coming here; but a mere volunteer is not entitled to come here for an execu-
tion of an agreement. But here is a proper consideration, as appears in the
recital of the deed of 1724. Neither is it the common case of a bastard; for
the law of England docs allow of some privileges to a bastard eigne, and their
parents are not punishable by the canon law for antenuptial fornication.
In the case of Cann v. Cann, 1 it was laid down by Lord Macclesfield, that
an agreement, entered into upon a supposition of a right, or of a doubtful
right, though it after comes out that the right was on the other side, shall be
binding, and the right shall not prevail against the agreement of the parties •
for the right must always be on one side or the other ; and therefore the com-
promise of a doubtful right is a sufficient foundation of an agreement.
Another objection has been made to this agreement, that the benefit on
Henry's and Philip's side was not mutual and equal. During both their lives,
the benefit and obligation was mutual, and Henry would have been equally
compellable to suffer a recovery with Philip. But it is said, that an alteration
as to their mutual benefit has happened by the death of Henry; and it is said,
that if Henry had been legitimate, the plaintiff would not have been compel-
1 1 P. Wms. 723, 727.
388 COMPROMISE. — SEPARATE MAINTENANCE.
lable to suffer a recovery, because the issue in tail is not compellable to per-
form the covenants of his ancestor, the tenant in tail. But here, the chance
was at first equal; and it is hard to say, that the act of Grod should hinder the
agreement from being carried *into execution ; the chance was equal,
f- -' who died first, Henry or Philip ? If Henry had been legitimate, and
Philip had died in Henry's life, leaving children, I am of opinion Philip's son
would have been entitled to have come against Henry for an execution of the
agreement ; and therefore the chance was at first equal on both sides, and we
are not to consider how the event has happened.
Another objection has been taken, that the father made use of his coercive
power over Philip, to force him into this agreement ; and it is said equity
does not favor agreements made by compulsion. But this Court always
considers the reasonableness of the agreement ; besides, here is no proof of
compulsion by the father : if there was any compulsion, it seems rather to
have been made use of against Henry, who was then esteemed his eldest son ;
and, considering the consequence of setting aside this agreement, a court of
equity will be glad to lay hold of any just ground to carry it into execution,
and to establish the peace of a family.
His Lordship, therefore, declared, that the plaintiff is entitled to the lands
and premises limited in remainder, to the first son of Henry Stapilton, his
father, by the deeds of the 9th and 10th of September, 1724, according to
the uses therein, and to the benefit of the covenants in those deeds, and de-
creed the defendant Philip to come to an account for the rents of the said
premises; and declared that Philip was entitled to hold the lands, limited by
the deeds of the 9th and 10th of September, 1724, to Philip the elder for
life, with remainder to the defendant for life, against the plaintiff and his
heirs ; and that the defendant should make further assurance to the plaintiff
of his part, and the plaintiff the like assurance to the defendant of his part,
and no costs on either side.
" From the case of Stapilton v. Stapilton," observes Lord Chancellor Sug-
den, "down to the present day, the current of authorities has been uniform,
and wherever doubts and disputes have arisen with regard to the rights of
different members of the same family *(and especially, I may observe,
L -I where those doubts have related to a question of legitimacy,) and
fair compromises have been entered into to preserve the harmony and affec-
tion, or to save the honor of the family, those arrangements have been sus-
tained by this Court, albeit, perhaps, resting upon grounds which would not
have been considered satisfactory, if the transaction had occurred between
mere strangers Generally, if there be a legitimate and an illegiti-
mate son, it cannot admit of any doubt, that, under the state of circumstances
involving the honor and credit of a family, there may be a compromise bind-
ing upon the legitimate son, by which he agrees to give up a particular part
of the property to his illegitimate brother ; and that, not, of course, upon any
STAPILTON V. STAPILTON. 389
title in the illegitimate son, but simply upon the ground that such an arrange-
ment was for the honor of the family, and the settlement of family differ-
ences, and to avoid any question of legitimacy :" Wesiby v. Westby, 2 D. &
War. 503. In that case, which proceeded on precisely the same principles as
Stapilton v. Stapilton, A. was entitled to an estate in remainder, in Black-
acre, expectant upon the decease of his uncle B. without male issue, and had
also a remote interest in Whiteacre, expectant upon the same event. B. was
twice married ; by his first wife he had issue only two daughters ; by his
second, who was sister of Ms first wife, he had issue both sons and daughters.
