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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cook v. Cook and Others [1882] ScotLR 19_373 (1 February 1882)
URL: http://www.bailii.org/scot/cases/ScotCS/1882/19SLR0373.html
Cite as: [1882] SLR 19_373, [1882] ScotLR 19_373
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SCOTTISH_SLR_Court_of_Session
Page: 373↓
Court of Session Inner House Second Division.
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v.
Facts:
A truster in 1858 by a mortis causa deed conveyed his estate to trustees with directions to sell. The settlement was in form ineffectual to convey heritage, but the truster's heir conveyed the heritage to the trustees for the purposes of the trust-deed, giving them merely a power of sale. Held, in a question arising subsequently to the heir's death between the heir and a singular successor in the heritage who had acquired it from the trustees, that
Page: 374↓
the estate having been converted by the truster, and that conversion being unaffected by the terms of the heir's subsidiary conveyance, the heir-at-law had no title to sue a reduction of the deeds of conveyance to the singular successor.
Finlay Cook, who at one time resided in Liverpool and subsequently in Arran, died leaving a will dated 13th July 1841, whereby he appointed his brother Alexander and certain others his executors and trustees, and directed them, or the survivor of them, to sell and dispose of his estate either by public auction or private contract, as they or he should think necessary, and call in and receive all such debts or sums of money as should be owing to him at his death, and place the money arising by such sale, and money so called in, on good and sufficient security, to be applied to the maintenance and education of his son and daughter, Archibald and Mary Cook. Finlay Cook was survived by three children, viz., the said Archibald and Mary Cook and Finlay Cook junior, who died intestate in 1863. This will was expressed in such a manner that it did not in the Scottish form convey heritable estate. Accordingly, Archibald Cook, as his father's heir-at-law and eldest son, executed on 27th March 1858 an assignation whereby, on the narrative that his father had not validly conveyed the heritable property in Scotland belonging to him, and that he was willing to supply this defect so far as lay in his power, he conveyed to his father's trustees and the survivor of them, in trust always for the ends and purposes mentioned in the last-mentioned will and testament of his father, and not otherwise, and with power of sale to the trustees if by them considered necessary, his whole right and interest in the Scottish heritage which had belonged to his father, viz., certain leasehold subjects therein contained. Archibald Cook died on 20th March 1865 intestate, and survived by his widow and by three sons and two daughters, and thereafter the beneficial interest in the leasehold property came to be vested in his sister Mary Cook and his children in equal shares, the rents of which continued to be duly collected by the trustees. On the death of the said Alexander Cook, who was one of Finlay Cook's trustees, the sole surviving trustee, the Reverend Archibald Nicol, entered into a negotiation with Mary Cook in pursuance of an alleged family arrangement. By an assignation dated 27th day of June 1867 he conveyed to her the one-half pro indiviso of these subjects in which Archibald's children were interested, in consideration of a sum of £43, 6s. 8d., which in cumulo amounted to £350 sterling, as the value of his share of the said leasehold subjects, which had been valued at £700, paid to him as trustee in cash, and further in consideration of a discharge of debts alleged to be due by the trust to Mary for money advanced to her brother Archibald, and stated to have been vouched for to the trustee's satisfaction. Thereafter on 30th May 1873 Mary Cook, through her factor and commissioner, conveyed the subjects to Mrs Blair, residing in Saltcoats, at the upset price of £650.
The present action was raised by David Cook, residing in the island of Arran, as eldest son and heir-at-law of the deceased Archibald Cook, against Mrs Blair. In it the pursuer sought to have reduced (1) the assignation dated 27th June 1867 in favour of Mary Cook; (2) the conveyance by the latter to Mrs Blair dated 30th May 1873; and (3) he sought to have his right declared to the leasehold subjects conveyed in these deeds.
He pleaded—“(1) The pursuer being proprietor of the whole, or in any view of one-half, of the said leasehold subjects, is entitled to decree in terms of one or more of the conclusions of the summons. (2) The defender having purchased in the knowledge of the pursuer's rights, and of the fact that the seller had no title, the pursuer is entitled to decree as concluded for.”
The defender replied that though Finlay Cook's will did not carry the leasehold subjects in question in respect of its lacking sufficient disponing words, yet that Archibald had ratified it by his assignation in 1858, and that thereby the subjects were vested in the trustees. Further, the direction to sell if “they shall think necessary” which was contained in the will operated conversion of the leasehold into moveable estate, so far at least as regarded the beneficiaries under the will. Further, that any right which the pursuer might have was a right to call the said Reverend Archibald Nicol or his representatives to account.
He pleaded—“(1) The pursuer has no title to sue. (4) The deeds sought to be reduced having been granted for just and onerous causes by persons in titulo to grant the same, the defender is entitled to absolvitor from the whole conclusions of the summons.”
