Scottish Court of Session Decisions

On 25th June 1878 Peter Stuart entered into an antenuptial marriage-contract with Miss Jane Eliza Hanson, whereby he conveyed certain heritable subjects in Edinburgh and Leith, of which he was proprietor, to trustees, of whom he himself was one, for, inter alia, the following purposes—“In the second place, the said trustees shall hold said subjects … for the sole liferent use and behoof of the said Jane Eliza Hanson, as from and after the date of said marriage exclusive of the jus mariti, right of administration, courtesy and other rights of the said Peter Stuart … but as an alimentary provision to the said Jane Eliza Hanson. In the third place, the said trustees shall, in the event of the said Peter Stuart surviving the said Jane Eliza Hanson, hold said subjects for behoof of the said Peter Stuart so long as he shall survive, for his liferent use allenarly. … In the fifth place, the said trustees shall hold the whole of the means and estate hereinbefore conveyed to them … for the whole children already born to the said Peter Stuart by his former marriage, and any child or children that

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may be born of the intended marriage, to be divided among them equally, share and share alike … and declaring that the shares of the children shall not be payable if sons till they attain majority, and if daughters till they attain majority or are married, whichever of these events shall first happen, and that said shares shall not vest until they become payable; and declaring further that the shares of any child predeceasing without lawful issue the term of payment, shall accrue to the surviving children.”Power of sale was given to the trustees, subject to the approval of the liferentrix in the event of her surviving her husband.

There was a direction in the deed that the first part of it containing the disposition to the trustees and the description of the subjects should be recorded. The trustees took infeftment under that direction, and were thus infeft in the subjects in trust for purposes to be specified, which were in fact not specified in their infeftment.

Subsequently to the granting of this deed Peter Stuart left Scotland and went to reside in England, which became his permanent home.

On 9th April 1894 James Smith, trustee on the estate of Henry M'Intosh, raised an action against Peter Stuart in the Court of Session, to recover the sum of £334, 5s. 9d., being the balance alleged to be still due of a sum lent to the defender by Henry M'Intosh in the year 1883.

The pursuer averred that the defender was the owner of heritage in Scotland, and was therefore subject to the jurisdiction of the Scots Courts.

The defender averred that he was a domiciled Englishman, and that he had no longer any interest in heritage in Scotland.

He pleaded—“(3) No jurisdiction.”

On 20th July 1894 the Lord Ordinary (Low) repelled this plea and appointed the cause to be enrolled for further procedure.

“ Opinion. — The question which was argued in this case was whether the defender is subject to the jurisdiction of the Court. That question depends upon whether he has a sufficient right to heritable property in Scotland to confer jurisdiction.

Admittedly the defender had at one time considerable heritable property in Scotland, but he conveyed part of it to trustees under his antenuptial marriage-contract in 1878, and he avers that in recent years he has sold the remainder.

In regard to the latter properties the defender produced the titles which he had granted to the purchasers, and ex facie of them he is completely divested. But the pursuer had not seen these titles until they were produced at the bar, and if the question of jurisdiction depended upon whether or not the defender was truly divested of these properties, I could not dispose of it at this stage.

The pursuer, however, contends that the defender has a sufficient interest in the heritable properties conveyed to his marriage-contract trustees to found jurisdiction—[ His Lordship then narrated the purposes of the marriage-contract].

I do not think that the fact that the defender is infeft as one of the trustees in the property has any effect in the way of founding jurisdiction in this case, and the question depends upon whether he has a sufficient beneficial interest in the property held by the trustees. The defender argued that he had not, because, in the first place, he had reserved no rights to himself in the property, except an alimentary liferent in the event of his wife predeceasing him; and, in the second place, the right which he has under the trust is not a right in the heritable property conveyed to the trustees, but only to the free income, in a certain event, of a mixed estate.

It is settled that, for the purpose of founding jurisdiction, the value of the property, or of the right in the property, is of no moment. Nor is the character of the title of any moment. The one thing essential is that the party should have a right in or to immoveable property situated in Scotland.

In the case of Kirkpatrick v. Irvine, 17 S. 1200, aff. 2 Rob. 475, it was held that possession of a bare mid-superiority, alleged to be of no value, and defeasible at the pleasure of the disponees, was sufficient to found jurisdiction.

In M'Arthur v. M'arthur, 4 D. 354, it was held that a person having right to a property as apparent heir, although he had neither made up titles nor entered into possession, was subject to the jurisdiction of the Court. In that case Lord Fullerton, who gave the leading opinion in the First Division, entered into a very elaborate examination of the law upon the point, which he summed up in these words —‘The only principle which I am aware of then is, that, there being a subject of any value, however small, within the jurisdiction, and admitting of being made available to the possessor through the means of a judgment of the Courts of this country, these Courts have, eo ipso, jurisdiction to pronounce such judgment.