Under these circumstances, in 1817, A. threatened and attempted to institute
proceedings of a civil character in the Ecclesiastical Court against B. and his
second wife, for the purpose of annulling their marriage, and rendering their
issue illegitimate. A compromise was proposed, and after much deliberation
carried into effect by articles of agreement. By these articles, B. agreed to
secure certain provisions for the female issue of A. ; and in consideration
thereof, A. covenanted not to impeach B.'s second marriage. The articles
also contained a proviso, that, in the event of the successful impeachment of
B.'s marriage by any person, all the agreements of the articles should be void.
In 1838, B. died, and his marriage was never disturbed. On a bill filed by
his executor and his eldest son, to set aside the compromise of 1817, it was
held, by Lord Chancellor Sugden, that the transaction was a fair family ar-
rangement, neither inconsistent with public policy nor the principles of the
Court, and the bill was dismissed with costs. And see Stockley v. Stockley,
(1 V. & B. 30,) where Lord Eldon, after noticing Fallen v. Ready, (2 Atk.
587,) and Cory v. Cory, (1 Ves. 19,) said that those cases and Stapilton v.
Stapilton, which, with all the able reasoning in it, was an extremely strong
*case, led him to the opinion, that, in family arrangements, the Court
did not quite go the length of denying relief upon the principle that *- J
prevailed between strangers.
It is proposed in this note to examine the cases in which courts of equity
will give effect to transactions based upon the compromise of conflicting claims,
and to point out how much more readily, and to how much greater an extent,
such transactions will be supported, when they either are, or partake of the
nature of, family arrangements.
The compromises of doubtful claims, whatever may be the actual rights of
the parties, have, from the policy of preventing litigation, been generally up-
held in all enlightened systems of jurisprudence. For the authorities of the
civil law upon this subject, see 3 Burge's Comm. 742. So, in the law of
Scotland, compromises, under the name of transactions, are equally favored.
Thus, Lord Stair, in treating on Restitution, lays it down, " that positive law,
for utility and quietness' sake, excepteth transactions which are properly such,
and which are of two sorts, the one extrajudicial, when, in any matter doubt-
ful and debateable, either party, to shun the hazard and trouble of a legal
decision, is willing to transact and agree, so as thereby they quit or abate part
of what they claim as their right, and so they tacitly renounce all future ques-
390 COMPROMISE. — SEPARATE MAINTENANCE.
tion upon any appearing of right, either judicially or extrajudicially; and
therefore what either quitteth to other of their rights is done for the same
cause and hath in it, either expressly or implicitly, that such transaction shall
not be retracted upon anything that shall accidentally appear thereafter, fraud
and force only (as the common exception in all human actions) being ex-
cepted :" Stair's Inst. tit. 7, s. 9 ; Hotchkin v. Dickson, 2 Bligh. 348 ; Stew-
arty. Stewart, 6 C. & F. 911.
With regard to our law, it is clear that if a person, after due deliberation,
enter into an agreement for the purpose of compromising a claim made bona
fide, to which he believes himself to be liable, and with the nature and extent
of which he is fully acquainted, the compromise of such a claim is a sufficient
consideration for the agreement, and a court of equity, without inquiring
whether he was in truth liable to the claim, will compel a specific performance :
Attwood v. , 1 Kuss. 353 ; Pickering v. Pickering, 2 Beav. 56. Nor
can the Court inquire into the supposed adequacy or inadequacy of the con-
sideration. " Where," asks Sir John Leach, V. C, " is it to find a scale for
determining the true measure of adequacy ? If a Court is in such a case to
be governed by its judicial opinion upon the rights of the parties, then, to
him who by that opinion is held to be ^entitled to the whole property,
L J no consideration can be really adequate which is less than the whole,
and no compromise can ever bind the successful claimant. It is for this rea-
son, and because I consider it to be wholly immaterial for the purpose of de-
ciding upon the validity of the deed of compromise, that I do not give any
opinion upon the arguments by which the counsel for the plaintiff assert her
claim to the perpetual annuity. It is enough to support this deed, that there
was a doubtful question and a compromise fairly and deliberately made upon
consideration ; and the actual rights of the parties, whatever they might be,
cannot affect the question." Per Sir J. Leach, V. C, in Naylor v. Winch,
1 S. & S. 565.
A distinction has been taken between an error of law and an error of fact.
