, where the debtor, after coming into possession, and being under no pressure, has chosen to confirm the bargain (). It is (x) Fry v. Lane, 40 Ch. D. 312. See James v. Kerr, 40 Ch. D. 449; Rae v. Joyce, 29 L. R. Ir. 500, C. A. (y) Fry v. Lane, sup., per Kay, J., at p. 322. (=) Gwynne v. Heaton, 1 Bro. C. C. 8; James v. Morgan, 1 Lev. 111; Stilwell v. Wilkins, Jac. 280; Rice v. Gordon, 11 Beav. 265; Haygarth v. Wearing, L. R. 12 Eq. 320. (a) Bromley v. Smith, 26 Beav. 644; Salter v. Bradshaw, 26 Beav. 161; St. Aubyn v. Harding, 27 Beav. 11; Foster v. Roberts, 29 Beav. 467; Emmet v. Tottenham, 10 Jur. N. S. 1090. (b) Marsack v. Reevers, 6 Madd. 108. Sir John Barnardiston v. Lingood, 2 Atk. 133; Wiseman v. Beake, 2 Vern. 121; Earl of Ardglasse v. Muschamp, 1 Vern. 237; Wharton v. May, 5 Ves. 27; Curling v. Marquis of Townsend, 19 (d) Johnson v. Nott, 1 Vern. 271. Davis v. Duke of Marlborough, 2 (f) Mortimer v. Capper, 1 Bro. C. C. (g) Curling v. Marquis of Townsend, 19 Ves. 628; Wharton v. May, 5 Ves. 27. (h) Lord Chesterfield v. Janssen, 2 Ves. Sen. 125. And see generally as to dealings with expectant heirs, the notes on this case in 1 Wh. & Tud. L. C. Eq. pp. 675 et seq.; Wharton v. May, 5 Ves. 27. CHAP. XXXIII. also to be remarked that dealings with expectancies, though liable to be set aside on the ground of fraud, were not within the Statutes of Usury, on account of the risk of the principal (h). Vested reversionary interests. Privity of father, &c. Life interest. How value ascertained. The same principle of relief was extended to sales of vested reversionary interests (). The doctrine not only includes the class who in a popular sense might be called "expectant heirs," but also all remaindermen and reversioners (k). Although a reversion which is expectant upon the failure of issue of a tenant for life is generally not capable of valuation (7), yet if such tenant for life be a female, who has been many years married without having issue, though not past the age of childbearing, it seems that the Court will, for the purposes of valuation, treat the interest expectant on her death without issue as a simple reversion (m). It was held in one case that although an expectant heir might be entitled to relief, he would lose such title if he acted in the matter with the privity of the father or other person standing in loco parentis, but in that case the heir had also, after repudiating the bargain, acted in such a manner as to alter the situation of the other party and his property (n). But the principle that the fact that dealings by an expectant heir are known to his father or other relative deprives the heir of his equity to relief is strongly dissented from by Lord St. Leonards (0). And it may now be regarded as settled that such knowledge, though material as tending to rebut the presumption of fraud or extortion (p), will not of itself prevent relief from being given in a proper case (7). The interest of a tenant for life, whose estate is subject to annuities and to interest upon mortgages, is not a reversionary interest within the scope of these considerations (»). Although a party dealing with an expectant heir must before the Sale of Reversions Act (s) have shown that he gave a fair (h) See note (h), ante, p. 613. () 1 Sug. V. & P. 14th ed. p. 285. (1) Baker v. Bent, 1 R. & My. 224. (n) Hamlet v. King, 3 Cl. & F. 218. (0) Sug. V. & P. 11th ed. p. 316. (P) O'Rorke v. Bolingbroke, 2 App. Cas. 814. (a) Talbot v. Stainforth, 1 J. & H. 484, 502; Savery v. King, 5 H. L. C. 627; Earl of Aylesford v. Morris, L. R. 8 Ch. A. 492; Miller v. Cook, L. R. 10 Eq. 641. (r) Webster v. Cook, L. R. 2 Ch. A. 542; questioned, Tyler v. Yates, L. R. 11 Eq. 276. (s) Infra, p. 615. price for his post obit securities, such value, where a valuation CHAP. XXXIII. is