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Dillwyn v Llewelyn [1862] EWHC Ch J67; 45 ER 1285

Incomplete gifts and interests in land.

Facts:

A father signed a memorandum leaving his farm to his son. However, this memorandum was not executed by deed. The plaintiff took possession of the land and built a dwelling upon it at a considerable expense. This was done with the knowledge and approval of the father. However, the father died without ever transferring the legal estate to his son. The plaintiff then claimed an equitable interest in the property from his father’s executor.

Issues:

The memorandum did not satisfy the formalities required to pass an estate in land. The courts normally treated such a promise as an imperfect gift, and equity will not assist a mere donee who has given no consideration for such a promise by perfecting a gift if it failed. 

Held:

The court found in favour of the plaintiff. This was not merely an incomplete gift. The father had made an assurance that the son would receive the fee simple, and in reliance upon this the son had spent a considerable amount of money. Lord Westbury held that a donor’s subsequent acts may give a donee rights which he did not acquire from the original gift. He said the current case was analogous to part performance of a contract; in spending money, the son had provided valuable consideration. Equity acts upon what is done not the language of a memorandum. There was a clear intention to convey the fee simple to the plaintiff. Therefore, the court ordered the defendant to convey the freehold to the plaintiff.


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