Sec 168

Contracts of this class, like contracts under duress,4 can be ratified by the party imposed upon, after the disturbing influence has been removed; and this may be either by continuance in possession of the fruits of the contract,5 or by express approval and confirmation.6 But to work such ratification it must appear that the mind of the party imposed on was not only relieved from the undue influence under which he was placed, but was enlightened as to his true position and the nature of the particular transaction.7

Such contracts may be ratified.

v. Sacket, 1 Oh. St. 54; Rumph v. Abercrombie, 12 Ala. 64; Cadwalader v. West, 48 Mo. 483.

1 Huguenin v. Baseley, 14 Ves. 273 ; Whelan v. Whelan, 3 Cow. 537; infra, sec 292.

2 Metcalfe's Trusts, 2 De G. J. & S. 122; Davidson v. Little, 22 Penn. St. 245 ; Andrews v. Jones, 10 Ala. 419 ; cited Wald's Pollock, 562.

3 Infra, sec 235.

4 See supra, sec 154.

5 Wright v. Vanderplank, 8 D. M. G. 133; Turner v. Collins, L. R. 7 Ch. 329 ; Youst v. Martin, 3 S. & R. 423; Hassler v. Bitting, 40 Penn. St. 68. As to proof in such cases see sec 58 et seq., 154.

6 Stump v. Gaby, 2 D. M. G. 623; Morse v. Royal, 12 Ves. 355.

7 Supra, sec 154; Moxon v. Payne, L. R. 8 Ch. 881; Kempson v. Ashbee, L. R. 10 Ch. 15 ; Montgomery v. Pickering, 116 Mass. 227 ; Price's App., 54 Penn. St. 472 ; Thompson v. Lee, 31 Ala. 292. That knowledge of law is not necessary, see supra, sec 57. In Mitchell v. Homfrey, 45 L. T. N. S. 694, cited supra, sec 161, we have the following from Lord Selborne : "The case of Rhodes v. Bate (L. Rep. 1 Ch. App. 252), though it goes further than any other, laying down that wherever there is a confidential reiationship the beneficiary must show not only that there was no impropriety in the gift, but that the donor had independent advice, does not go on to say that that is necessary if there is a deliberate intention to abide by the transaction after the influence has ceased and any effect produced by the relationship has been entirely removed. There is not much authority to assist us in arriving at our decision, which is in favor of not disturbing this judgment; but there is some. The case of Dent v. Bennett (4 Myl. & C. 269) was a case where the gift was set aside ; but I find this passage in the judgment of the Lord Chancellor (Cottenham) at p. 275 : ' There is an absence of all evidence of the testator having at any time recognized, or in any manner given any proof of approval of the agreement, or of any consciousness of its existence.' That does not go far to show what the effect. of such evidence would be; but at least it shows that it would have been a very material element in arriving at.