The
His Lordship's opinion was as follows:—“Finlay Cook, the pursuer's grandfather, left a will, dated 13th July 1841, purporting to dispose of his whole estate on trust for sale and division of the price. The will being in point of form insufficient to convey heritable estate, the defect was supplied by the deed of his son and heir Archibald, who on 27th March 1858 conveyed the heritable leasehold property possessed by his father to the trustees in trust for the uses and purposes of the will. On the death of Archibald and his brother Finlay Cook junior the beneficial interest in the leasehold property came to be vested in his sister Mary and Archibald's children in equal shares. In pursuance of an alleged family arrangement, the surviving trustee, by the first of the deeds libelled, conveyed to Mary the one-half pro indiviso of these subjects in which Archibald's children were interested, in consideration of a sum of £43, 6s. 8d. paid to the trustee in cash, and of a discharge of debts alleged to be due by the trust to Mary for money advanced to her brother Archibald, and stated to have been vouched to the trustee's satisfaction. By the third deed libelled, Mary Cook, through her factor and commissioner, conveyed the subjects to the defender. The pursuer claims the one-half of the property derived from his father, on the ground of inadequate consideration, and that the trustee was not entitled to sell.
“As already stated, Finlay Cook's will contained a trust or direction to sell, and his son's conveyance in implement was a conveyance for this trust, the power of sale being ancillary to the direction contained in the regulating deed. By the effect of the trust for sale the property was, in my opinion, constructively converted from heritable to moveable; and the right to challenge
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The pursuer reclaimed, and argued—He was entitled to sue as his father's heir-at-law, and to reduce the sale of the leasehold property in question. The trustee had no right to convey it away to his prejudice. It was said that the property was constructively converted from heritable to moveable, and that thereby the right to challenge the exercise of the power of sale was vested in the trustee's personal representatives; but (1) the clause in the deed of 1858 was a mere power given to the trustees to sell if they thought necessary, and could not of itself operate conversion— Auld v. Anderson, &c., Dec. 8, 1876, 4 B. 211; and (2), even if it could have that effect, the fact that Archibald survived his father, and treated his share of the heritage for years as heritage, drawing the rents therefrom, operated re-conversion— Grindlay v. Grindlay's Trustees, Nov. 9, 1853, 16 D. 27.
The defender replied—The pursuer had no title to sue. Any right of challenge was alone vested in the trustee's personal representatives. The deed of 1858 executed by Archibald was not an alteration on, but in aid of, his father's informal deed. It contained a distinct power of sale, if the trustees thought necessary, which operated constructive conversion of the property from heritable to moveable. No limitation was made on this power by the words “if they thought it necessary.” But further, there was a bona fide sale of the subjects granted by the trustee, who was vested in them at the time, and the disponee was thus able to give the defender a good title. If action was to lie against anyone, it was not, then, against the defender, but against the trustee.
At advising—
I do not think the purchaser has any concern with whether the trustee got the £350, or whether he simply gave credit for it, or in what shape he took it; but the trustee sold the property and conveyed it to Mary Cook, and is thus put in the position of being liable as a trustee to an action for £350 at the instance of the beneficiaries under the trust.
Therefore I am of opinion that the purchaser here has a good title, and I should, for my own part, be rather disposed, instead of simply resting our judgment on the plea sustained by the Lord Ordinary, further to sustain the defences, repel the reasons of reduction, and assoilzie the defenders from the conclusions of the action.
The grandfather's settlement not being effectual to affect heritage in Scotland in 1858, his son Archibald ratified this settlement and then died in 1865 intestate. Archibald's father was possessed of certain leasehold subjects, which in his settlement he conveyed to his trustees to be sold in order that the proceeds should be divided among the beneficiaries named in the deed. The effect of this direction as ratified by Archibald appears to me to be that this property was constructively converted from heritage into moveables, and the heir-at-law would have been cut out. That would certainly have been the effect of the grandfather's will if it could have affected heritage. But it is said that the grandfather's will was incapable of affecting heritage, and although it was apparently validated by Archibald's subsequent deed, still it was not validated to the full extent, as the power of sale was limited in that deed to the case of the trustees thinking a sale necessary. I concur with your Lordship that the deed of 1858 put no limitation on the powers or duties of the trustees. It bears to be granted that the trustees of the grandfather might carry out the ends, uses, and purposes of his will, and although the power of sale is stated to be “if thought necessary,” I do not think that alters or limits the provisions of the grandfather's will. The deed is expressly stated to be in aid of the directions in the will of 1841. That is sufficient for the decision of the case, and it is not necessary to say more; but we have had an argument on the other pleas, and like your Lordship I am quite ready to pronounce judgment on them also.
If we are to take the pursuer's own interpretation of the deed granted in aid, I would still hold that there had been an exercise of the power of sale.
In the next place, the pursuer says—“If there was a bona fide sale, then it is all right, but when the disposition to Mary Cook is looked at it is evident there was no sale.” I think there was a sale, and the disposition having been granted by the trustee vested in the subjects at the time, the disponee was able to give the defender Mrs Blair a good title. I therefore concur with your Lordship
Page: 376↓
The
The Lords therefore recalled the interlocutor of the Lord Ordinary, sustained the defences generally, and assoilzied with expenses.
Counsel for Reclaimer—Solicitor—General ( Asher, Q.C.)— M'Kechnie. Agents— Robert Emslie, S.S.C.
Counsel for Respondent— Trayner— Jameson. Agents— J. & J. Ross, W.S.