Trust implied from circumstances. Effect of payment made in consequence of a general disposition of moveables.
Click here to view a pdf copy of this documet : PDF Copy
In the year 1728, Nathaniel Ramsay butcher in Perth, granted a disposition of all his moveables in general, to Jean Stalker his wife, bearing to be with the burden of his debts, leaving a tenement in Perth, which he had purchased from Graham of Redford, by a minute of sale, but whereof the price, being 1100 merks, was not yet paid, to descend to Mary Ramsay, his daughter, and only child.
Jean Stalker, the relict, after having intromitted per universitatem, with her husband's moveables, acquired, in her own name, two adjudications, affecting the said tenement, one of which stood in the person of John Graham, son to Redford, who concurred with the Representatives of William Caddel, in whose person the other stood, in the disposition to her, which proceeded upon the narrative of the minute of sale, and of her having paid the 1100 merks to the representatives of William Caddel.
Jean Stalker, after the death of her daughter, sold this tenement to the Corporation of Butchers, against whom Euphan Ramsay, the sister and heir of Nathaniel, brought a reduction, in which she prevailed on this ground, That the purchase of the adjudications, by Jean Stalker the relict, appeared from its proceeding on the narrative of the minue of sale, to have been a trust for her daughter, and therefore the right in the corporation was a non babente; notwithstanding it was argued, that, by the act of Parliament 1696, trust could not otherwise be proved than by oath of party, or writ expressly acknowledging it; in respect of the answer, that the act is nor to be so understood, but that trust may be inferred from writs importing a trust, though there be no express declaration of trust.
It was then insisted, That as, upon a fair count and reckoning, it would appear that the moveables disponed by Nathaniel Ramsay to Jean Stalker were exhausted by other debts paid by her, she at least remained creditor in the 1100 merks paid for the adjudications; and that she, and those deriving right from her, had right to retain the subject in security thereof.
But the Lords found, “that she had no claim for repetition of the 1100 merks or any part thereof.”
A general disposition, even when with the burden of debts, has always been thought sufficient to defend against the universal passive title; and therefore, if she had not acquired the disposition, she could not have been subjected to the payment of the price, upon her instructing that the moveables with which she had intromitted were exhausted by payment of other debts; but as she had acquired the disposition and paid the price, and as her intromission had been, per universitatem, without inventory, the Lords found her not entitled to repetition.
