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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thain v. Thain [1891] ScotLR 28_902 (18 July 1891)
URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0902.html
Cite as: [1891] SLR 28_902, [1891] ScotLR 28_902
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
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v.
Facts:
In 1846, T. T., being heir-presumptive to his brother, who was under curatory, in the estate of Arthurbank, disponed his spes successionis in that estate to his cousin D. T. and his heirs and assignees whomsoever. D. T. died in 1850, having executed a trust-disposition the day before his death, by which he conveyed his whole estate, heritable and moveable, including Arthurbank, to trustees, of whom his brother A. T. was one, under a declaration that Arthurbank was to go to his brother A. T. in liferent and to his natural son D. in fee. A. T. accepted the trusteeship and carried out its duties in other respects, but having been advised that the disposition of Arthurbank was ineffectual as having been executed on deathbed, he proceeded to make up his title to that estate as D. T.'s heir-at-law without bringing any action of reduction of the deed ex capite lecti. He obtained in 1852 from T. T., whose brother had died intestate, a disposition of Arthurbank which recited the previous disposition of 1846, he duly completed his title to that estate, and he possessed it as fee-simple proprietor until his death in 1890. At the time of his death he was the sole surviving trustee of his brother D. T.
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In an action at the instance of D. T.'s son against A. T.'s gratuitous disponee, to have it found and declared that A. T. had held Arthurbank in trust for his liferent use allenarly and for the pursuer in fee, that that estate now belonged to him, and that A. T.'s disponee was bound to remove therefrom, it was held, after a proof, that the trust-disposition had been executed upon deathbed, that the conveyance of the right to Arthurbank might have been reduced upon that ground, but that such a reduction was in the circumstances unnecessary; that A. T. had acted openly and in good faith throughout; that his acceptance of the trusteeship did not involve homologation of the disposition of Arthurbank; that his title to that estate was valid from the first; and that his disponee fell to be assoilzied.
In 1841 James Matthew Thain became heritably vested and seised in the estate of Arthurbank in the parish of Coupar-Angus and county of Perth. In the same year he became insane, and died in the Royal Asylum at Dundee 18th February 1852 unmarried and intestate, survived by his only brother Thomas Thain. In the year 1846 their cousin David Thain ( primus) had made large advances to and for behoof of James Matthew Thain and Thomas Thain, and it was agreed by and betwixt David Thain ( primus) and Thomas Thain that in consideration of these advances, and in consideration of an annuity of £20 to be payable to Thomas Thain for his life, and to be charged upon the estate, Thomas Thain should convey the estate and his hope of succeeding thereto to David Thain ( primus). In pursuance of the agreement, and by a deed of disposition and assignation dated the 28th day of January 1846, in consideration of the said advances and annuity, Thomas Thain sold and disponed from him, his heirs and successors, to and in favour of David Thain ( primus), his heirs and assignees whomsoever, heritably and irredeemably, the estate of Arthurbank, and all right, title, and interest which he Thomas Thain then had or at any time thereafter might acquire in and to the same or any part thereof under the real burden of the annuity. And further, Thomas Thain bound himself, upon the death of James Matthew Thain, to procure himself duly and lawfully served and retoured heir to him, and infeft and seised in due and competent form in the said estate, and being thus invested, he obliged himself to infeft and seise David Thain ( primus) and his foresaids in the same, under burden of the said annuity; and further, he bound himself, in the event of the said disposition and assignation being considered by David Thain ( primus) or his foresaids to be insufficient for completing the title in his or their persons to the subjects thereby disponed, to execute another disposition thereof in favour of him and his foresaids as soon as he should succeed to the same as heir foresaid.
