Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> James Macpherson, of Killyhuntly v. John Macpherson, of Dalrady [1723] UKHL Robertson_435 (11 February 1723)
URL: http://www.bailii.org/uk/cases/UKHL/1723/Robertson_435.html
Cite as: [1723] UKHL Robertson_435
[New search] [Printable PDF version] [Help]
SCOTTISH_HoL_JURY_COURT
Page: 435↓
(1723) Robertson 435
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 97.
v.
Subject_Trust. —
Qualifications of trust found to be irrelevant.
This appeal related to certain deeds executed in favour of the respondent, by Elias Macpherson, of Inveresbie, being conveyances of his whole estate, bearing to be for onerous considerations, and containing absolute warrandice. These deeds were executed in 1693, 1694, 1695, and 1696.
The appellant's father had a wadset upon the estate of this Elias; and Elias, on the 7th of February 1696, conveyed his right of reversion of this wadset to a trustee for the appellant's father, by a deed bearing to be for onerous considerations. Elias also executed an instrument on the same 7th of February 1696, declaring upon his soul and conscience, that the deeds formerly executed by him, in favour of the respondent, were in trust only.
1696, c. 25.
After this period, on the 24th of February 1696, Elias executed another deed in favour of the respondent, reciting certain bonds formerly granted by him in the respondent's favour for money lent, and that the same bonds being returned, he acknowledged the same as the price of his estate remaining unencumbered with wadsets. Elias died without issue, and the respondent having taken steps for the redemption of the wadset now belonging to the appellant, the appellant brought an action of declarator before the Court of Session, to have it declared, that all the deeds formerly executed by Elias Macpherson, in the respondent's favour, were only in trust for the grantor. In this action he insisted that the cause of action having arisen before the act 1696 c. 25. was passed, the trust might be proved by other means than writ, or oath of party, he founded upon the declaration of soul and conscience and other special circumstances in the situation of the parties.
Page: 436↓
The respondent made defences, and after sundry proceedings the Court on the 13th of July 1721, “found that the qualifications of trust alledged by the appellant, are not relevant and therefore assoilzied the respondent and decerned.”
The appellant gave in several petitions against this interlocutor, but the Court on the 28th and 29th of July 1721, and 9th of February 1722, “adhered to their former interlocutor.”
Entered, 23 Oct. 1722.
The appeal was brought, “several interlocutory sentences or decrees of the Lords of Session of the 13th, 28th, and 29th days of July 1721, and 9th of February 1722.”
(The particular circumstances of the case are stated at considerable length in the appeal cases, but not with sufficient distinctness, to render an abridgement of them useful.)
Judgment, 11 Feb. 1723.
After hearing counsel, It is ordered and adjudged that the said petition and appeal be dismissed, and that the interlocutory sentences or decrees therein complained of be affirmed.
Counsel: For Appellant,
Ro. Dundas.
C. Talbot.
For Respondent,
Dun. Forbes.
Will. Hamilton.