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The Govan New Bowling Green Club v. Geddes and Others [1898] ScotLR 35_391 (25 January 1898)
URL: http://www.bailii.org/scot/cases/ScotCS/1898/35SLR0391.html Cite as:
[1898] SLR 35_391,
[1898] ScotLR 35_391
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SCOTTISH_SLR_Court_of_Session
Page: 391↓
Court of Session Inner House First Division.
Tuesday,
January25.
1898.
[
Lord Kincairney, Ordinary.
35 SLR 391
The Govan New Bowling Green Club
v.
Geddes and Others.
Subject_1Proof Subject_2Limitation of Proof to Writ or Oath of Party Subject_3Bargain concerning Heritage Subject_4Trust. Facts:
The proprietor of a certain plot of ground conveyed the same to two persons in trust for themselves and twenty other persons to the extent of one twenty-second part
pro indiviso each, with full power to the trustees to sell the ground. In an action raised by the Govan New Bowling Green Club against these twenty-two persons to have it declared that the Club had the beneficial right to the ground in question, or alternatively that the conveyance was a trust in the persons of the two disponees for behoof of the Club, the pursuers averred that they had been desirous of acquiring for their own the said ground; that the Club not having funds, it was arranged that each of the twenty-two members should contribute a sum of money to make up the purchase price; that an agreement had been entered into by the twenty-two members to take the title as it was actually taken; that the Club had regularly paid the interest on the price to the subscribers; that it was understood and agreed upon between the Club and the twenty-two contributors that the Club should have the right to repay the sums so advanced by them, and thereupon should have the entire beneficial interest in the ground; and that this agreement was embodied in an undated document signed by the contributors and delivered to the Club.
Held (
aff. judgment of Lord Kincairney, though on a different ground) that these averments could be proved only by writ or oath of the defenders, the substance of the averment being an agreement concerning heritage.
Headnote:
In 1867 Archibald M'Vicar, with the special advice and consent of twenty-two persons named (including the disponees), disponed a piece of ground in Govan in favour of John Hinshelwood and Robert Smith and the survivor of them, and the heir of the survivor in trust, and as trustees or trustee for behoof of themselves and the remaining twenty of the said twenty-two persons and their assignees or representatives, to the extent of one twenty-second part or share
pro indiviso each, “with full power to the said trustees or trustee and their foresaids to sell and dispone the said lands and others after disponed … and to borrow money on the security of the subjects.”
In 1897 the Govan New Bowling Green Club and the directors thereof (acting on the instructions of the Club) raised an action against Mrs Grace Pearson or Geddes and the remainder of the said twenty-two persons or their representatives to have it declared that the pursuers “are now entitled to the full rights and beneficial interests of the said twenty-two parties and their representatives” in the piece of ground in question, “and to the whole of the said one twenty-second parts or shares” thereof “as fully and effectually in all respects as if the said subjects had been conveyed to the said John Hinshelwood and Robert Smith … in trust for the said Club instead of for the purpose named in the said disposition,” and that the club “is now entitled to demand and obtain from Mrs Geddes … a valid and effectual disposition and conveyance of the said subjects executed by herself … to such person or persons as the said Club may nominate to hold the same as trustee or trustees for the said Club,” upon the Club making repayment to the parties in right of the said twenty-two parts or shares of the amount paid by them towards the purchase of the said shares. There was an alternative conclusion of declarator that the disposition granted by M'Vicar to Hinshelwood and Smith was a trust in the persons of the latter for the use and behoof of the members of the Club.
