United Kingdom House of Lords Decisions

The appellant's father, George Duncan, had, previous to his death, sold a small property to Robert Thomson, which was afterwards purchased by the respondent from him, for an adequate price paid.

After George Duncan's death, his daughter refused to remove from the property, which compelled the respondent to raise an action of removing before the sheriff; and the appellant, on her part, brought an action of reduction to set aside the conveyance by her father to Thomson, on the following grounds:—1. Facility in the granter of the disposition 1784. 2. Lesion and circumvention on the part of the grantee.

The Lord Ordinary allowed a proof; and, besides the proof, it appeared that the disposition was signed by the granter, George Duncan, on the first page, thus:

“Gancan Garg Duincan;” on the second page, it was “Georg Duncan;” on

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the third page, it was “Georg Ducan;” and on the fourth, “Georg Duncan.”

On the proof, the respondent maintained, 1. That the facility and incapacity of George Duncan were not established. The appellant had stated, “that the natural imbecility of George Duncan's mind was increased by age and habits of intoxication;” but even if this were established by the proof, it would not avail her; because it would be too vague and indefinite to support the conclusions of the summons. The proof, when examined, he contended, did not even amount to this. The greater number of the witnesses, with the exception of one or two, spoke distinctly to his fitness in body and mind to take charge of his own affairs, and to transact business. One alone declared he was weak in body and mind. Another, that he could not be imposed upon except in drink. And many declared that he had the ordinary capacity at the time of the sale to transact business, and enter into a bargain regarding the sale of his feu. 2. As to lesion and circumvention, it was maintained that there was no proof of it. There was no inequality in the price—a full price having been given; and there was no deceit practised. 3. The respondent further rested his defence on this general plea. That as the reduction was founded on the fraud of Robert Thomson, this was not a ground of challenge which could affect him, a bona fide purchaser from Thomson.

July 19, 1796.

Feb. 14, ——

Mar. 1, 1797.

The Lord Ordinary having reported the case to the Court, the Lords at first sustained the reasons of reduction, and reduced and decerned; but, upon reclaiming petition and answers, they altered this interlocutor, and “repel the reasons of reduction, assoilzie the defender, and decern, but find no expenses due.” In the action of removing, which was removed to the Court of Session, they also decerned the appellant to remove from the subjects. And, upon bill of suspension against these decrees, the bill was refused by Lord Cullen.

Against these interlocutors the present appeal was brought to the House of Lords.

Pleaded for the Appellant.—By the law of Scotland, facility in either of the contracting parties, when coupled with lesion in the matter of the transaction itself, is a relevant ground for voiding an agreement of sale. In the present case, these grounds of challenge have been established, not only by direct parole testimony, but by intrinsic evidence,

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