Hart v Hart

(1881) 18 Ch D 670, 50 LJ Ch 697, 30 WR 8, 45 LT 13, [1881-5] All ER Rep Ext 1745

Court: Ch D

Judgment Date: circa 1881

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ARBITRATION - OUSTER OF THE COURT'S JURISDICTION; SCOTT V AVERY CLAUSES - EFFECT OF AGREEMENT TO REFER ON JURISDICTION OF THE COURT - OUSTER OF JURISDICTION - GENERAL RULE - AGREEMENT AS TO TERMS OF SEPARATION - COURT'S POWER TO SETTLE DEED

Plaintiff, wife of defendant, claimed specific performance of an agreement for a separation deed entered into upon the compromise of a suit in the Divorce Court, which was instituted by the husband against the wife for a divorce on the ground of adultery. The agreement was signed by both husband and wife, after the husband's evidence in support of his case had been heard, and before the wife's defence had been commenced, and contained (inter alia) these terms: 'Petition and answer dismissed. Deed of separation with usual covenants. In case of difference in working out these terms, matter to be referred to [the leading counsel on each side]': Held the agreement on the face of it being complete, the arbitration clause could only come into force in case of difference between the parties, and did not oust the jurisdiction of the court to settle the deed itself.

DEEDS AND OTHER INSTRUMENTS - INTERPRETATION OF DEEDS AND NON-TESTAMENTARY INSTRUMENTS - ADMISSION OF EXTRINSIC EVIDENCE - TO EXPLAIN THE MEANING AND APPLICATION OF WORDS - TO EXPLAIN SURROUNDING CIRCUMSTANCES - IN GENERAL - OF FACTS OF A TRANSACTION-AT DATE OF AGREEMENT

The court has a right to know, and is bound to know, all the material facts which were known to the parties at the time when the agreement, deed, will, or whatever it may be, was entered into or made (Kay J).

HUSBAND AND WIFE, JOINT PROPERTY AND MATRIMONIAL CAUSES - CONTRACTS FOR SEPARATION OR MAINTENANCE - BREACH OF CONTRACT - REMEDIES FOR BREACH - SPECIFIC PERFORMANCE - JURISDICTION OF COURT OF CHANCERY - AGREEMENT IN COMPROMISE OF DIVORCE PROCEEDINGS

Plaintiff, Mrs H, who was the wife of defendant, claimed specific performance of an agreement for a separation deed entered into upon the compromise of a suit in the Divorce Court which was instituted by the husband against the wife for a divorce on the ground of adultery. The agreement was signed by both husband and wife, after the husband's evidence in support of his case had been heard and before the wife's defence had been commenced, and was in these terms: 'Petition and answer dismissed. Deed of separation with usual covenants; costs of preparing deed to be borne by Mr H. Mr H to pay Mrs H for herself and child or children £150 a year quarterly. Mrs H to maintain the child or children. Mr H to pay wife's costs. In case of difference in working out these terms, matter to be referred to W & D' (the leading counsel on each side): Held (1) this court had power to enforce specific performance of an agreement for a separation deed and for the compromise of a suit in the Divorce Court without infringing Judicature Act prohibiting interference with proceedings pending in another branch of the court; (2) the court would not refuse specific performance of an agreement for a separation deed on the ground that it provided for the wife having the custody of the children; (3) husband and wife were competent to make a binding agreement for compromise of a divorce suit, and this agreement was not too vague to be enforced by the court; (4) a dum casta clause did not come within the term 'usual covenants' in a separation deed agreed to as part of the terms of compromise of a divorce suit; (5) the court would construe the term 'usual covenants' in reference to surrounding circumstances, but the adultery of the wife not having been proved could not form an element for the consideration of the court; (6) the agreement on the face of it being complete, the arbitration clause could only come into force in case of difference between the parties, and did not oust the jurisdiction of the court to settle the deed itself. Decree for specific performance; the deed of separation to be settled in Chambers if the parties differed, and no dum casta clause to be inserted. (7) It is no answer to a suit for specific performance for defendant to say that though he understood what the words of the agreement were, he was under a mistake as to their legal effect. (8) Section 2 of Custody of Infants Act (c 12) provides: 'No agreement contained in any separation deed made between the father and mother of an infant or infants shall be held to be valid by reason only of its providing that the father of such infant or infants shall give up the custody or control thereof to the mother; provided always that no court shall enforce any such agreement if the court shall be of opinion that it will not be for the benefit of the infant or infants to give effect thereto.' Surely the plain ordinary meaning of that clause is unmistakable. The deed is not to be invalid, nor is the particular clause in the deed giving up the custody of the children by the father to be invalid; but it is to be read as if there were inserted in it that this convention as to the custody of the children is subject to the power of the court as guardian of the infant children, to enforce or refuse to enforce that, according as the court may think the interests of the infant children require the enforcement or non-enforcement of that clause. Then, if in a deed of separation a covenant by the father to give the custody of the infant children to the mother is not of itself invalid, how can an agreement for a deed which is to contain such a covenant be invalid either? (Kay J).