Sec 169

If we place together an expectant heir, in needy circumstances, ready to seize money on any terms, no matter a decision in that case. In the case of Wright v. Vanderplank (8 De G. M. & G. 133) Turner, L. J., who delivered the judgment in Rhodes v. Bate (L. Rep. 1 Ch. App. 252), says, at p. 146: 1 A child is presumed to he under the exercise of parental influence as long as the dominion of the parent lasts. Whilst that dominion lasts, it lies on the parent maintaining the gift to disprove the exercise of parental influence, by showing that the child had independent advice, or in some other way.' I do not lay much stress on that; hut I know of no reason for supposing that the law on this point as between doctor and patient differs from that as between parent and child. The lord justice continues : ' When the parental influence is disproved, or that influence has ceased, a gift from a child stands on the same footing as any other gift; and the question to be determined is, whether there was a deliberate unbiassed intention on the part of the child to give to the parent. Applying these considerations to the present case, it is difficult to say that the transaction could have been maintained if the case had rested upon the mere circumstances which attended the original gift. I think that it could not. I am satisfied that the court would be departing from established principles in upholding it. The transaction had its inception at a period when the minority had just terminated. It was completed while the parental influence and authority was in full force, and there was no independent advice given to the daughter. The transaction, therefore, was impeachable at and after its completion ; and the only question is, whether it has become unimpeachable by reason of what has subsequently occurred. It has been argued at the bar that it has not; for that some positive act was required to make it so, and that here no such act has been done. I am not of opinion that a positive act is necessary to render the transaction unimpeachable. All that is required is proof of a fixed, deliberate, and unbiassed determination that the transaction should not be impeached. This may be proved either by the lapse of time during which the transaction has been allowed to stand, or by other circumstances. Here I have no doubt that there was a fixed, deliberate, and unbiassed determination on the part of the lady that the transaction should not be impeached.' No doubt the fact of the subsequent marriage of the lady who was the donor in that case, and, indeed, the whole of her life, was consistent with that judgment. The lord justice continues : ' It is stated on the face of the bill that the daughter had been informed by some of her friends before her marriage that a fraud had been practised on her by the defendant. Now she was plainly a woman of strong understanding and capable of transacting business, and it is impossible to suppose that she, having been told that a fraud had been practised on her, should not have been aware that the courts could relieve her. And if it were possible to suppose this, the facts of the case exclude the supposition.' Therefore, it must be taken that in that case the donor knew as a fact that the transaction was impeachable. At the same time, that case is very near this one, if we may treat this case as if there had been a finding of the jury that the donor was indifferent how onerous, and a money lender, who has money enough to satisfy such greed, cunning enough to hold the borrower whom he once entangles in his toils, and rapacity enough to extort exorbitant interest, we have the ingredients of another line of cases of undue influence in which the corrective powers of courts of equity have been beneficially employed. Money lenders of this kind occupy positions of authority in reference to an unfortunate client. They are few in number; when once they are applied to, they occupy a position of power from which it is difficult to eject them. Hence unconscientious bargains by heirs expectant with persons of this class will be set aside.1 The rule includes remainder-men ;2 and it has been extended to younger sons, with no settled estate in remainder, on the expectation that their friends will pay to avert bankruptcy or exposure.3 But under this head do not fall bargains for the purchase of vested interests due at a fixed future period.4 And in England it having been found that the court of chancery had pushed the rule to such an extent as to make it unsafe to purchase reversions unless at public auction,5 an act was passed by parliament, in 1867,6 by which it was enacted that no purchase made bona fide, and without fraud or unfair dealing, of any reversionary interest, shall be opened or set aside merely on ground of undervalue. The act, however, says Mr. Pollock, "is carefully limited to its special object of putting an end to the arbitrary rule of equity, which was an impediment to fair and reasonable as well as to unconscionable whether she could set aside the gift or not, so that whether she knew or not would be immaterial." S. C. 8Q. B. D. 587.

Necessity of heir expectant may conduce to undue influence.

1 Aldborough v. Trye, 7 CI. & F. 436 ; Aylesford v. Morris, L. R. 8 Ch. 484; see Tottenham v. Emmett, 14 W. R. 3 ; Davidson v. Little, 22 Penn. St. 252.

2 Beynon v. Cook, L. R. 10 Ch. 391; Miller v.Cook, L. R. 10 Eq.641; O'Rorke v. Bolingbroke, L. R. 2 Ap. Cas. 814.

3 Nevill v. Snelling, L. R. 15 Ch. D.

4 Parmelee v. Cameron, 41 N. Y. 392; Cribbins v. Markwood, 13 Grat. 495. As to "option" see infra, sec 454.

5 Bromley v. Smith, 26 Beav. 644; Foster v. Roberts, 29 Beav. 471; Nesbit v. Berridge, 32 Beav. 282 ; Lord v. Jeff-kins, 35 Beav. 7. A sale was set aside after nineteen years; St. Albyn v. Harding, 27 Beav. 11; and another after forty years. Salter v. Bradshaw, 26 Beav. 161.

6 31 Vict. c. 4.

bargains. It leaves undervalue still a material element in cases in which it is not the sole equitable ground for relief."1 And it has been settled that when the transaction is fair, the sale of a contingent legacy, or even of a naked possibility or expectancy of an heir in an ancestor's estate, will be sustained in equity after the ancestor's death,2 though the burden is on the party who thus dealt with an heir expectant to show the good faith and fairness of the transaction.3 The equity is one belonging to the heir who is induced to make an improvident bargain, and it is not lost to him by the fact that his father, after whose death he was to inherit the estate assigned away, consented to the bargain.4 And a party seeking relief of this class is bound to restore that which he received.5