Scottish Court of Session Decisions

About the year 1844 George Ogg, feuar, Turriff, Aberdeenshire, married Jean Abercromby Rannie, daughter of John Rannie, baker in Turriff. She died in 1851, and in October 1852 he went through a form of marriage with her sister Alexina, who lived with him as his wife until her death, intestate, upon 19th June 1875.

In March 1889 William Ross Rannie, wholesale confectioner, Penn Yan, New York, was duly served heir to the said Alexina Rannie as being the eldest son of her deceased brother William Rannie, and in February 1890 brought an action of proving the tenor against the said George Ogg to have it found and declared that “the defender, the said George Ogg, executed a disposition in favour of the now deceased Alexina Rannie, daughter of John Rannie, sometime baker in Turriff aforesaid, of date the 1854, and that the said disposition was of the following tenor, videlicet:—‘I, George Ogg, feuar, residing in Turriff, Aberdeenshire, for the love, favour, and affection which I have and bear to Alexina Rannie, daughter of John Rannie, baker in Turriff aforesaid, have disponed, as I hereby alienate and dispone, from me, my heirs and successors, to and in favour of the said Alexina Rannie, her heirs and assignees whomsoever, heritably and irredeemably, All and Whole that piece of ground lying within the town of Turriff and county of Aberdeen, and on the west side of the new square of the said town of Turriff, bounded as follows, videlicet:’—[here follow the boundaries]—‘and I oblige myself to infeft the said Alexina Rannie and her foresaids, to be holden a me vel de me, and I resign the said lands and others for new infeftment, and I assign the writs, and have delivered the same, according to inventory, and I assign the rents, and I bind myself to free and relieve the said Alexina Rannie and her aforesaids of all feu-duties, casualties, and public burdens, and I grant warrandice, and I consent to registration hereof for preservation; moreover, I desire any notary to whom these presents may be presented to give to the said Alexina Rannie or her foresaids sasine of the lands and others above disponed.—In witness whereof,’” &c.

The pursuer averred that “In or about the year 1854 the defender, who was then heritable proprietor of the subjects described in the summons, conveyed the said subjects to the said Alexina Rannie. The disposition or other deed of conveyance granted by the defender in favour of the said Alexina Rannie was delivered by him to her.” Further, that the defender was examined upon commission as a haver in an action at the instance of the pursuer against him for delivery of the said disposition or other deed of conveyance, and deponed that the deed was in his possession about fifteen years ago, that he then destroyed it by burning it, and that he had no copy or draft of it. That the pursuer had been unable to ascertain by whom the said disposition was prepared, or to discover any copy or draft thereof, and that he believed no copy or draft thereof was now extant, and consequently that it was necessary in order that his right of property in the said subjects might be established that the tenor of the said disposition or other deed of conveyance should be proved.

The defender explained that the deed referred to in said deposition as having been destroyed was an unstamped and undelivered deed of settlement by him, containing provisions in favour of the said Alexina Rannie, and that there was no draft or copy of the kind alleged in existence, and that no such principal, copy, or draft did at any time exist.

The defender pleaded, inter alia—“(2) No written adminicles being libelled on for proving the tenor of the alleged disposition, the action should be dismissed. (3) The disposition libelled never having been in existence, the defender should be assoilzied.”

The Lords of the First Division, to whom the Lord Ordinary ( Kinnear) made avizandum of the cause, closed the record, and thereafter pronounced the following interlocutor:—“Before answer as to the sufficiency of the adminicles and of the casus amissionis, allow the pursuer to prove the tenor of the writ libelled on and the casus amissionis thereof, and allow the defender a conjunct probation thereanent, and for that purpose grant commission.” …

The best and almost only material evidence for the pursuer was that of Alexander George (52), who deponed—“I am a solicitor at Macduff, and provost of that burgh. I remember having a call from the pursuer along with M'Lennan, a friend of his, on 10th December 1888. … Shortly, their object was to take steps for the recovery of the property which is the subject of this action. I had no recollection of the transaction in which I had been engaged in 1875 beyond the fact that there had been one, and I arranged that they should call for me next day. They did so. They both called. Before they called I had looked up my ledger, and some of the facts and circumstances were brought to my mind in consequence, and they gave me their story of what had taken place in 1875… . Going back to 1875, I remember having a call during that year from Alexander Rannie, the pursuer's uncle, with reference to this same property. I have looked up an account which stands in my business books, and which was rendered to Mr Ogg in connection with what was done then, and have by that means refreshed my memory of what took place. Alexander Rannie called first on 2nd July 1875. He

