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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Aberdein v. Stratton's Trustees, Etc [1867] ScotLR 3_346 (28 March 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0346.html
Cite as: [1867] SLR 3_346, [1867] ScotLR 3_346
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SCOTTISH_SLR_Court_of_Session
Page: 346↓
Court of Session Inner House Second Division.
v.
Facts:
Averments which held not relevant to support an action of reduction and declarator, concluding that the pursuer was entitled to a conveyance of certain heritable subjects sold by auction, on payment of the upset price or of the highest offer.
Certain house property in Montrose, belonging to Stratton's Trustees, was exposed for sale by public roup on 28th October 1864, at the upset price of £460. The pursuer's agent attended the sale, and offered the upset price. A competition ensued between the pursuer's agent and John Fairweather, one of the defenders. Fairweather offered up to £650; the pursuer's agent offered £655, and was declared the purchaser. The pursuer now averred that his agent, after making that offer, discovered that John Fairweather was not a bona fide offerer, but was acting in the interest of the exposers of the property. After the sale a minute of offer was written out, bearing that the pursuer's offer of £655 being the last offer, had been accepted. This minute, however, was not signed either by the pursuer or his agent, the minute bearing that the agent declined to subscribe. The pursuer afterwards formally protested his right to the property at the upset price. In November following the trustees conveyed the property to John Fairweather. The pursuer now sought reduction of this conveyance, and declarator that he had right to the property at the upset
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price of £460, or at all events at the price of £655, the highest offer at the sale. The summons also contained a conclusion for damages. The defenders, Stratton's Trustees and John Fairweather, pleaded in defence that the pursuer had no title to sue, and that the action is irrelevant. He had failed, they said, to sign his offer and minute of sale when required to do so, in terms of the articles of roup, and the trustees were entitled to convey to the next highest offerer, as they had done, in the bona fide discharge of their duty as trustees. The pursuer, on the other hand, pleaded that none of the offers at the sale were valid except his first offer of £460; that as he had never been asked to sign that offer, the fact that he had not signed it could not be leaded against him; and contended further that he was justified in not signing his offer of £655, because he meant to insist on his right to the property at £460. The case came up before the Court on an issue of damages,
D. F. Moncreiff and Asher for the pursuer in support of the action.
Gifford and W. M. Thomson for Stratton's Trustees.
Solicitor-General and Webster for John Fairweather.
At advising,
The facts, according to the statement of the pursuer, are substantially these:—The defenders, the two trustees of the deceased proprietor of the subjects, resolved to expose the subjects for sale by public roup at an upset price, under written conditions of roup binding them to convey the subjects to the offerer of the upset price, or to the highest offerer, if there should be a bidding above that amount. His case is, that he bade the upset price, which was £460; and further, that he was induced to bid a sum considerably in advance of that sum, and was declared the purchaser at a price of £655. He says that, before signing his offer for the sum of £655, he discovered that the biddings above the upset price in competition with him were given illegally and unfairly by a party in collusion with the exposers, or one of them, and that consequently he is entitled to have the subjects conveyed to him either at the price at which they were knocked down to him, or at the upset price.
In so far as concerns the demand in the summons for a conveyance of the subjects at the price of £655, it seems to be clear that the pursuer has no case. He refused, contrary to the articles of roup, to subscribe a written offer for the amount, or to oblige himself to find caution. Failing to comply with the conditions which the conditions of sale made imperative, he cannot he found entitled to the subjects at that price. But the pursuer strenuously maintained his right to have the subjects conveyed to him at the upset price, and in support of that demand we have heard a very able argument. The subjects, the pursuer says, were offered by the exposers at an upset price, which he, by his bode at the roup, agreed to give; that there was no legal bidding above his, and consequently that he has right to the subject in virtue of the agreement that the offerer of the upset price, in the absence of higher offerers, should have the subject.