David Thain ( primus) died upon 9th November 1850, leaving a trust-disposition dated the day before his death (8th November) while he was suffering from the disease from which he died. By that trust-disposition he assigned and disponed his whole estate and effects, heritable and moveable, to his brother Alexander Thain ( primus) and others as trustees, with a declaration that the deed was granted in trust for the uses and purposes following, viz.—(1) “For the payment of all my just and lawful debts, deathbed and funeral expenses, and of the following sums (being legacies)… . (2) I appoint my said trustees to convey and dispone my property of Arthurbank, all as acquired by me from Thomas Thain formerly residing there, to and in favour of my brother the said Alexander Thain, in liferent for his liferent use allenarly, and to and in favour of David Thain, my natural son, and the lawful heirs of his body in fee, whom failing, to my own nearest heirs in fee: In the third place, I appoint my said trustees to hold the residue of my estate, both heritable and moveable, for behoof of my son the said David Thain, until he shall arrive at the age of thirty years, when they shall pay over and assign the same to him, my said trustees allowing my said son such an allowance for his support and education until he shall attain said age as they shall consider proper and beneficial for him, and they being empowered whenever they may deem it advisable, to allow him to take such management of any part of the estate falling to him as they may consider him fit for, but always under the controul and directions of my said trustees: Declaring always that in the event of the succession to Arthurbank opening to my son before attaining thirty years, the property shall till then be under the controul and management of my said trustees, and in the event of my son dying before attaining said age, my said trustees shall in that case convey the property of Arthurbank to my heir-at-law at the time being.”
Alexander Thain ( primus) acted as one of his deceased brother's trustees, so far as the payment of his debts and legacies was concerned. With regard to Arthurbank, he consulted lawyers, by whom he was advised that the disposition by his brother, so far as the heritage was concerned, was ineffectual, having been granted upon deathbed. He accordingly, without bringing any action of reduction, proceeded to make up a title to Arthurbank in his own person. He obtained from his cousin Thomas Thain a disposition of Arthurbank dated 9th March 1852, which, after narrating the previous disposition of 28th June 1846, in favour of David Thain ( primus) proceeded as follows—“And further, considering that the said David Thain died on or about the ninth day of November Eighteen hundred and fifty without lawful issue, and without having executed any legal disposition or conveyance of his right to the said lands and others disponed by me as aforesaid, and that the right to the same contained in the said disposition and assignation
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by me devolved in consequence upon and now belongs to Alexander Thain, residing at Arthurbank, as his only surviving brother-german, and nearest and lawful heir both of line and conquest to him; and further, considering that the said James Matthew Thain, my brother, died on the eighteen day of February last, in the present year, unmarried and intestate, and that I am now his nearest and lawful apparent heir in the said lands and others; and now seeing that the said Alexander Thain, as heir foresaid of the said David Thain, has required me, in implement of the obligations undertaken by me in the said disposition and assignation before narrated, to grant the disposition underwritten, and that he has also agreed of his own proper motive that the same shall be made under burden of an annuity to me of forty pounds sterling per annum, payable as after mentioned, and under the further burdens hereinafter specified, which annuity and other burdens hereon are to include and be in lieu of the said annuity of twenty pounds sterling per annum contained in the said disposition and assignation before narrated. Therefore I, the said Thomas Thain, as nearest and lawful apparent heir foresaid of the said deceased James Matthew Thain, my brother-german, have sold and disponed, as I do hereby sell, alienate, and dispone to the said Alexander Thain and his heirs and assignees whomsoever, but subject to the real burden of the annuity and other provisions in my favour hereinafter inserted, heritably and irredeemably, “All and whole”[ here follows description of Arthurbank, &c.] Thomas Thain completed a feudal title to Arthurbank, and thereafter Alexander Thain duly completed his title to that estate and possessed it as fee-simple proprietor until his death on 7th July 1890. He left a disposition conveying Arthurbank to his natural son Alexander Thain ( secundus), who had been born in 1840.
In October 1890 David Thain ( secundus) brought an action against Alexander Thain ( secundus) to have it found and declared that Alexander Thain ( primus) and the other trustees of David Thain ( primus), were upon the death of David Thain ( primus) and Alexander Thain ( primus) after the death of the other trustees, lawfully vest, possessed, and seised of and in the lands and estate of Arthurbank, or of and in the spes successionis thereto acquired by David Thain ( primus) from Thomas Thain upon trust to dispone and eonvey the same in the manner intended in the trust-disposition and settlement; that at the time of his death Alexander Thain ( primus) having acquired a feudal title to the estate of Arthurbank, was so vest and seised upon trust, and was bound and obliged to dispone and convey the said lands and estate, subject to his own liferent, to and in favour of the pursuer in terms of the trust-disposition and settlement; that as he he had failed to do so, and his son refused to implement his obligation, Arthurbank should be adjudged to belong to the pursuer, and that the defender should be ordained to remove therefrom.