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brought those titles I have now produced along with the disposition by Mr Ogg conveying the property covered by these titles to Alexina Rannie. His sister Alexina Rannie had died shortly before that, and he wished to know who would succeed to this property in respect of his sister's death. I said that on the statement he made to me my opinion was in favour of the heir-at-law—Alexina Rannie's heir-at-law. Alexina Rannie had left children, and Alexander Rannie wished the property to go to her children, and my duty was to prepare a deed in favour of the children in respect of this disposition in favour of Alexina Rannie; and in consequence the titles were left with me that I might consider the matter…. My advice was, that in my opinion Alexina Rannie's heir-at-law had right to the property, but that if Mr Ogg was to take the risk of that, I thought he should just put a warrant of registration upon his disposition [ i.e., a disposition by Mr and Mrs Rannie in his favour dated 6th December 1849], in his own favour, and record it, and be infeft. (Q) And what was to happen to Alexina Rannie's deed?—(A) It would just be laid aside. (Q) Was that advice taken by Mr Rannie and Mr Ogg?—(A) Yes. I received instructions to put on the deed a warrant of registration, which I did, and which you will find on the disposition in favour of Mr Ogg. He did more than that at this time. He then instructed me to prepare a settlement. I did so. He signed it on 28th July 1875. I have the draft here. The testing-clause is not in. Referring to business account, I find I wrote him on 28th July to come and sign the settlement. I do not find a meeting signing it, but I know it was signed. I am aware that it was executed about that time and that it was delivered to them. Generally that settlement is in favour of Ogg's children by Alexina Rannie. I cannot tell who was Alexina Rannie's heir-at-law at that time.” Cross.—“(Q) Tell me as precisely as you can the nature and terms of the deed by the defender in favour of Alexina Rannie?—(A) I could not tell the terms of the deed. All I know is this, that I have a distinct recollection that I advised that in my opinion the heir-at-law had a claim. Consequently I can only say I was satisfied it was a valid deed, otherwise I could not have given the advice that the heir-at-law had a claim to the property. (Q) Can you give us the date of the deed?—(A) I have no recollection of the date of the deed. (Q) In the second place can you inform us who the witnesses were?—(A) Not at all. (Q) In the third place can you tell us who the solicitor was who drew the deed?—(A) No. (Q) Do you recollect whether there was one name in the testing-clause? —(A) I do not recollect anything of the deed beyond the fact that I can tell that I was satisfied at the time that the deed was valid, and effectually conveyed the property to Alexina Rannie. (Q) Do you recollect if it was a Scotch-drawn deed?—(A) I would not like to say, but I have a hazy notion who drew the deed; but I could not say it with any certainty, for that might come from seeing the name of the drawer of this other deed, the conveyance by the Rannies to Ogg—James Horn. I cannot say when James Horn died. He was not alive when I started in Macduff. He had been a writer in Macduff. I don't think anybody in particular succeeded to his business. (Q) Why do you say that it was a valid deed?—(A) I just say that it was a valid deed, and hence my advice—my opinion—that the heir-at-law was entitled to the property, and not George Ogg. … (Q) Can you tell me why you were so satisfied?—(A) Just upon the information submitted to me by looking at the deed, and upon information submitted to me by Alexander Rannie. (Q) Will you tell me what information was submitted to you by Alexander Rannie?—(A) That this deed was given by Ogg to this Alexander Rannie's sister, who lived with him as his wife, as a consideration for her—as a provision for her; and more than that, was given to her as a provision for her, and that the deed was handed over to her and was in her possession, and it was on that information that I gave my opinion. (Q) Was the deed stamped?—(A) I will just answer that question as I did all the others—it must have been stamped, otherwise I would not have had the opinion that I had.”