possible, was to be ascertained not by the tables of actuaries, but by the market price at the time of dealing, taking all the circumstances of health and age into account; and it was in the discretion of the Court to direct an inquiry if it had not sufficient information; and the case of Gowland v. De Faria (t), if it laid down any rule that the value must be ascertained by the tables (which is, however, denied), was so far overruled (u). Hence, a sale by auction of expectancies, or of securities thereon, was held good, that being evidence of the market price (x). In estimating the value of a contingent reversionary interest, the Court may admit evidence to show how far such value is affected by the remoteness of the contingency (y). The adequacy of the consideration is a matter for the Court to decide in each case, having regard to the circumstances of the particular transaction (). sions Act. By the Sale of Reversions Act (a), it is enacted that no pur- Sale of Reverchase, made bonâ fide and without fraud or unfair dealing of any reversionary interest in real or personal estate, shall hereafter be opened or set aside merely on the ground of undervalue; and the word "purchase" shall include every kind of contract, conveyance, or assignment under or by which any beneficial interest in any kind of property may be acquired. The Act came into operation on January 1, 1868, and does not apply to any purchase concerning which any suit was then depending. It is in other respects retrospective. Act. The law regarding setting aside unfair and unconscionable Effect of this bargains respecting reversionary interests remains the same as before the statute (b). The Act leaves undervalue still a material element in cases in which it is not the sole equitable ground for relief. These changes of the law have in no degree (t) Supra. (u) Lord Aldborough v. Trye, 7 Cl. & F. 436. And see Headen v. Bosher, M'Cl. & Y. 89; Potts v. Curtis, Y. 543; Baker v. Bent, 1 R. & My. 224. (x) Shelley v. Nash, 3 Madd. 232. (y) Baker v. Bent, 1, R. & My. 224; Davies v. Cooper, 5 My. & Cr. 270; Boothby v. Boothby, 1 Mac. & G. 604. (*) See and compare Nott v. Hill, 2 Ch. Ca. 121; Edwards v. Browne, 2 (b) Miller v. Cook, L. R. 10 Eq. sup. CHAP. XXXIII. whatever altered the onus probandi in those cases, which, according to the language of Lord Hardwicke (c), "raise from the circumstances or conditions of the parties contracting-weakness on one side, usury on the other, or extortion, or advantage taken of that weakness—a presumption of fraud. Fraud does not here mean deceit or circumvention; it means an unconscientious use of the power arising out of these circumstances and conditions; and when the relative position of the parties is such as primâ facie to raise this presumption, the transaction cannot stand, unless the person claiming the benefit of it is able to repel the presumption by contrary evidence, proving it to have been in point of fact fair, just, and reasonable” (d). Relief against assignee, with notice. Nature of relief. Interest. The burden of proof will, however, apparently be shifted, so far as undervalue is concerned, if the value of the property has been stated by the mortgagor in his proposals (e). In a case of setting aside for inadequacy of value a sale by a young man of a reversion, relief was refused, there being no fraud; but it was held by Lord Hatherley, that as a separate and independent adviser was not employed, the whole transaction must be opened (f). Relief may be granted as against an assignee of a mortgage with notice of fraud affecting the original transaction (9). The Court gives relief in cases of sales and mortgages of expectant and reversionary interests on the principle of redemption; the conveyance will stand as a security for principal and interest, and