"It is a maxim of equity," says an eminent Judge, "that parties making a
mistake in matters of fact shall not be held bound by acts committed by them
under such mistake. When, however, they make a mistake in law, they
cannot afterwards be heard to say, that the contract shall on that account be
set aside:" Marshall v. Collett, 1 Y. & C. Exch. Ca. 238.
It is not intended here to examine with any minuteness the nice distinctions
which undoubtedly exist as to the effect of a mistake of law or fact in ordi-
nary dealings or agreements. It seems, however, that ignorance, whether of
fact or law, if the fact or law be doubtful, and the ignorance of it is common
to all parties, especially in cases of family arrangements, will not vitiate a
compromise. For instance, the question, whether a person is heir or not, is
a/act, or, at any rate, often depends upon a doubtful fact, whether a marriage
has or has not been celebrated ; nevertheless, it is clear, that if, as in the
principal case, that fact be doubtful, two claimants, although one of them is
afterwards clearly proved to be heir, may settle all disputes, especially to save
STAPILTON V. STAPILTON. 391
the honor of the family, by dividing the property." Another case may be
mentioned, in which the parties entering into a compromise appear to have
been ignorant of a fact, namely, of the existence of a deed ; nevertheless, the
compromise was sustained. In Neale v. Male, (1 Keen, 672,) James Neale
and Joseph Neale, having an apparent title to copyhold 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, James,
the elder brother, taking somewhat the larger share, a doubt being then en-
tertained, whether their father had a right to devise the lands. James was,
in fact, at the time of this agreement, tenant in tail under the limitations of
a surrender made by his grandfather; *aud, after James's death with- r*/>qrn
out issue, Joseph, having discovered his own title as tenant in tail, L
fepudiated the agreement, and brought an action to recover the whole estate.
On a bill being filed by the devisee of James, it was argued for Joseph, that
he had never agreed to abandon any right which he might thereafter acquire,
and which was neither in his own contemplation nor in that of the party with
whom the agreement was made ; and that, in most of the cases which were
cited, the parties had a full knowledge of all the circumstances enabling them
to enter into a compromise. However, Lord Langdale, M. 11., decreed Joseph
to do all necessary acts to bar the entail, and vest the parts of the lands allot-
ted under the agreement to James, upon the trusts of James's will. " It does
not," said his Lordship, " appear to me that the agreement merely related to
the mode of enjoying the estate, or had reference only to a partition. Joseph
did not so consider it; he knew that James thought himself entitled to the
whole estate, and he himself influenced, as he says, by the assertions of James,
and desirous to avoid litigation, consented to accept less than half. This,
then, is not a simple agreement for equality of partition — it is an agreement
for partition, with compensation for abandoning a supposed right and a claim.
Upon what that supposed right depended does not appear; but that there was
a supposed right of James, to some extent yielded to by Joseph, is clear ;
and, if it be considered that the right which, to the parties themselves, at
that time was only supposed, had a real foundation, which might have been
verified either by production of the document then in the possession of Joseph,
or by searching the Court rolls of the manor, that, if Joseph had not made
the concession which he did, James, instead of consenting to the agreement,
might have investigated the title, and proved that the whole estate was his
own, it will appear that the concession, however trifling, in itself, placed the
parties in a situation very different from that in which they might otherwise
have stood ; and, looking at this case with reference to those principles, de-
ducible from the several cases cited at the bar, I am of opinion that the agree-
ment, though parol, yet being in the nature of a family arrangement, and fol-
lowed by the uninterrupted several enjoyment of the portions allotted to the
two brothers respectively, is an agreement which this Court will enforce.
This decision was, on appeal, affirmed by Lord Cottenham. See also Heap v.
Tovge, 9 Hare, 90; Manly v. Bcicicke, 3 K. & J. 342.