The pursuer averred that Alexander Thain ( primus) had acted in pursuance of a fraudulent scheme and in breach of his duty as a trustee, in obtaining the disposition in 1852 from Thomas Thain which he had got by increasing the amount of annuity payable to the said Thomas Thain in making up his title as fee-simple proprietor and in keeping the pursuer in ignorance of his rights as beneficiary under the trust-deed.
He pleaded—“(1) The defender's predecessor having, from the date of his acceptance of the office of trustee under the trust-disposition and settlement condescended on, been under an obligation to convey the said lands and estate to the pursuers, or one or other of them, and having through the execution of the fraudulent scheme condescended on, acquired a title to the fee-simple of the said lands and estate, decree of declarator and adjudication should be pronounced as concluded for, with expenses. (2) The defender's predecessor having, from the date of his acceptance of the office of trustee aforesaid, been under an obligation to convey the said lands and estate to the pursuers, or one or other of them, and having, contrary to his trust duty, acquired a title to the fee-simple of the said lands and estate, decree of declarator and adjudication shall be pronounced as concluded for.”
The defender pleaded—“(4) The present action is excluded by the said warrants and infeftments in favour of the said Thomas Thain and the said Alexander Thain ( primus), and the disposition and deed of settlement of the said Alexander Thain ( primus). (5) The said trust-disposition and settlement of David Thain ( primus) having been executed on deathbed is not a habile title to heritage, and the pursuer cannot found thereon. (6) In any event, the defender and his authors having possessed said estate of Arthurbank on an ex facie valid irredeemable title recorded in the appropriate register of sasines for more than the space of twenty years continually and together, peaceably and without any lawful interruption, the defender is entitled to decree of absolvitor, with expenses.”
The Lord Ordinary ( Kyllachy), after a proof, the result of which sufficiently appears from the foregoing narrative and his Lordship's opinion, assoilzied the defender.
“ Opinion.—The defender here has prima facie a good prescriptive title to the small estate in Perthshire which is the subject of the action. That is to say, his father, who died last year, and whose general disponee he is, made up a title to and was infeft in the estate so far back as the year 1852, and on this infeftment, which was an infeftment in fee and in all respects regular, he possessed until his death last year, when the defender succeeded and continued his possession. The question at issue is whether the pursuer is entitled to get
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The first ground on which the pursuer relies is that the possession of the defender's father up to his death in 1890, falls to be ascribed not to his infeftment in fee, but to the personal title which he held to the liferent of the estate under the trust-disposition and settlement of David Thain. I am unable to sustain this contention. The pursuer's possession must, I think, be ascribed to the title which he made up and published—which was a title inconsistent with the trust-disposition and settlement—and which was made up on the footing that the trust-disposition and settlement was reducible ex capite lecti. Moreover, the proof appears to me to establish that the possession had by the defender's father exhibited all the marks and qualities of possession by a fiar. I refer particularly to the leases which he granted and to the large sums spent by him on the improvement of the property and the erection of buildings upon it. The pursuer might, it will be observed, have raised the present question at any time during the period of prescription. He had always a sufficient title and interest to reduce the infeftment as an infeftment in fee, if he saw his way to do so.
The other ground on which the pursuer relies is at first sight more formidable. It appears that the defender's father was himself a trustee under the trust-disposition and settlement of his brother David Thain, and there is no doubt that he acted in the trust as regards the administration of the moveable estate, and also in carrying on for the benefit of the legatees a certain farm of which the truster had a lease current at the time of his death. It is said that in these circumstances the title which he made up to the lands now in dispute constituted a breach of trust, that it was his duty to possess under the trust, and that consequently he cannot prescribe against the trust.
I allowed before answer a proof of the facts bearing on this question. And I am now satisfied of the relevancy and also of the conclusiveness of the facts which that proof establishes. It is clearly proved that the trust-settlement in question was executed by David Thain on the day before he died, and while he was labouring under the disease of which he died. In short, it is quite clear that it was open to the defender's father, as David's brother and heir-at-law, to reduce the deed ex capite lecti. It is also clear that the only reason why this was not done was that the heir was advised that it was not necessary, and that there being no question as to his right to succeed he might make up his title in the most convenient form without reference to the abortive conveyance in the trust-disposition and settlement. In these circumstances I cannot hold that the heir, although a trustee, violated any duty to the trust in taking the course he did. The substance of the matter must, I think, here be looked to; and it being clear that the lands in question formed truly no part of the trust-estate, I see no interest which was prejudiced by the course which the heir took, and which, it will be observed, he took openly and under competent legal advice.
