Scottish Court of Session Decisions

Lord President—I am disposed in this case to agree with the pursuers, and hold that they are entitled to immediate declarator of trust.

I think it is doubtful whether the statute applies, for to let it in the truster—the owner of the property who alleges that the property is held in trust—must have consented to an absolute title being taken in the trustee's name; then proof prout de jure is excluded. Now, here the only evidence that the absolute title was taken with consent of the truster—the owner—is to be found in the minutes of the company, who are the pursuers, and the pursuers being a company cannot speak through anything but their minutes. Now, there is nothing to say that these three directors are to have the lease in absolute terms, either in the deed or in any other writing. It is clear on the minutes that the lease was to be taken in names of these three directors, because the Crown would not give a lease to a company, and it is further stipulated that there should be a mutual deed by the lessees declaring the trust. The shareholders never accepted the lease on any other terms, and that arrangement is set forth in a report which was approved of by the shareholders.

But even if the statute applies there is abundant evidence to show that the arrangement was binding on this gentleman, and that under his own hand. I do not refer so much to the minutes and reports, because in one sense they may be said not to be under his hand, but to the agreement dated 27th March 1877, which sets forth as distinctly as possible that the Pant Mawr Slate and Slab Quarry Company (Limited) has, in the name of trustees for its behoof, acquired from the Crown the lease of all that tract or parcel of land, containing in the whole 207 acres or thereabouts, known as the Pant Mawr Quarry. Now, that is a probative instrument, tested as required in terms of the statute, and executed by the defender as a director. It is said that it is not executed by him as an individual, but that does not matter, as the authority was to take the lease as a director. Then we have another document, three years later, in the form of a letter to the liquidators of the company, signed by Mr Fleming among others, in these terms:—“We, the undersigned, are desirous that you should call a meeting (as early as possible) of the shareholders of the Pant M. S. & S. Quarry Company, Limited, to discuss the position of the company generally, and more especially to resolve whether or not the lease of the quarry should be renounced.” What the shareholders had to do with renouncing or not renouncing the lease it is impossible to say if they were not the lessees.

Further, this supposed lessee was never in possession of the quarry, whereas the Company has been working it, was constituted apparently to work it, and derives its name from it. I do not know that any evidence could be better in a declarator of trust, and I am therefore for decerning in terms of the conclusions of the summons.

Lord Deas—Putting the case in the most favourable light for the defender, and assuming that the case falls under the Statute 1696, c. 25, I am of opinion with your Lordship that there is ample proof to satisfy the requirements of that statute. That being so, I do not speculate as to whether the statute applies or not—a question which is sometimes complicated enough; on the simplest ground I am satisfied that the evidence is sufficient.

Lord Shand—I am of the same opinion. I think that there is sufficient proof of trust in the two documents founded on by the pursuer—first, the agreement of 1877, which bears that the lease was taken in trust for behoof of the pursuers; and second, the letter of 1880, which bears that the company were to resolve whether the lease was to be renounced; that could only be if Fleming was a trustee.

While I am of that opinion, I concur with your Lordship that the pursuer would not have been confined to a proof by writ or oath. This is one of a class of cases in which an agent is authorised to take a deed in one capacity and takes it in another, without preserving evidence of the trust. Mr Fleming was just such an agent, and therefore I think the pursuers would have been entitled to a proof of their averments.

I am of opinion that the case has been clearly made out on the writs, and that we should decern accordingly.

Lord Mure was absent on Circuit.

The Court recalled the interlocutor of the Lord Ordinary, and decerned in terms of the declaratory conclusions of the summons.