The defenders take two grounds. They say that the pursuer cannot claim implement of an alleged agreement as to heritage without writing; and, separatim, that the averments are irrelevant to support the conclusions. The first objection is based upon a well-known rule of the law of Scotland, that writing is necessary as a solemnity both on the part of the seller and of the alleged purchaser to constitute a completed contract of sale. Without instructing a contract so completed, the argument is—there can be no good demand for a conveyance of the subject; and if there be no good demand for a conveyance, there can be no interest to insist in the declaratory or reductive conclusions, and no claim for damages, because there can be no breach of an obligation not completed in a way which the law declares, and in reference to which the absence of writing was the pursuer's fault.
There is no doubt that the pursuer did not subscribe his offer of the upset price, or any other offer. I think it is equally certain that there is no proper case of rei interventus. There was nothing done in implement of the alleged finished contract. The allegation of completed contract must rest upon the effect of the verbal offer, or, as it may be represented, the verbal acceptance of the pursner's offer, to be made out, of course, by parole proof or by admission. A verbal offer, or a verbal acceptance of an offer, whether written or verbal, is admittedly incapable of binding parties in ordinary cases of sales of heritage. Is there any peculiarity in sales by auction? I cannot conceive that there should be any distinction. The law is laid down in peremptory and absolute terms, and there seems to be no reason why there should be any distinction between a verbal offer or verbal acceptance in an auction-room, and a verbal offer or verbal acceptance in the chambers of a legal practitioner. Accordingly the supposed peculiarity is rather rested upon the clause in the conditions of roup, by which it is provided (p. 8, App.) that offerers, if required, are to sign their offers. This is said to amount to a dispensation from the ordinary law, and to intimate that the exposers will be bound, if a verbal offer should be made and no writing asked. I do not so interpret this clause. The view which I take of it is this—the rule of law being that a verbal offer does not bind the offerer, the exposers stipulate that the verbal offerer at the roup should be, if required, obliged to bind himself legally—that is, in writing. In other words, the exposers may test the sincerity of any one who bids by making his offer binding. It is a stipulation for the benefit of the exposers, not against them—not declaratory that they should be bound in a way unknown to the common law, but putting themselves in the position to fix down a verbal offerer by making his bode effectual. That this is the true meaning, is clear from the provision of the articles of the conditions of roup, which says—(App., p. 11, F.) This seems to confirm the general rule, and certainly it seems to me to be a
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The Lord Ordinary seems to think that there is an exception to the ordinary rule in this case, because the non-subscription of the pursuer may be thought to be attributable to the fault of the trustees. I fail to see this. No signature was tendered; had the signature been tendered and declined, the case might have been different. An attempt was made to make out written proof of the pursuer's offer from the statement in the minutes that offers were made. It seems to be a sufficient answer to this to say, that the name of the pursuer is not alluded to at all in the minutes.
Separatim, I think the allegations irrelevant to form a legal ground for the conclusions. I shall not say more in reference to this part of the case, which will probably be more fully dealt with by some of your Lordships than this. I find no such statement of collusive proceedings on the part of the trustees as appear to me to be sufficient to make the illegal biddings acts of the trustees. The statements where the exposers are mentioned as entering into an illegal collusion, are not precise and definite, but qualified by an alternative, and that simply involving one of the trustees. I think that the act of one out of a body of trustees in employing a party to bid for him cannot have the legal effect of depriving the trust-estate of the benefit of an advantageous sale, or lead to the conclusion that another and much lower offerer shall have the estate at what is manifestly an undervalue.
As to damages, the ground pointed at in the issue proposed was a supposed prevention on the part of the exposers of the pursuer from making a written offer. I have already expressed my view upon that point. Further, if my view be right, that the absence of a written offer or acceptance is fatal to the pursuer's claim, he is himself to blame for failing to tender it. I am on the whole for sustaining the defences.
There is certainly much force in this objection, and as regards one branch of the pursuer's demand, it scarcely admits of any satisfactory answer. Even in relation to the whole conclusions of the summons, the objection, when viewed apart from the special circumstances averred in the record, might well be held to be fatal to the action. For the original offer of the upset price is not set forth to have been made by Burness as acting for the pursuer; and the whole proceedings at the sale to have been conducted without regard to the forms usual in public sales of heritable subjects. Still, reasons are alleged in the record for the want of writing which, if otherwise relevant, go far to meet the objection to the pursuer's title on this pound, while the minutes of roup subscribed by the judge thereof; and the relative notarial protest taken by Burness on the part of the pursuer, and served on the parties on the day of sale, might justly, in the special circumstances, have been contended to be sufficient written evidence of the alleged sale. I do not, however, consider it necessary to prosecute this inquiry further, having arrived at the conclusion that there is no relevancy in the pursuer's statements to support the conclusions of the summons, even if he title were not open to objection.