It is true that the present defender (being, as it appears, illegitimate) cannot now bring a reduction ex capite lecti, but that does not, in my opinion, prevent his proving as part of the history of the trust, and as an answer to the suggestion of breach of trust, that the trust settlement was ineffectual to convey the lands, and was recognised and dealt with as being so.
It might have been a different matter if the defender's father could be shown to have homologated the trust-deed prior to his taking the step of making up his adverse title. But I find no evidence, and indeed no averment of anything from which such homologation could be inferred. With respect to acts subsequent to the assertion of his adverse title, I do not think that they can count. But they only at best come to this—that the heir-at-law, while repudiating the trust-deed as a conveyance of the lands, yet acted in the management of the trust as a trust, embracing the moveable estate. It is quite certain that he never intended to ratify the trust-deed as containing a conveyance of the lands in question.
Some doubt was suggested as to whether the law of deathbed applied, looking to the peculiarity of David Thain's title. It appears that although in possession, he at the time of his death had no feudal title to the property, but only a jus crediti under a contract with a person who had a conveyance to what was then only a spes successionis. The right, however, such as it was, was a heritable right, and one which ultimately became available to David Thain's heir. And no authority was quoted to me for the proposition that the law of deathbed was confined to feudal or proper personal rights to land, and did not include rights of the nature of jura crediti.
Altogether, I see no reason why I should not assoilzie the defender from the action of declarator and adjudication, being the only action which is at present before me.”
The pursuer reclaimed, and argued—(1) It was not sufficiently established that the deed of David Thain was granted on deathbed. In any case, it was good until reduced. It was voidable, not void. It had never been reduced. It was at least doubtful whether it could be reduced ex capite lecti. The right assigned was a spes succesurus, which had never been held to be a heritable right. It was rather a moveable right— Beaton & M'Andrew v. M'Donald, June 7, 1821, 1 Sh. 48; Trappes v. Meredith, November 3, 1871, 10 Macph. 38. Further, Alexander Thain had no title to reduce the
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Argued for the respondent—His father had acted openly from the first. He had only accepted the trusteeship after being advised that the trust-deed, so far as it concerned the heritage, was ineffectual. The right conveyed was clearly a heritable right—Ersk. Prin. iii. 8, 49. He had not brought an action of reduction with the view of saving expense to the trust. He might no doubt have denuded himself of the trust, and then have made up his title, but the trust was divisible into two distinct parts, and he was entitled to act as he had done—Bell's Comm. i. 141; Crichton v. Crichton's Trustees, 1826, 4 Sh. 553; Duncan and Others (Hewit's Trustees) v. Lawson, March 20, 1891, 28 S.L.R. 528. He had openly possessed against the trust-deed for more than the prescriptive period. The evidence had conclusively disposed of the allegation of fraudulent dealing. There had been nothing approaching breach of trust. It was said that the pursuer was ignorant of his rights. This was exceedingly doubtful. He had not gone into the witness-box and said so, and in any case, the defender's title was on record for the pursuer's inspection.
At advising—
The pursuer maintains that Alexander Thain, who accepted the trust and acted as a trustee, committed a breach of trust in making up the title in his own person as fiar instead of to himself in liferent only and to the pursuer in fee, and afterwards, in conveying the fee to the defender, that it was his duty as trustee to denude the fee in favour of the pursuer, and that as the defender is a gratuitous disponee he can take no benefit from his author's breach of trust, and must now denude, as the latter would have been compelled to do had the defender not been kept in ignorance of the way in which he had made up his title. The answer is that there was no breach of trust, because the conveyance to Alexander Thain by David Thain was executed upon deathbed, and therefore was ineffectual to prejudice the right of Alexander, his heir-at-law. I do not think it doubtful that that is a perfectly good answer if the facts on which it rests can be established. Alexander Thain could acquire no right in any part of the trust-estate contrary to the terms of the trust, but he was not bound by acceptance of the trust to abandon an estate which belonged to himself, and which the truster had no power to convey. The question between the parties appears to me to be a question of fact. If Alexander Thain made up his title in breach of the trust, the pursuer, whose interest he was bound to protect, will be entitled to vindicate his right to the estate notwithstanding the gratuitous conveyance to the defender. If there was no breach of trust, the pursuer has no right, and the defender must be allowed to retain his own estate.