The pursuers averred that in 1867 they became desirous of acquiring the ground, which they had hitherto rented as a bowling-green. “(Cond. 2)… All the ground in the neighbourhood was being feued, and the nature of the district altered in consequence. The ground was becoming too small for the increasing number of members, and its turf had gone out of condition. In these circumstances the Club felt it expedient to acquire from the landlord by purchase the whole of his feu (the green being only a part thereof). There were, however, no funds, or at all events no sufficient funds, in the Club available for the purchase, the price demanded by Mr M'Vicar being £100. After much negotiation and discussion, however, an arrangement was made for providing the money required, which arrangement is embodied in an undated document, which was delivered to the Club at the time it was signed, and has remained in its repositories ever since. The document is in the following terms:—‘Mr M'Vicar, the proprietor of the feu of which the Govan Bowling Green forms a part, having offered to take the sum of £100, and assign his whole right and interest in the whole feu, the undersigned agree, to take the following shares of £1 each, repayable by the Club, with interest at 5 per cent. per annum.’ It is signed by sixteen of the then members of the Club, who agree to take among them the whole 110 shares, one taking ten shares, another twenty, a third fifteen, and the remaining thirteen five shares each. It is believed that these three members, who took more than five shares, retained five shares each and distributed the rest of their holdings to other members, giving five to each of these other members and bringing up the total number of holders to twenty-two.
Page: 392↓
The arrangement which the said document embodies was duly carried out, and a minute of agreement, dated 25th, 27th, and 29th November, 7th, 13th, and 24th December 1867, was entered into and executed by and between the said twenty-two members who advanced to the Club the purchase price in terms of the foregoing arrangement, and the price thus provided having been paid by the Club to Mr M'Vicar, he granted the disposition after mentioned.” (Cond. 3) The pursuers here set forth the substance of the minute of agreement, the material parts of which were as follows:— Upon the narrative that the parties hereto have mutually agreed to purchase from Mr M'Vicar the said ground at the price of £100, to be contributed by the parties thereto in equal proportions, and that for the purpose of continuing the same as a bowling green so long as the parties should resolve; and whereas it has been agreed to take a conveyance of the said subjects to certain parties in trust on certain terms and conditions, therefore the parties have agreed as follows, viz., (1) the conveyance shall be in name of John Hinshelwood and Robert Smith, and the survivor of them, in trust, for behoof of themselves and the whole other parties thereto, to the extent of one twenty-second
pro indiviso part or share each. (2) The absolute powers of sale and borrowing to be conferred on the trustees shall not be exercised by them unless and until so resolved upon by a majority in number of shares held by those present at some meeting to be convened. (3) The said trustees shall be entitled, without the consent of any party whatever, to enter into such arrangement for leasing the said subjects, or any portion of them, for the purpose of a bowling green or other similar purpose, and on such terms as they may in their discretion consider proper. “(Cond. 5) The price which Mr A1‘Vicar accepted for said subjects was greatly less than their real value at the time, as he and all concerned well knew, and he only agreed to accept so small a price upon the urgent representation on behalf of the Club by several of its members, including the twenty-two members who were parties to the said agreement, that he should, out of public spirit, accept that price, which was all that the Club or its members could afford to give. Mr M'Vicar accordingly, after some persuasion, agreed on these grounds to accept the sum offered, but he could have obtained, as he well knew, five or six times the price if he had exposed the ground to sale in the ordinary way. Since the disposition was obtained, and down to the present time, the Club has constantly occupied and used the said ground, and it has always been looked upon and treated as the Club's property by the members generally, and by the original contributors, and, until quite recently, by the representatives of such as are deceased. (Cond. 6) At a meeting of the Club held on 17th November 1878 it was resolved to contribute £10 towards the cost of erecting a boundary wall between the green and the adjoining ground held by one Mr Leadingham. A former lease, dated 28th and 29th January and 16th February 1869, was entered into for nineteen years from Martinmas 1868, the rent being £17, 10s. The Club, however, have never been asked to pay said rent, nor have they in fact done so. They have, however, regularly paid interest on the price at 5 per cent. to the said Robert Smith, who granted receipts therefor in the following or similar terms:—' Received from the Treasurer of “Govan Bowling Club” as interest due to Govan Bowling Green Feu Trustees at Martinmas last, five pounds and five shillings. (Signed)
Robert Smith (trustee)