302 COMPROMISE. — SEPARATE MAINTENANCE.
That a mistake of law which is common to all the parties, -will not vitiate
an arrangement, is clear. Thus, in Pullen v. Ready, 2 Atk. *587,
[*"00] j eo . ac j es were given, to be forfeited upon marriage without consent ;
one of the legatees did marry without consent, and a family arrangement,
without the advice of counsel, took place, and articles were executed, giving
that legatee the benefit of the legacy. It was insisted afterwards, that the
arrangement was made under a mistake of law that the condition was only in
terrorein, which under the circumstances, it was not; but Lord Hardwieke
decreed specific performance of the articles, saying, that, at the time of the
execution of the articles, the marriage without consent could not but be known,
and that the parties to it could not possibly be supposed to be ignorant of that
fact, which happened some years before. That it was said, they might kuow
the fact, and yet not know the consequence in law : but if parties were enter-
ing into an agreement, and the very will out of which the forfeiture arose was
lying before them and their counsel while the drafts were preparing, the
parties should be supposed to be acquainted with the consequences of law as
to that point, and should not be relieved under a pretence of being surprised,
with such strong circumstances attending it; so that, with the knowledge of
the will, and all the clauses in it, the condition annexed, and the forfeiture,
the parties, with their eyes open, executed the deed ; that it had been insisted
by counsel, that they had executed the articles under a mistake. But his
Lordship said, that there was nothing more mischievous than for the Court to
decree a forfeiture after an agreement, in which, if there was any mistake, it
teas the mistake of all the parties to the articles, and no one of them was more
under an imposition than the other. The Court was so far from assisting to
set up the forfeiture again, that it would rather rejoice at the agreement, be-
cause it had absolutely tied up the hands of the Court from meddling in the
question; and if it were to decree the forfeiture then, it would be making all
agreements vain and nugatory ; the case that came nearest to the present was
Cann v. Cann, before Lord Macclesfield.
Where, therefore, a doubtful question arises, such as a question of construc-
tion upon a will, it is extremely reasonable that parties should terminate their
differences by dividing the stake between them, in the proportion which may
be agreed upon. Per Sir J. Leach, V. C, in Xaylor v. Winch, 1 S. & S. 564.
So where payments were made under a mistaken construction of a doubtful
clause in a settlement, the Court refused to direct them to be refunded, after
many years of acquiescence by all parties, and after the death of one of the
r*7ni .. authors of the settlement, especially as subsequent family arrangements
L J *had proceeded on the footing of that construction : Clifton v. Cork-
lurn, 3 My. & K. 76; and see Great Western Railway Co. v. Cripps, 5
Hare, 91.
The principle of these cases seems to have been departed from in Lans-
down v. Lansdown, Mos. 364. In that case there were four brothers ; the
second died, and the eldest brother entered upon his lands; the youngest
brother claimed a title ; upon which they applied to Hughes, a schoolmaster,
STAPILTON V. STAPILTON. 393
their neighbor, in the country, (who often acted as ah attorney,) for his opi-
nion, who upon consulting a book called "The Clerk's Remembrancer/' gave
it in favor of the youngest brother, because land could not ascend ; upon
which the eldest brother agreed to divide the estate with the youngest, and
declared he would rather do so than go to law, though he had the right ; upon
which Mr. Hughes prepared deeds of lease and release of the moiety which
were executed by the eldest brother, and bonds of the penalty of 300?., which
was computed to be the value of the moiety, conditioned for quiet enjoyment
of their respective shares. The youngest brother died, and the moiety de-
scended on the infant defendant, his son and heir. And Lord Chancellor
King decreed, that the bond and deeds of lease and release should be delivered
up to the plaintiff, the eldest brother, being obtained by mistake and misre-
presentation, and that the defendant, the infant, when he came of age should
convey nisi, &c. ; and his Lordship said, that the maxim of law, Ignorantia
juris non excusat, was, in regard to the public, that ignorance cannot be
pleaded in excuse of crimes, but did not hold in civil cases.
An extract of this case, from the Registrar's Book, is given, 2 J. & W.
205, where the ground for the decision is stated to be " mistake and misrepre-
sentation of the law." A mere mistake, however, or misrepresentation of
the law by the person the brothers consulted, would not be sufficient reason
for refusing to carry into effect such an agreement; and it is clear that the
observation of Lord King, that the maxim, Ignorantia juris non excusat, did
not hold in civil cases, has not been recognized in modern times. See Stewart
v. Stewart, 6 C. & F. 966.