A good deal of confusion and apparent difficulty was introduced into the argument by the defender's contention that he had acquired a prescriptive right. If there was no breach of trust, defender had no need to plead prescription, and if there was breach of trust prescription will be of no avail to him. It is settled law, to state the doctrine in the language which was used by your Lordship in the chair in one of the cases cited to us, that no trustee can acquire by prescription a right to perpetuate a breach of trust, and since the defender is a gratuitous disponee
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But then I think it is only necessary to state the facts of the case in order to show what the real question between the parties is; and when it is rightly understood it seems to me to be very obvious that we have no concern in this case with any plea of prescription at all. If the defence is well founded that David Thain's deed was invalid and ineffectual to convey his right to Alexander, and thus that Alexander Thain had a perfect right to complete his title as he did at the time, it is obvious that would have been just as good a defence for Alexander Thain if the action had been brought against him in the year he made up his title as it is to the defender now; and if it could not have been a good defence to Alexander Thain I think it can be no better for the defender as his gratuitous disponee. It appears to me therefore that the question is really one of fact.
It is said that the defence is bad in law, because the law of deathbed while it subsisted had no application to the kind of right which was vested in David Thain. I agree with the Lord Ordinary that this argument is not well founded, and for the reason which his Lordship gives, that the right even as it was was an heritable right, and one which ultimately became available to David Thain's heirs. The law as it stood at the time of David Thain's death was this—that all gratuitous deeds making over or burdening subjects which the heir would have succeeded to had they not been so conveyed, or from which he would have derived any benefit, or which tended in any degree to prejudice the heir, might be reduced on the head of deathbed. The law is so stated by Erskine, and as thus stated it appears to me to apply directly to the case in hand. The question therefore appears to me to be merely whether there was or was not any breach of trust in fact on the part of Alexander Thain; and I agree so entirely with the Lord Ordinary as to the result of the proof that I think it unnecessary to do more than repeat what his Lordship says as to the effect of the evidence. The Lord Ordinary says—“It is clearly proved that the trust-settlement in question was executed by David Thain on the day before he died, and while he was labouring under the disease of which he died. In short, it is quite clear that it was open to the defender's father, as David's brother and heir-at-law, to reduce the deed ex capite lecti. It is also clear that the only reason why this was not done was that the heir was advised that it was not necessary, and that there being no question as to his right to succeed, he might make up his title in the most convenient form without reference to the abortive conveyance in the trust-disposition and settlement. In these circumstances I cannot hold that the heir, although a trustee, violated any duty to the trust in taking the course he did. The substance of the matter must, I think, here be looked to; and it being clear that the lands in question formed truly no part of the trust estate, I see no interest which was prejudiced by the course which the heir took, and which, it will be observed, he took openly and under competent legal advice.”
The only observation that occurs to me to add to what the Lord Ordinary has here said is with reference to his statement that this course was taken openly. I think it very clearly proved that it was known to everybody concerned. The pursuer, however, alleges on record that he was kept in ignorance of the facts of the case, and of the method in which Alexander Thain made up his title. But then he has not gone into the box to prove that he was ignorant of these facts, and therefore I think it cannot be assumed that the pursuer was really kept in ignorance of what it was important for him to know any more than any of the other persons interested in the estate of David Thain.
Now, if the facts are as the Lord Ordinary has stated them, and I think accurately, there remains only one point to be considered. It is said the defender has no right to reduce the deed ex capite lecti, because he is not the heir-at-law either of David Thain or of Alexander Thain, and if it were necessary for him to reduce David's trust conveyance, that would, I think, be a very formidable plea. But then he is under no necessity to reduce the deed. He has no title to set aside any conveyance by David Thain in respect of a right of succession to him, but he has an undeniable right to maintain the right which has been granted to him by Alexander Thain, and for that purpose to prove that his author's title was not founded on breach of trust. The material consideration is that there is no competing title which requires to be set
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I agree with Lord Kinnear that if the defender is in possession on such a title he requires no assistance from prescription or any such subordinate right. That is the position of the defender here. He holds these lands on an absolute disposition derived from his father. Nobody seeks to reduce that title, and there is no competing title. But the only case made on record is this—that the defender's father Alexander during all that time from 1852 was under an obligation to convey these lands to David's trustees, and accordingly the manner in which this action was brought was to have it found and declared that Alexander, the defender, was under this obligation, and on his failing to implement that obligation to have the lands adjudged. Accordingly, it humbly appears to me along with Lord Kinnear, that the only question we have to decide is whether or not Alexander Thain, in the year 1852 and downwards, was under an obligation to convey these lands, to which he had made up a fee-simple title, to the trustees under David's trust-deed. That depends upon the disposition granted by David Thain, and it is this—David died in 1850, predeceasing, as I have said, Thomas Thain, but he left a trust-disposition and settlement dated 8th November 1850 in favour of the elder Alexander and three other trustees, by which he conveyed to them his whole estate, and he directed them to dispone Arthurbank to Alexander Thain in liferent and to the pursuer David, his natural son, in fee. It is said that that is and was a binding obligation upon Alexander, and that is the obligation which Alexander's son, the defender, is now called upon to fulfil.
