Scottish Court of Session Decisions

Lord Deas—In so far as this case is rested on written probative missives, I am clearly of opinion that on the face of these missives there was no concluded bargain. The offer of 11th May 1870 stipulates for a clear and good title. The answer of the 12th May says—“As we know of no incumbrances on the property, no search will be given; and you must take the title on that footing, or there is no bargain.” It is plain that these missives do not meet one another. The acceptance is qualified by a material condition, which is never accepted by the offerer. Clearly there is no legal proof of a written bargain. There is another objection equally conclusive, the want of concurrence of the husband of one of the ladies. It is not necessary to determine whether that concurrence could be proved by the oath of the whole pursuers. Counsel of the defender took time to consider whether he should amend the reference to oath, and declined to do so. The minute of reference, as it stands, contains no reference to Miss Cowan's oath. Suppose it was ever so competent to prove Mr Dickson's by the oath of the pursuers, it cannot be proved by the oath of him and his wife. This was a bargain for the sale of both pro indiviso halves of the property, not for either of them separately. How is Miss Cowan to be bound by the oath of Mr and Mrs Dickson? This is conclusive without entering into the general question, whether the consent of the husband can be proved by oath. The question of rei interventus does not arise. It is not a verbal bargain that is alleged. Even if it were, there is no relevant rei interventus averred. All that the defender avers, are some arrangements with the tenant, which cannot affect the landlord.

Lord Ardmillan—The question raised relates to the sale of the whole heritable subjects held by two sisters—not the sale by either sister of her half. The first question is, whether there was a completed transaction. I have come to the conclusion that there was not. The second question is with regard to Mr Dickson's concurrence. I think that the consent and concurrence of the husband, in so far as regards the disposal of his wife's interest, is clearly necessary, and must be given at the time. This is an attempt to prove post tantum temporis the concurrence of the husband otherwise than by writing. And it is proposed to make this binding on both ladies. I cannot see how Mr Dickson's oath can bind Miss Cowan. In the next place, I think there is no verbal contract to which rei interventus can be applied as excluding locus pœnitentiœ. This is not a verbal contract—it purports to be a written contract. If its defects could be supplied by rei interventus, it must certainly be rei interventus of the clearest character, and plainly referable to the faith of the contract. None such is here averred.

Lord Kinloch—In this case it lies with the defender to make good, in opposition to the general title of the pursuers, that a valid contract took place under which he acquired right to the subject in question in the character of purchaser.

The case as stated by him is not one of verbal contract, followed by rei interventus. It is an alleged case of written contract. He produces certain written documents, which he alleges constitute the contract. With reference to the objection that one of the contracting parties was a married woman, and that her husband had not adhibited his concurrence, he offers to prove by the oath of Mr and Mrs Dickson that the husband did in reality consent.—“Black, for the defender, stated that he hereby referred to the oath of the pursuers, John Dickson and Mrs Jane Cowan or Dickson, the question, Whether the said pursuer, John Dickson, consented to the missive No. 10 of process?”

In this state of things I consider myself freed from the necessity of considering how matters would stand if the alleged case were one of verbal contract, followed by rei interventus. The defender has entirely excluded himself from the condition of one who stands on such a case. It is settled and trite law that a verbal contract concerning heritage, intended to be set up by rei interventus, cannot be proved by parole evidence, but must be established by oath of party. The defender does not offer to prove a verbal contract by the oath of the pursuers. His minute of reference is strictly confined to the matter of concurrence in a written deed produced. Even therefore had a verbal contract been averred, it is not offered to be proved by the only competent evidence. It is only in combination with proof of the contract by reference to oath that proof of rei interventus is admissible. The rei interventus may itself be proved by parole evidence. But there is no room for such evidence unless the verbal contract is established by reference to oath. The defender, doubtless for sufficient reasons, has made no such reference.

The question then arises, whether there is here any written contract, either sufficient in itself or capable of being made so by the establishment of Mr Dickson's concurrence through means of a reference to oath? I am of opinion there is none such.

In the first place, I think the written documents show that no concluded contract of any kind ever passed between the parties. The defender's offer of 11th May 1870 expressly set forth as one of the conditions of the bargain, “you giving a good and clear title.” The answer by the pursuers of 12th May stated, “as we know of no incumbrances on the property, no search will be given; and you must take the title on this footing, or there is no bargain.” This was an express declinature of one, and a very important, part of the defender's offer. It is not shown that the defender ever agreed to this altered proposal. The reverse seems proved by his letter to Mr Lee of 8th June 1870, written after parties had come to be at variance; in which he says, “I have no other offer to make, which offer is dated 11th May 1870. Misses Cowan's title must be in accordance with my offer of 11th May 1870.” The parties therefore never came to a concluded agreement. And in this view it is immaterial to inquire whether Mr Dickson's concurrence can now be established by the proposed reference. For, supposing it to be established never so clearly, there was still no concluded contract, and the defender's case fundamentally fails.

But secondly, and independently of this circumstance, and assuming that the writings showed on their face a concluded contract, I am of opinion that the contract is null for want of Mr Dickson's concurrence in his wife's act, and that this concurrence cannot be established by means of reference to oath. The concurrence of the husband was not of the nature of a consent by a third party interested, taking away a personal objection. It was essential to the act of the wife, which without such concurrence was null. The writing without such concurrence operated no legal effect. I am of opinion that the concurrence was as necessary to be given in writing, as the wife's own agreement. I do not inquire whether it required to be adhibited at the time of the wife's subscription, or might be expressed subsequently. I do not pronounce on the point. At whatever time given, I think it was indispensable it should be given in writing as much as the wife's own signature. And if so, I think the want cannot now be supplied by a reference to oath. It is trite that a contract as to heritage must be expressed in writing, or else there is locus penitentiœ. If the written contract wants an essential party, there is in the eye of the law no writing at all, and locus penitentiœ remains. I consider this to follow from the essential principles of our law in regard to contracts as to heritage. The want of Mr Dickson's concurrence, expressed in writing, I conceive to operate as a fatal flaw in the contract, wholly incapable of being rectified by any reference to oath.

I am therefore of opinion that Mr and Mrs Dickson are not bound in any legal contract to the defender, and cannot be brought under an obligation by means of the proposed reference to oath. And I think the Lord Ordinary is clearly right in holding that Mr and Mrs Dickson not being bound, Miss Jessie Cowan is not more bound than they. For the proposed sale was not of separate pro indiviso shares, but of the whole subject; and if there is no contract as to one of the proprietors, it is an incomplete contract as to the others. Miss Jessie Cowan may have other pleas besides this; but into these I do not now enter, because I think this consideration is sufficient to support the judgment, as given in her favour, as well as that that of the other pursuers.

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