Scottish Court of Session Decisions

By a disposition and settlement executed in 1835, the late David Miller conveyed to his nephew, Mr Alexander Craig, and to his two nieces, Mrs Patrick and Mrs Evans, equally between them, and the survivor of them, his whole estate, heritable and moveable, and in particular a sum of £340 secured over certain house property in the New Wynd of Hamilton, by bond and disposition in security; and for the more sure payment of this sum to the testator's said nephew and nieces, the settlement contained a conveyance of the subjects themselves over which it was secured. In 1837 Miller, in virtue of the powers contained in the bond, exposed the subjects to sale, and they were bought at the price of £180 by his nephew Craig, who obtained a disposition from Miller, on which he was infeft. In 1839 Craig granted to Mrs Patrick and Mrs Evans documents in these terms:—“ Hamilton, March 12, 1839.—This is to certify that I do hereby renounce all claim upon that property in New Wynd of Hamilton, which formerly belonged to my uncle, David Miller, and which was bought in my name upon May 5, 1837. (Signed) Alex. Craig.” Thereafter, on 24th December 1839, Miller executed a codicil to his settlement, which he so far altered as to give his niece, Mrs Patrick, a liferent of his whole estate, but on the expiry of her liferent the fee was to go to Mrs Patrick, Mr Craig, and Mrs Evans, and the survivors of them equally.

In 1842 Mr Miller died, having remained in possession of the subjects in the New Wynd of Hamilton down to his death, when Mrs Patrick took possession, and continued to uplift the rents until she died in 1854. At that time Mrs Evans was in America, but she returned to this country in 1859. Mr Craig, after Mrs Patrick's death, took possession, and drew the rents of the New Wynd property until his death in 1869. Mrs Evans then raised the present action against Mr Craig's representatives, to have it declared that the disposition to him by Miller in 1837 was a conveyance in trust only, and that, under Miller's settlement she (Mrs Evans) was entitled to one-half of the subjects and the rents thereof from Mrs Patrick's death in 1854.

The Lord Ordinary ( Jerviswoode) having allowed a proof at large, thereafter pronounced this interlocutor:—“ Edinburgh, 28 th March 1871.—The Lord Ordinary having heard counsel, and made avizandum, and considered the debate, with the proof, productions, and whole process—Finds that the writing, No. 6 of process, and which is set forth in article 3 of the condescendence for the pursuer, is holograph of the deceased Alexander Craig, and that the same has relation to the heritable subjects to which the conclusions of the summons refer; finds that the true intent and meaning of the said writing is, that the granter thereof thereby renounced all claim upon the property of the said subjects, to the same extent and effect as if he had purchased the same for the direct behoof of his uncle, David Miller, named in the said writing; and finds as a consequence that the succession to the said subjects is regulated by the disposition and settlement executed by the said David Miller on 29th June 1835, and codicil thereto, dated 24th December 1839, both of which are set forth on the record; therefore sustains the pleas in law stated on the pursuer's behalf, and finds, declares, decerns, and ordains in terms of the conclusions of the summons; but as respects the conclusions for accounting, finds that the defenders are not liable to account for any sum or sums of interest under the same prior to the date of citation in the present action, and supersedes in the meantime consideration of the alternative conclusion in the event of the failure of the defenders to produce an account

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of intromissions; and further, reserves in hoc statu the question of expenses.

“ Note.—Questions of considerable difficulty have arisen here, as the Lord Ordinary anticipated as probable when he allowed proof under the terms of the interlocutor of 1st February last; but although the Lord Ordinary is still conscious of the delicacy of the matter in point of law, he has come with some confidence to the conclusion that the judgment now pronounced is in accordance with the true intent and purpose of the deceased Mr Craig in making the written renunciation set forth in the third head of the condescendence.”

The defenders reclaimed.

Watson and Guthrie, for them, contended that the proof allowed by the Lord Ordinary was incompetent, except to the extent of proving the authenticity of the document founded on by the pursuer. A declaration of trust could only be proved by the trustee's writ or oath; and although the document in question was in Mr Craig's handwriting, it did not amount to an acknowledgment that the subjects were held by him in trust either for David Miller or anyone else.

Solicitor-General ( Clark) and Rutherford, for the pursuer, maintained that the granting of the documents to Mrs Patrick and herself could only be explained consistently with the existence of a trust in Mr Craig for behoof of Miller during his life, and on his death for their behoof as beneficiaries under his settlement. The reason of the title being taken in Craig's name was that Miller as bondholder could not lawfully purchase the property after having exposed it to sale in virtue of the powers contained in the bond, but it was not proved that Craig paid the price alleged. Cases referred to— Duncan v. White, M. 12,761; Robson v. Bywater, 19 March 1870, 8 Macph. 757; Taylor v. Watson, 8 D. 400; Macfarlane v. Fisher, 15 S. 978, 23 May 1837.

The Court unanimously recalled the Lord Ordinary's interlocutor, and dismissed the action.

Their Lordships were of opinion that as this was an action of declarator of trust, the conclusions could only be proved by the writ or oath of the trustee. The writ here produced, though sufficient to meet the requirements of the statute, did not sufficiently instruct a trust for behoof of Miller. Lord Benholme was of opinion that a writ of declarator of trust must be delivered by the trustee to the person in whose favour it was intended to operate. In the present case the document had not been delivered to Miller, but to his two nieces.