Scottish Court of Session Decisions

In 1813 the late Mrs Duncan succeeded to a small property called Balgray, near Glasgow. Her succession exposed her to a variety of heavy claims, and involved her in much discussion with the claimants. For the purpose of extricating it, and administering it for her behoof, she executed a trust-conveyance in favour of Alexander Cowan, paper-maker at Valleyfield, and James Nairne, W. S., with full powers of administration and sale. These gentlemen entered on the management and made advances to her, and undertook obligations on account of the trust-estate to a large amount. Fart of their administration consisted in granting a heritable bond over the lands of Balgray, with a power of sale, to Miss Robertson, a creditor of the trust-estate. Mrs Wilson died in 1818, after executing a settlement in favour of John Drysdale, cooper in Edinburgh, which was made within a few days of her death. John Duncan, her heir-at-law, got himself entered by precept of clare constat, and raised a reduction of the settlement, on the head of death-bed, and, in the course of the process, Miss Robertson brought the estate to sale by public roup, under the powers in her heritable bond. As it appeared by this time that the trustees were likely to be losers to a considerable extent, from the inadequate price of the trust-subject, Mr Nairne, after taking the advice of counsel, became the purchaser of the subject at a price of £4600. He took various precautionary steps, by the same advice, for the purpose of certiorating Mrs Wilson's heir-at-law, that, in the event of the subject ultimately yielding such a sum as would indemnify the trustees and leave a surplus, it should be accounted for to him.

A submission was afterwards entered into between Nairne and Duncan, the arbiters being Lords Moncreiff and Cockburn, who were then at the bar. The arbiters decerned Duncan to execute an absolute conveyance in favour of Nairne, which he did, and infeftment followed upon it.

Nairne's purchase from Miss Robertson occurred after Duncan had obtained a judgment of the Lord Ordinary, reducing Mrs Wilson's settlement on the head of death-bed, but the judgment was kept open by a representation on the part of Drysdale. Answers were lodged by Nairne, in which he expressly set forth his title as the disponee of Duncan. The Lord Ordinary refused the representation, and adhered to the decree of reduction. Another full representation was given in by Drysdale, with answers by Nairne, and the Lord Ordinary again adhered. In these pleadings Nairne was specially designed as a writer to the signet. The judgment was allowed to become final. Nairne afterwards sold the lands of Balgray to William Black, merchant in Glasgow, at a price of £4850. It was said that this left a deficiency of considerably more than £2000, advanced by the trustees on behalf of the estate.

In 1830, Drysdale raised an action of reduction against Duncan, the heir-at-law, and also against Nairne and Black, libelling on the deathbed deed as his title to pursue, and he insisted for reduction, first, of Miss Robertson's disposition to Nairne, and infeftment thereon; second, of Duncan's disposition to Nairne, and infeftment thereon; third, of the decree of reduction of Mrs Wilson's settlement in his (the pursuer's) favour; and, fourth, of Nairne's disposition to Black, and infeftment thereon.

The reasons of reduction were, 1. That Nairne being trustee on the lands of Balgray, could not effectually become purchaser of the trust-estate, and therefore Miss Robertson's disposition in his favour was invalid : And 2. That the disposition from Duncan, during the dependence of the process of reduction, in which Nairne was sisted, was reducible both at common law as a pactum de quota litis, and under the stat. 1594, c. 220, in respect of his being a member of the College of Justice; and, consequently, that Black's right, derived from Nairne, was inept, as it flowed a non habente potestatem: And also that the farther procedure in the action of reduction, after Nairne's purchase, was null and void. Drysdale farther pleaded, in making up the record, that Duncan's title to challenge the death-bed deed had been cut off by certain prior deeds of Mrs Wilson.

Nairne pleaded in defence, inter alia, that Drysdale had no title to pursue, except the death-bed deed, which stood reduced by a decree in foro contentioso; and every ground which he stated for the purpose of shaking that decree, fell under the exception of competent and omitted, or proponed and repelled. The nullity of the death-bed deed was therefore res judicata, and his action was barred.

The Lord Ordinary found—“lmo, That the pursuer has made no allegations relevant to infer reduction of the decreet in foro of this Court of December, 1822, setting aside the disposition in his favour by the late Mrs Wilson, on the ground of death-bed; and therefore sustained the defences, and assoilzied the defender from the conclusions of this action, in so far as they applied to that decreet, and decerned. 2do, Found, that as the pursuer's title and interest to challenge the other writs now sought to be reduced, depends entirely on the disposition above mentioned, which stands reduced by the decreet in foro, and by the finding and decerniture above written, the said pursuer has no title to insist farther in the conclusions of this action, and is excluded by the res judicata constituted by the said decreet in foro; and therefore dismissed the action as to those other writs, assoilzied the defenders, and decerned; and found the pursuer liable in expenses.” ^*