As regards the claim of the pursuer stated alternatively to have the subjects held as purchased by him as the last and highest offerer at the price of £655, this is quite untenable, on the clear ground of refusal to comply with the articles of roup when required. It is to this branch of the pursuer's case that the objection to his title is peculiarly applicable; for it necessarily assumes that the proceedings at the sale were unobjectionable, and that as the last and highest offerer the pursuer became purchaser. But if so, then, as he did not subscribe the minutes, the consequence was that the purchase devolved on the next immediate offerer, Fairweather; and thus the whole case resolves into the relevancy of the statements to support the pursuer's claim to have the subjects declared to have been sold to him at the upset price of £460.
Now, as to this, the remedy sought by the pursuer by the conclusions of the action is for partial reduction of the minutes of sale “in so far as they embrace, contain, or give effect to any offers or offer” by John Fairweather, and in so far as they contain and give effect “to any offer by the pursuer above £460”—that is, the remedy sought is by partial reduction of the proceedings at the sale, and not total reduction of them, the object being to lay the basis for the declaratory conclusion that follows—viz., that the pursuer did become the purchaser of the subjects at the upset price of £460.
The legal principles applicable to such a case are stated in the case of Gray v. Stewart and others (1763), D. 9560; and in Elchies v. Sale, No. 10. And the were fully considered and clearly enunciated in the opinion of this Division of the Court delivered by Lord Wood, in the
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The sixth article of the condescendence contains the averment on which the pursuer's case rests. It states that the pursuer's agent, Burness, after making the offer of £665, at which price the subject were entered in the minutes as sold to him being the highest offerer, discovered, and it is alleged to be the fact, “that the said John Fairweather (the competing offerer with the pursuer) attended the sale and made the offers he did, not as a fair and bona fide offerer, or for himself and on his own behalf, but as acting on the instructions and on behalf of and in the interests of the said trustees, the exposers, or of David Fairweather, one of the exposers, or otherwise in collusion with the said exposers, or at least with the mid David Fairweather.” And the allegation which follows of fraudulent device and concert is in like manner stated as having been arranged between John Fairweather “and the said exposers, or at least between him and the said David Fairweather.” This is the averment on which the pursuer relies to support his action.
But in the first place, that John Fairweather appeared for David Fairweather with a view to the latter as an individual becoming purchaser of the subjects cannot be relevant to set aside a sale, in which the trust-estate and beneficiaries were alone intemated. David Fairweather was not the exposer of the subjects, nor was it for any interest of his as beneficiary that the sale was carried through. The averment so far has no relevancy. But will it be less irrelevant that, as one of the trustees, he was one of the exposers? This is the primary question to be solved.