generally for costs also (h). Mortgages of reversionary interests stand on the same principle as sales (i); and the mortgagee is only entitled to the sum advanced with interest and costs as mortgagee (k). But compound interest is not given, however long the purchaser has been kept out of his money (1). (c) In Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125, at p. 157. (d) Per Lord Selborne in Earl of Aylesford v. Morris, L. R. 8 Ch. A. 484, at p. 490. See Fry v. Lane, 40 Ch. D. 312. (e) Perfect v. Lane, 3 De G. F. & J. 369. (f) O'Rorke v. Bolingbroke, 2 App. Cas. 814. (g) Addis v. Campbell, 4 Beav. 401; Savery v. King, 5 H. L. C. 627; Wright v. Vanderplank, 2 Jur. N. S. (h) Edwards v. Browne, 2 Coll. 100; Bawtree v. Watson, 3 My. & K. 339, 341; Hilliard v. Gambel, Taml. 375. See Sug. V. & P. 11th ed. p. 314; 14th ed. p. 277. But see Belcher v. Vardon, 2 Coll. 162. (i) Benyon v. Fitch, 35 Beav. 510; Emmet v. Tottenham, 10 Jur. N. S. 1090; Bromley v. Smith, 26 Beav. 644. (k) Re Slater's Trust, 11 Ch. D. 227 ; see Bowes v. Heaps, 3 V. & B. 117. (1) Gowland v. De Faria, 17 Ves. 20. Costs, though they will generally be allowed, are in the dis- CHAP. XXXIII. cretion of the Court (m). Costs. Accounts between borrower and lender relating to post-obit Accounts. bonds or mortgages of reversionary interests will not be treated as settled accounts (»). In a suit to set aside post-obit securities a receiver of the rents Receiver. of the estate would not usually be granted, on the motion of the defendant, if the principal money and interest were paid into Court (0). But where the whole security possessed by the party making the motion was contingent on the life of the borrower, and the lender had been out of his money for twenty years, the Court granted a receiver, notwithstanding an offer on the part of the plaintiff to pay principal and interest into Court (p). tion. A mortgagor may lose his right to relief against an uncon- Ratification scionable bargain by any act amounting to a formal confirma- of transaction of the transaction, as by executing a deed or will expressly or impliedly confirming the same (q); especially if in so doing he has acted under independent and competent advice (). He may also lose his right by any act which so alters the relation of the parties as to render it impossible for him to restore the consideration with interest and costs. So where goods were sold to a person in distressed circumstances by a tradesman; he knew that they were bought merely with a view to raise money by selling them again, and the goods were resold accordingly; the Court refused to set aside securities given for the price (s). The right to relief may also be lost by acquiescence for a considerable length of time (†). But confirmation or acquiescence will not deprive a person of his right to relief if, at the time of confirmation, or during the period of acquiescence, the borrower continues to be under the same pecuniary distress or pressure which forced him to enter into the original transaction (u). (m) Tyler v. Yates, L. R. 11 Eq. 265; see Twisleton v. Griffith, 1 P. Wms. 310; Bromley v. Smith, 26 Beav. 644, 676; Neville v. Snelling, 15 Ch. D. 679; Fry v. Lane, 40 Ch. D. 312; James v. Kerr, 40 Ch. D. 449. (n) Croft v. Graham, 2 De G. J. & S. 155; Tottenham v. Green, 1 N. R. 466. See further as to accounts between mortgagees and mortgagors, post, Chap. LIV. pp. 1137 et seq. (0) Curling v. Marquis of Townsend, 19 Ves. 628. (p) Free v. Hinde, 2 Sim. 7. (s) King v. Hamlet, 3 Cl. & F. 218. (t) Sibbering v. Earl of Balcarras, 3 De G. & S. 735; Addis v. Campbell, 4 Beav. 401; Lord v. Jeffkins, 35 Beav. 7; Turner v. Collins, L. R. 7 Ch. A. 329. See Gerrard v. O'Reilly, 3 Dr. & War. 414. (u) Gowland v. De Faria, 17 Ves. 20; Curwyn v. Milner, 3 P. Wms. |