The defender deponed—“(Q) Was a deed in favour of Alexina made out by a lawyer?—(A) I could not say. It was John Rannie that got it done. I suppose it had, but I do not know. I do not know whether he got it done in Scotland or in London. He brought me the deed written out. It was ready with a stamp on it. I could not describe it in words altogether; but it was made out for her and her heirs and successors, and I would not sign it. I wanted it to be just for her use after my death. I refused to sign it, because I thought it was made out in a way that she could take it if she liked, and turn me out of the place altogether. I explained to John Rannie that I would not sign it because of its terms. It was arranged that another deed should be got… . (Q) What instructions did you give about the form the second deed was to take?—(A) Simply that it was to be a provision for her at my death. (Q) What did you mean exactly by ‘at your death?’ Do you mean a provision after your death?—(A) For her after my death. (Q) Do you mean in the event of her surviving you?—(A) Yes. John Rannie brought the second deed to me to sign. I was satisfied with its terms and I signed it. (Q) Was it a deed by a lawyer?—(A) I think it was—the same as the first. I cannot recollect the terms of it. It was with the view I have mentioned that I got it made and signed it—for her behoof after my death. (Q) Did you understand it carried out the object that you had in view—to provide for Alexina in the event of her surviving you?—(A) Yes. … (Q) Was there any discussion between you and Alexander and Mr George as to whether the deed in favour of Alexina was a good deed, and carried the property away from you to Alexina's heirs?—(A) It was never

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mentioned. During my presence with Mr George the only thing was to give him instructions to make out a will in that form, and that was the only conversation we had on the subject. That will was made out. (Q) Did you receive back the deeds from Mr George at the date of signing the will, or when did you receive them?—(A) There were some I brought home with me, and one I never got back. That was the title by the Rannies in favour of me. That deed had not been registered, and he registered it in favour of me, and he happens to have kept it till now. I got the older deeds home again. The deed in favour of Alexina was not among them; it was destroyed before I went to Mr George to get the will made out. (Q) Are you quite sure about that?—(A) Yes. (Q) Are you quite sure it was not destroyed after you got the deeds back again from Mr George? —(A) Yes. (Q) You say you are quite sure of that?—(A) I am sure it was before. I did not take it to Mr George, and it must have been destroyed before going there. (Q) Was it you who destroyed it?—(A) It was by my orders. I considered it was of no value after she was dead. (Q) Can you tell me who it was that actually destroyed it? —(A) It was my little boy—a son of Alexina. It was the one that is dead. He was the younger, the other one was at Aberdeen at the time. (Q) Did you burn it, or tear it up? —(A) It was torn up. (Q) What became of the pieces?—(A) They were burned, of course. I considered it was of no value after she was gone. (Q) Did you see the pieces burned?—(A) I am sure I do not recollect now; but it was destroyed. (Q) Did you see it torn up?—(A) Yes.”

It was argued for the pursuer—The defender had admitted that a deed in favour of Alexina at one time existed and had been destroyed by him, although he refused to admit that it was an absolute disposition in her favour. As she lived with him as his wife, the deed although delivered would necessarily remain in the house, which rendered proof of such delivery well nigh impossible. Everything must be presumed against a granter who made such an admission. Here also there was the distinct evidence of a solicitor conversant with such deeds, who had seen and examined the one in question for the purpose of giving a legal opinion upon it, to the effect that it was absolute in its terms. As to adminicles, see Stair, iv. 32, 9; Ersk. Inst. iv. 1, 55. They might be dispensed with where their existence was not to be expected— Ogilvy v. Napier, 1612, M. 15,786; Lithgow v. Murray, 1680, M. 15,799; Earl of March, 1743, M. 15,820; A v. B, 1749, M. 15,823; Winton & Company v. Thomson & Company, June 10, 1862, 24 D. 1094; or where the obligant under the deed had destroyed them— Ritchie v. Ritchie, June 10, 1871, 9 Macph. 820. This case came under both categories. As to the casus amissionis see Winchester v. Smith, March 20, 1863, 1 Macph. 685. [By the Court—What use could you make of the document in the summons, which is without testing clause, subscription, or witnesses, even if its tenor were held proved?] A declarator in an action of adjudication and implement might be brought, but that would be a matter for future consideration—see Falconer v. Stephen, 1848–49, 11 D. 220 and 1338. There too an admission of destruction although qualified was considered apart from its qualification.

Counsel for the defender was not called upon.

At advising—