Now, it may well be contended that it was wrong for him to appear as an offerer at the sale, whether personally or by an agent, seeing that in his trust capacity he may be presumed to have some knowledge affecting the value of the subjects of which the public were ignorant. And it may be admitted that the beneficiaries, were it for them interest to do so, could set aside the purchase by one thus situated. But when those interested in the trust are satisfied with the sale, and the price obtained, on what legal ground is it that the competing offerer can complain and insist for partial reduction of the proceedings, to the effect of his being referred to the subjects because of his having offered the upset price? It is not the trustees who appear as offerers as acting for behoof of the trust-estate and of the beneficiaries. They were exposers of the subjects in that capacity; but David Fairweather, in appearing by John Fairweather, is not alleged to have acted for behoof of the trust-estate and for the interests of the beneficiaries. There is therefore no room for the application of the principle which prevailed in the case of Faulds. In the view of the Court there was, in that we, but one bona fide offer and but one bona fide offerer, the only competitor being the party for whose behoof the subjects were exposed. Hence effect was given to the offer of the upset price, and all that followed was reduced as having been fraudulently and illegally gone about and induced. The partial reduction to which the Court gave effect in such circumstances has no application to a case where the only allegation is that one of a body of trustees, by whom the subjects were exposes, did, not as representing the trust, but as an individual, appear and offer at the sale, and became the purchaser. It would be unjust to the parties interested beneficially in the trust-estate to hold on that ground that the competitor who offered the upset price was entitled to have the subjects declared to be his, although the biddings at the sale had brought up that price 50 per cent. An attempt to set aside the whole proceedings at the sale to the effect of having the subjects exposed de novo would be intelligible. Even then the trust benficiaries and the trustees might well contend that an act to which they were not parties ought not to prejudice them, the sale being a together to their satisfaction. But it is not necessary to consider whether the pursuer could state a relevant case for reduction of the sale in toto. The action in which he alone insists is for partial reduction, to the effect of having the subjects declared to be his at the upset price. To support this demand it appears to me quite insufficient and irrelevant to allege that the competing offerer was one of a body of trustees by whom the subjects were exposed to sale.
The averment, however, is made alternatively, and John Fairweather is alleged to have acted on the instructions, and on behalf “of the mid trustees, the exposers, or of David Fairweather, one of the exposers; or otherwise in collusion with the said exposers, or at least with the said David Fairweather;” and the alternative thus set forth is maintained to be a sufficient statement that the competing offers at the sale which prevented the pursuer getting the subject at the upset price were made for behoof of the trust-estate and of the beneficiaries, add that the remedy which the Court afforded in the case of Faulds is no less applicable to the present case thus viewed.
There can be no question that a person holding a situation of that is legally debarred from being himself the purchaser of subjects vested in him as trustee. Those interested in the trust will be entitled to have the sale set aside that the true value of the subjects may be realised for their behoof at a sale of the subjects to bona fide purchasers. And therefore those trustees who exposed the subjects in this case could not become joint-purchasers as individuals without the risk of their purchase being set aside by the parties interested in the trust. It is a different question whether their act in authorising a third party to bid at the auction for them entitles a competing offerer to the remedy given in the case of Faulds, on the footing of the offerers in this view being in the same position as the trust beneficiary himself. Assuming that the purchase was for their joint behoof as individuals, the case must fail for the same reasons as have been stated against the relevancy of the statement that only one of their number was the offerer. To give even the semblance of relevancy to the case, the identity of the trust-estate and the trust-beneficiaries with the trustees in this act of theirs which is to have such effect, must be made matter of clear and unequivocal averment. Now, (1) not only is the fact of the exposers having anything to do with the appearance of John Fairweather and his doings at the sale, always put alternatively “the said exposers, or at least the said David Fairweather one of the exposers,” which in itself is objectionable in such a case as this; but (2) there is not throughout the record any averment to the effect that the trustees did instruct John Fairweather to act as he did at the sale, as trustees, and as acting for the trust beneficiaries, whose interests were so deeply involved in the proceedings at the sale being regular and lawful. And while the statement in the
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Then, as regards the conclusions for damages, I do not see any relevant ground on which the proposed issue can be granted. In so far as regards the defenders, the exposers, it is clear that no ground for damages is within this record, if I am right in the view of it I have taken. And as to the defenders, the two Fairweathers, individual liability by them, or either of them, to the pursuer must rest upon some wrong or injury clone or suffered through their act. But I do not find any such specific wrong or injury stated against the Fairweathers, or either of them, to support the pursuer's claim. I can imagine a claim of loss and damage, supposing a relevant action for total reduction of the sale being successfully maintained by the pursuer, being competent at his instance against these defenders. And were the sale totally set aside, the trust-beneficiaries might have a claim for loss caused by their wrongous act. But for the claim made in this summons I see no good relevant ground.
On the whole, I think this action should be dismissed.
The other Judges concurred.
The action was accordingly dismissed.
Solicitors: Agent for Pursuer— James Webster, S.S.C.
Agent for Stratton's Trustees— W. Burness, S.S.C.
Agent for John Fairweather— J. Henry, S.S.C.