HUSBAND AND WIFE, JOINT PROPERTY AND MATRIMONIAL CAUSES - DISPOSING OF CAUSE LISTS - DISPOSAL WITHOUT HEARING OR TRIAL - BY COMPROMISE - VALIDITY OF COMPROMISE - SUIT ON GROUND OF WIFE'S ADULTERY - COMPROMISE GIVING WIFE CUSTODY OF CHILD

Plaintiff, Mrs H, who was the wife of defendant, claimed specific performance of an agreement for a separation deed entered into upon the compromise of a suit in the Divorce Court which was instituted by the husband against the wife for a divorce on the ground of adultery. The agreement was signed by both husband and wife after the husband's evidence in support of his case had been heard and before the wife's defence had been commenced, and was in these terms: 'Petition and answer dismissed. Deed of separation with usual covenants; costs of preparing deed to be borne by Mr H. Mr H to pay Mrs H for herself and child or children £150 a year quarterly. Mrs H to maintain the child or children. Mr H to pay wife's costs. In case of difference in working out these terms matter to be referred to Mr W and Dr D': Held (1) this court had power to enforce specific performance of an agreement for a separation deed and for the compromise of a suit in the Divorce Court without infringing Judicature Act prohibiting interference with proceedings pending in another branch of the court; (2) the court would not refuse specific performance of an agreement for a separation deed on the ground that it provided for the wife having the custody of the children; (3) the husband and wife were competent to make a binding agreement for compromise of a divorce suit, and this agreement was not too vague to be enforced by the court; (4) the agreement on the face of it being complete, the arbitration clause could only come into force in case of difference between the parties, and did not oust the jurisdiction of the court to settle the deed itself.

MISTAKE - LEGAL CONSEQUENCES AND CLASSIFICATION OF MISTAKE - MISTAKE OF LAW - WHEN RELIEF GRANTED - MISTAKE OF GENERAL LAW - GENERAL RULE - LEGAL INTERPRETATION OF CONTRACT

It is no answer to a suit for specific performance for defendant to say that though he understood what the words of the agreement were, he was under a mistake as to their legal effect.

SPECIFIC PERFORMANCE - DEFENCES TO CLAIMS FOR SPECIFIC PERFORMANCE - CONTRACT CONCLUDED AT LAW; UNCERTAINTY IN EQUITY - UNCERTAINTY AS TO GENERAL TERMS, SUBJECT MATTER OR PARTIES - EFFECT OF PARTIAL PERFORMANCE ON UNCERTAINTY - GENERAL RULE

It is no answer to a suit for specific performance, for defendant to say that though he understood what the words of the agreement were, he was under a mistake as to their legal effect.

Although there may be considerable vagueness in the terms, and although it may be such an agreement as the court would hesitate to decree specific performance of, if there had not been part performance, yet when there has been part performance the court is bound to struggle against the difficulty arising from the vagueness (Kay J).