Now, it appears to me that if David's trust conveyance was then and is now to be treated as a valid and unreducible conveyance, the pursuer possibly might be enabled to come in. But that is not distinctly averred nor proved, because I agree with Lord Kinnear and the Lord Ordinary that the circumstances in which this trust-disposition of Arthurbank was executed were these—that it was executed on 8th November 1850, and that the granter of it, David, died the next day, 9th November 1850, and that when he executed it he was ill of the disease of which he died. Now, I think that is on the evidence clear beyond any doubt, and this therefore was
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That is the view I take of this case. I quite agree with Lord Kinnear that there might have arisen certain circumstances in which it might have been necessary to reduce this deed. If, for example, David had been in point of fact infeft in these lands of Arthurbank and had conveyed them under a disposition under which the trustees might have completed a title to them and possessed them, in that case it would have been quite necessary for Alexander to come forward and reduce that disposition if he desired the property. But that was not the position of matters here at all. It is quite obvious that the trustees could make up no title to these lands without the assistance of Alexander, who was the heir, or by bringing an action of adjudication against him. If Alexander chose to make up a title, the only other course was just what has been raised here—an action of implement and adjudication. It is perfectly obvious that all the time during Alexander's life he had complete possession, for this is a reducible deed, and no doubt if he had been challenged at any time during Alexander's life the answer would have been complete. He would have said as the defender says now—“This is a deed reducible ex capite lecti.” He consulted his advisers, and they took that view. His agent told him that he need not reduce this deed unless a challenge was brought. No such challenge was ever brought during all his life. I agree with the Lord Ordinary that perhaps that was not very prudent advice, for he exposed himself to the risk of losing evidence. It is fortunate for him that there is preserved evidence to my mind conclusive that this deed was reducible ex capite lecti, but if the facts had been otherwise even at this late date, and Alexander had been unable to prove that the deed was reducible ex capite lecti, I do not see very well what answer the defender would have had. But that is not the state of facts, for fortunately Alexander Thain, the defender, has been able to show the true state of matters, and that in point of fact this deed was a deed reducible ex capite lecti. It may be not wholly so, but the deed was only valid to convey the lands, and only conferred on the pursuer a personal claim on Alexander to convey. Now, I think with Lord Kinnear that that being the nature of the case it is an answer to this personal claim that Alexander could and would have shown at any time during his life that no such personal claim existed against him. I think with Lord Kinnear that no claim existed against the defender's author, and certainly no claim exists against the present defender. I think the defender, who has possessed this estate on an absolute title for the last forty years, requires no prescription to strengthen his case. That appears to me with Lord Kinnear to be the true state of the facts. I only wish to say it is averred on record, and is a ground of this action, that this is a case of fraud, and it is said that all this title was made up in pursuance of a fraudulent scheme to defeat the pursuer's right under the trust-disposition. I think it right to say that I see no trace whatever of fraud on the face of these proceedings. I think that everything was done by Alexander Thain in the most open way possible. There was no concealment. I think with Lord Kinnear that these three remaining trustees and everybody else knew perfectly well the state of the title and the facts in this case; and I agree with Lord Kinnear that we are entitled to conclude from the non-appearance of the pursuer in the witness-box that he knew as well as other people the true state of the facts in this matter. These are the facts, and I concur with Lord Kinnear.
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The Court adhered.
Counsel for the Pursuer and Reclaimer— Dickson— Law. Agents— Reid & Guild, W.S.
Counsel for the Defender and Respondent— Ure— Craigie. Agents— Gordon, Petrie, & Shand, S.S.C.