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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Robertson of Goodlyburn, a Pauper v. George Earl of Kinnoul [1721] UKHL Robertson_394 (5 July 1721)
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Cite as: [1721] UKHL Robertson_394
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SCOTTISH_HoL_JURY_COURT
Page: 394↓
(1721) Robertson 394
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 88.
v.
Subject_Process. — Act and Commission. —
A pursuer opposes the granting an act and commission for examining the defender, a peer in London, in a matter referred to his oath, on the ground that he being old and poor, could not follow the examination: but the commission is granted notwithstanding.
Subject_Trust. —
A person executes an absolute surrender of his feu, in favour of his superior's son, but alleging qualifications of trust in a separate verbal agreement, the superior swears that he remembered no term of depositation, and the son, the grantee, swears, that he personally gave no consideration for the deed, and that it was not delivered to him, but that every thing was transacted by his father; and he never heard of any conditions or trust: it is found that the depositions did not support the allegations of trust.
After the determination and judgment given in the former appeal, (No. 63 of this Collection), whereby the House of Lords reversed the “interlocutors complained of, as to so much thereof whereby probation by the oath of the respondent had been refused to the appellant, or which was grounded upon such refusal, or pronounced or made in consequence thereof; and further ordered such probation to be admitted, and that after examination of the respondent upon oath, the Lords of Session should proceed and decree thereupon as should be just;” the appellant presented a petition to the Court of Session, praying them to summon the respondent before them to take his oath: his counsel, however, having moved their lordships for a commission to examine the respondent in England, the appellant presented another petition, setting forth that though such commissions were often granted with consent of parties, yet that no law could force him to consent; and that the appellant was an old man and so reduced in his means, that he was not able to follow such a commission, where his presence would be necessary, his all being therein at stake. But the Court, on the 28th of July 1720, “ordained the respondent to depone before the Ordinary, if he should happen to come to Edinburgh during the vacation; if not, they granted a commission to take the respondent's oath at London.” And upon the 25th of November 1720, the commission was renewed upon the respondent's petition.
Interrogatories being settled by the Court, the appellant was examined thereon by a commissioner at London. The import of his deposition was, that the respondent acknowledged, that the appellant never delivered the deed of resignation to him the respondent in whose favour it was conceived, and that the respondent never gave the appellant any consideration for the same. That he knew nothing of any conditions upon which the said deed of resignation was delivered; nor did he ever hear from the late Earl of Kinnoul, Sir Patrick Murray, or any other person
Page: 395↓
On the 24th of February 1721, the Court “found and declared, that the depositions did not prove the allegations made made by the appellant, and therefore adhered to their former interlocutors in the removing.” The appellant reclaimed, insisting that the respondent should be decerned to account for the losses the appellant sustained, by his being dispossessed of the premises; but the Court, on the 28th of February 1721, “adhered to their former interlocutor, without prejudice to the appellant to raise, prosecute, and insist in any proper action against the respondent for his intromission with the appellant's goods, or any damages done to the appellant by dispossessing him or otherwise, as accords.”
Entered 17 May 1721.
The appeal was brought from “two interlocutory sentences or decrees of the Lords of Session of the 28th of July, and 25th of November 1720. and the affirmance thereof made the 24th and 28th day of February 1721. (a)
Heads of the Appellant's Argument.
As no deed could divest the appellant of the right and title to his estate, or convey the same to the respondent, unless it had been delivered to him by the appellant (which the respondent never pretended to prove was done, but only would have it presumed to have been done, because it is now in his power,) the appellant having fully taken off that presumption, by the respondent's own acknowledgment upon oath, he conceives there can remain no further difficulty in this affair. And as the delivery of deeds is absolutely necessary for altering property, so both law and equity require a valuable consideration for the conveyance, (except where the deed itself bears to be made for love and favour;) and the respondent in his depositions has likewise most honourably acknowledged, that he never paid one sixpence for the estate, and that he knows not, that any thing was paid for it by any other person.
The appellant conceives it would be hard above measure to proceed to other presumptions, viz., that the said deed was delivered to the respondent's father, and the price of the estate paid by him for the respondent's use, without any further proof; for by that rule, if an obligee in a bond should execute a discharge
spe numerandæ pecuniæ, which should by any accident fall into the hands of a stranger, it would be in the power of that stranger, by giving that release to the obligor, to release him effectually, and put the obligor past relief, which justice cannot allow: The respondent therefore, before he can reap any benefit from the said deed, must prove not only the delivering of it to his
_________________ Footnote _________________ (
a) These two last interlocutors are not mere affirmances of the two former, but on the merits; whereas the others are merely on the form of process: but so it stands in the Journals.
Page: 396↓
It was contended by the respondent, that as the appellant had acknowledged, that there might be, when the decree of removing was passed, some of the feu duties in arrear, so that the said decree, though only ex parte, being grounded upon some real debt, though not equivalent to the value of the estate, was capable of being confirmed by the subsequent voluntary surrender; and thus that the said decree ought to be looked upon as the valuable consideration of the deed.
Two cyphers put together are of no greater value than any one of them was before; a void deed can never support a void decree. But these arrears of feu-duties were inconsiderable, and tendered before the decree of removing.
Heads of the Respondent's Argument.
It is the constant practice of the Court of Session to grant commissions to examine parties upon oath, especially if out of the kingdom: and the respondent was at that time attending the service of Parliament, and was examined by a commissioner named by the appellant.
The respondent does indeed swear, that the deed was not delivered to him by the appellant, nor did he give any valuable consideration for the same; but then he adds the reason, chat the whole was transacted by the late Earl of Kinnoul, his father; to him the deed was delivered, and no doubt there was a consideration given by him; and it is plain from the deposition of the late Earl of Kinnoul, that the same was delivered without any condition. And the appellant likewise brought an action against Sir Patrick Murray, insisting that the deed was deposited with him upon trust, not to be given up but upon performance of the conditions before mentioned; and Sir Patrick being examined upon oath, swore that the said deed was never deposited in his hands, and so there could be no trust reposed in him; and accordingly the Court, on the 24th of February 1721, assoilzied the said Sir Patrick from the appellant's action.
The appellant likewise insisted that one Mercer, the respondent's agent in Scotland, might be examined how he came by the said deed; and whether he knew or had heard of any and what conditions, upon which the same had been deposited: and Mr. Mercer being examined swore, that the said deed was sent to him by the late Earl of Kinnoul to be made use of in the action of removing at the suit of the respondent against the appellant, and had heard that the same was delivered by the appellant to the said late earl; and that he never heard from the said late earl, or any other person, of any conditions, upon which the said deed was granted and deposited, except what was insisted upon by the appellant in his pleadings.
The respondent's father obtained a decree against the appellant in 1707, voiding his right; the appellant continued to possess the premises after that as a tenant at will, and paid the rent for the
Page: 397↓
Judgment, 5 July 1721.
After hearing counsel, It is ordered and adjudged, that the petition and appeal be dismissed, and that the interlocutory sentences or decrees therein complained of be affirmed.
Counsel: The Appellants' Case is signed by himself.
For Respondent.
Rob. Raymond.
Will. Hamilton.