Moreover, where parties come to the Court of Chancery to be relieved
against the consequences of mistakes in law, it is the duty of the Court to be
satisfied that the conduct of the parties has been determined by those mistakes,
otherwise great injustice may be done. Parties may be erroneously advised
as to the law, but they may be told in what circumstances the question of
law depends, and in what mode it may be tried, and they may determine that
(whether the advice they have received be well or ill founded) they will give
*up the question in favor of the party with whom it arises. Cases
of this nature therefore, require the most careful examination, and L "'-'
particularly when they arise between parent and child. Per Sir G. Turner,
V. C. j Stone v. Godfrey, 5 De G. Mac. & G. 90.
Any transaction between father, tenant for life, and son, tenant in tail of
property, entered into upon barring the entail, is looked upon in the nature
of a family arrangement ; and, in such a case, apparent inadequacy of consi-
deration, and the circumstance that the property is reversionary, will have
but little weight. In Cory v. Cory, 1 Ves. 19, on the fact appearing, that
one of the parties was drunk at the time an agreement was entered into to
settle disputes in a family, Lord Hardwicke thought that it was not sufficient
to set the agreement aside, as it was reasonable, and it did not appear that
any unfair advantage was taken. And he observed, that, " if a son, tenant
in tail, and a father, tenant for life, agree on something for the benefit of the
394 COMPROMISE. — SEPARATE MAINTENANCE.
younger children, and afterwards the son complains of paternal authority
being exerted, though there might be something of that sort, yet, if the agree-
ment be reasonable, the Court will not set it aside." And see Wycherley v.
Wycherley, 2 Eden, 175; Persse v. Persse, 7 C & F. 318.
In Bellamy v. Sabine, 2 Ph. 425, upon an agreement between father and
son for disentailing an estate, and for a conveyance to the son in fee, the
main consideration moving from the son was an undertaking to pay the father's
debts, even the circumstance of several of the most important items being left
in blank was held insufficient to set the transaction aside as against the father
though the son was only just come of age, as a family arrangement of such
a description could not be supposed to have depended upon a very exact cal-
culation of the amount of debts. See also Hoghton v. Hoghton, 15 Beav. 305,
where the law upon the subject is very elaborately laid down by Sir John
Komilly, M. R., Dimsdale v. Dimsdale, 3 Drew. 556. As to undue influence
on the part of a parent, see ante, p. 489.
A bona fide family arrangement (previous to the abolition of the usury laws)
would not have been deemed usurious merely because it secured a loan with
legal interest, and the borrower, by way of settlement, made other provisions
for the lender : Arkwright v. Lord Huntley, Printed Cases, D. P., 1825, cited
Sugd. Prop. 86.
If an arrangement between two parties is, on moral principles, fair, or is
such as is sustainable, as between them, on the ground of its being a family
transaction, it will not be rendered invalid because it may have been concocted
and brought about by a third *party, with a fraudulent intention of
L ' -I benefiting himself. Thus, in Bellamy v. Sabine, 2 Ph. 425, an agree-
ment between a father, tenant for life, and an eldest son, tenant in tail, for
certain considerations, to bar the entail and convey the estate to the son, was
followed, within a fortnight, by the sale of the estate by the son to the soli-
citor who had acted for both parties in the agreement. In a suit, after the
death of the son without issue, by the next remainderman in tail, who was
also heir-at-law of the son, to set aside both transactions, and to have the estates
resettled to the former uses, Lord Cottenham was of opinion, upon the evidence,
that both transactions were but parts of one scheme, contrived by the solicitor
for his own benefit; but, being also of opinion, that, on the principle of family
arrangements, the agreement between the father and son was not necessarily
an unfair one in itself, the second transaction only was set aside, the bill
being dismissed as to the first, and the solicitor was decreed to convey the
estate to the plaintiff in fee.
Although it is clear that when parties enter into a compromise or family
arrangement, in order to avoid litigating the question as to whether one of
the parties is entitled to certain property or not, such compromise will not be
set aside although it should eventually turn out that the party taking some-