In the case of Charles v. Charles' Trustees, 6 Macph. 772, it was held that a beneficial interest in a heritable estate held by trustees under a settlement was sufficient to found jurisdiction; and, finally, in the case of Fraser v. Fraser & Hibbert, 8 Macph. 400, it was held that a party who had a lease of a shooting lodge in Scotland was subject to the jurisdiction of the Court.

In the latter case the late Lord President laid it down—First, that the nature of the defender's title was of no importance in a question of jurisdiction; and, secondly, that his right did not require to be a right of ownership. His Lordship then said, referring to the case of a lease, ‘I have come to be of opinion that the beneficial possession, whether natural or civil, of immoveable estate within the realm, whether permanently or temporarily, upon a good title of possession, is sufficient to found jurisdiction.’

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Such being the law, the question is, whether the defender has a right in the property held by his trustees sufficient to bring him within its scope? The question is not without difficulty, but I am of opinion that it must be answered in the affirmative.

It is a general rule that a trust-conveyance does not divest the truster beyond what is necessary for the carrying out of the purposes of the trust. If the trust purposes fail, the complete right of the truster revives. In this case, if the defender's wife and children failed, the property would belong to him, because, as I read the provisions of the contract, so long as the defender lives, the beneficial fee of the property does not vest in his children. As I have said, the trust-estate does not fall to be divided among the children until the liferents of husband and wife have come to an end, and even then the shares are not payable till majority or marriage. There is, then, a special declaration that the shares shall not vest until the term of payment, and that the shares of a child predeceasing the term of payment without issue shall pass to the survivors. I think that these provisions make it impossible to come to any other conclusion than that during the lifetime of the spouses, or the survivor, nothing vested in the children, and I do not think that the fact that a limited power is given to trustees to make advances to children for their advancement in life, before the termination of the liferents, makes any difference except as regards any sum which may be so advanced.

But if the beneficial fee has not vested in the children, I think that it is impossible to say that the trust conveyance absolutely divested the defender of all right and interest in the property, because, failing children, the trustees are holding the property for him. That appears to me to be a direct and present right in the property, and as I have said it is of no materiality to consider what is the value of the right.

Upon the whole, I am of opinion that the plea of no jurisdiction must be repelled.”…

The defender reclaimed, and argued—He was not the proprietor of heritable subjects, so as to be within the jurisdiction of Scots Courts. By the marriage-contract he had been formally divested of his property in the subjects, and the trustees had been invested—M ‘Laren on Wills and Succession (3rd ed.) p. 959. His reversionary interests were quite valueless, there being already in existence ten children and a grandchild; and any right he still had was no higher than that of a conditional institute, and no better than that of a stranger substitute. The case of Kirkpatrick v. Irving, quoted by the Lord Ordinary, did not support the respondent's proposition that the mere possession of heritage, though of no value, was enough to found jurisdiction, for a mid-superiority was of a certain value, while in the present case there was absolutely no value. Thus, too, in the case of Fraser v. Fraser & Hibbert, January 14, 1870, 8 Macph. 400, founded upon by the respondent, there was beneficial possession which differentiated it from the present case. None of the cases quoted went far enough to support the respondent's proposition— Ferrie v. Woodward, June 30, 1831, 9 S. 854. The utmost right that remained in the granter of a deed such as this marriage-contract was a spes successionis, and that was not a right in property or assignable as such— Kirkland v. Kirkland's Trustees, March 18, 1886, 13 R. 798; Reid v. Morison, March 10, 1893, 20 R. 510. The fact that the recording of the deed was limited did not prevent the granter from ceasing to be subject to the jurisdiction of the Scots Courts. The deed had been sufficiently recorded to show that there was a trust, and to warn thereby intending purchasers— Bowman v. Wright, January 24, 1877, 4 R. 322; Titles to Land Consolidation (Scotland) Act 1868 (31 and 32 Vict. cap. 101), section 12. In any case, the trustees might now divest the truster effectually by recording the deed in full.

Argued for the pursuer—(1) The defender still had the radical right in the heritable subjects. There was no right vested in the children, since their right was contingent upon their survivance of the granter and arrival at majority. The right remaining in the truster was certainly at the date of the marriage-contract a valuable one, and it still remained as a vested right subject to the burden of the trust. It was therefore superior to a mere spes successions, though even that would be enough to found jurisdiction. Moreover, the deed was revocable as regarded the children of the first marriage being of a testamentary character, and was only irrevocable as regarded those of the second marriage. The right to a reconveyance in certain events was a heritable right, and therefore subject to adjudication— Fraser v. Fraser & Hibbert, supra. (2) The purposes of the trust not having been recorded, the truster was still feudally invested, and he was therefore subject to jurisdiction. This case differed from that of Bowman v. Wright, because there the granter of the deed had made an absolute conveyance retaining no interest, while here he still had a substantial one. The truster could only be feudally divested by the recording of the whole deed.

At advising—