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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gilpin v. Martin and Others [1869] ScotLR 6_518 (25 May 1869)
URL: http://www.bailii.org/scot/cases/ScotCS/1869/06SLR0518.html
Cite as: [1869] SLR 6_518, [1869] ScotLR 6_518
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SCOTTISH_SLR_Court_of_Session
Page: 518↓
Court of Session Inner House First Division.
v.
Facts:
Terms of disposition which held to constitute the disponee a disponee in trust for his children, and so to render invalid a disposition by him of the property to another party twenty-seven years after.
In 1839 Thomas Jardine, proprietor of a heritable subject in Lochinavar, “in consideration of a sum of £30 paid to him by Christopher Smyth, writer in Dumfries, for behoof of the party after-mentioned, as the price of the said subject, of which price I hereby grant the receipt, and discharge the same for ever; have sold and disponed, as I hereby sell, alienate, and dispone from me, my heirs and successors, to and in favour of John M'Vitie, for behoof of Agnes, Sarah, and David M'Vitie, three of his children, and to their heirs and should any of them decease without lawfu heirs of their own body, the survivors or survivor shall succeed to the deceased's part, share and share alike; and as the purpose of making the purchase is to build upon the ground purchased, which will require advance of money, with power to the said John M'Vitie, so long as the youngest of his said three children is a minor, but not afterwards without their consent, to borrow money and grant bond and security over said property for meeting the expense of the buildings intended, and under the other conditions after-mentioned, all and whole,” &c., “and I hereby make and constitute the said John M'Vitie, for behoof of his children foresaid, and them and their heirs and successors, my cessioners and assignees, not only in and to the whole writs, evidents, and titles, and securities of the said subjects, with all that has followed, or competent to follow thereon, and without prejudice to the said generality; in and to a disposition,” &c., “that in virtue thereof infeftment may take place to and in favour of the said John M'Vitie for behoof of his said children, or in names and favour of the children themselves, are in both their names, the one without prejudice of the other, as use is; but also in and to the rents and profits thereof, from and after the said term of entry, declaring further that the purchase so made for behoof of the minors, notwithstanding the power of management and negotiation of the father, and this further condition, that if needful for his own personal sustenance the free annual produce of the said subject during all the days of his natural life, or so long as he may require the same, the said rents and profits not being attachable by any of his personal creditors by arrestment, or otherwise; and having herewith delivered the said deeds to the said John M'Vitie, I consent to the registration thereof,” &c.
John M'Vitie erected various buildings on the said property, and during his lifetime be collected the rents and took the full management of the property. He died in 1866. Shortly before bis death he disponed the property above-mentioned to John M'Vitie Martin.
Sarah M'Vitie or Gilpin, one of the persons named in the disposition of 1839, now brought this reduction of the disposition of 1866, pleading that “John M'Vitie not being the proprietor of the inclosure of ground conveyed by him in said disposition and settlement, but merely trustee for the female pursuer and the other disponees, he was not entitled to convey, dispose of, or in any way affect her share or interest in said inclosure.”
The defender contended that the deed of 1839 was revocable and had been revoked.
The Lord Ordinary ( Manor) assoilzied the defender, holding that, notwithstanding the terms
Page: 519↓
in which the title was taken by M'Vitie in 1839, the substantial right and control of the property remained in him, and he was entitled to revoke, and did revoke, the deed of 1839 by the deed of 1866. The pursuer reclaimed.
Scott for reclaimer.
Asher for respondent.
The Court unanimously reversed.
I consider the disposition by Thomas Jardine to John M'Vitie, dated 6th July 1839, to constitute a trust in the person of the latter on behalf of his children therein named. And this deed received all the delivery of which it was susceptible—viz., delivery to M'Vitie, the trust-disponee. This has not been sufficiently adverted to by the Lord Ordinary. And the point is one in which the present case differs materially from those of Balvaird and Hill, quoted to us; for in these cases the deed was not taken in favour of the father, the receiver, but of a third party, to whom no delivery, either actual or constructive, ever took place.
This trust-disposition remained in the possession of John M'Vitie from July 1839 to the time of his death in February or March 1866. A short time before that event he executed a disposition and settlement, by one of the clauses of which he disponed the subjects contained in the deed of 1839 to the defender Martin.
The pursuer, Sarah M'Vitie, cannot challenge this deed, on the ground of its being executed on deathbed; for she is not the heir of the granter, nor in any view more than a beneficiary under the deed inquestion. But she maintains the further plea, that the deed of 1839 constituted an irrevocable trust in her father's person for her behalf, and that on that account he could not competently or effectually convey the subjects away to her prejudice.
I do not intend to decide that a case may not occur in which a deed taken by a father to himself, as trustee for his children, will be revocable, or capable of being discharged by him, notwithstanding delivery to him in that capacity. It would be a strong thing to affirm that a father, intending a gratuitous benefit to his children, embodied in this form, was in all circumstances debarred from changing his mind, and destroying or discharging the deed. But, looking to the very peculiar terms of this deed, and to the long period for which it remained a subsisting instrument in the father's possession, without any process of declarator, or other proceeding to establish the contrary of what the deed bears. I cannot safely hold that, in a question between the father and his children, this was in the position of a mere gratuitous deed, revocable at any time. On the contrary, I think the legal character which must now be affixed to the deed is that of an irrevocable trust. The prima facie character which it hears to this effect cannot, I think, now be taken from it, with safety either to the law, or to the just interests of the parties.
I would only add, that I have great doubts whether a deed like tbis, constituting, as it did, the father's only title to the subjects, could, even if revocable. be competently revoked and discharged by merely granting a disposition to a third party, inconsistent with the terms of the trust. But it is unnecessary for me to decide this question; for, on other grounds, I come to the conclusion that the father's mortis causa settlement must be regarded as not an effectual revocation of the trust of 1839, but an ineffectual attempt to frustrate that trust.
Agent for Pursuer— W. S. Stuart, S.S.C.
Agents for Defender— Maconochie & Hare, W.S.