United Kingdom House of Lords Decisions

William Spence, the appellant, was proprietor of a piece of ground near Musselburgh. He had two sons, William and George. On the 18th October 1814 he agreed to sell the property to Sir John Hope of Pinkie, by the following missive:—

“I agree to sell you the ground near Musselburgh belonging to me, and presently occupied by Government as barracks, for the price of L.2000 sterling; your entry to be Martinmas old style; from which term the price is to bear interest. The said sum of L.2000 is to be declared by the disposition a burden on the subject, and to remain in your hands at interest, on a bond granted to me in liferent, for my liferent use allenarly, and to my sons William and George, equally between them, and their heirs, in fee, the interest being payable to me during my life, and, after my death, the same to be payable to my sons, equally between them, for two years thereafter; and the principal to be paid them at the elapse of two years after my decease. You are to rest satisfied with the

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titles that they are good, and to be at the mutual expense of conveying it over to you.”

Sir John having stated his wish that Spence's two sons should consent that the sum should lie for at least eight years certain in his hands, Spence wrote, and the sons signed, a postscript to the missive, in these terms:—

“We, William and George Spence, sons of the foresaid William Spence, proprietor of the barrack ground, hereby agree, that the above sum shall remain in Sir John Hope's hands at least for eight years certain after Martinmas first, 1814.”

Thereupon Sir John accepted the offer, on condition of his “agent being satisfied with the regularity and goodness of your titles.” A disposition in favour of Sir John was then executed by the appellant, and a bond in terms of the missive was granted by Sir John; but neither the disposition nor the bond was ever delivered. Sir John in virtue of the missive entered into possession, and thenceforth paid the interest to the appellant as it fell due.

William Spence, the eldest son, died in 1819, unmarried and intestate; and his brother George having thereafter become bankrupt, a sequestration followed, and Ross was appointed trustee.

Ross advertised the bond for sale, as being the property of George, subject to the liferent of the appellant. Of this the appellant brought a suspension and interdict, in which he maintained, 1 st, That as neither the disposition nor the bond had been delivered, he was not divested of the property, and therefore was entitled to the price; and, 2 d, That the transaction being in relation to the sons mortis causa and gratuitous, he was entitled to resile quoad them. To this it was answered, 1 st, That although there had been no actual delivery, yet the transaction was rei interventu so complete, that the appellant could not resile, and could be compelled by legal process to give the disposition on receiving the bond in terms of the missive; and, 2 d, That the fee was expressly vested in the sons, delivery made to them, and an act of ownership exercised by them, with the consent and full knowledge of the appellant. The Lord Ordinary repelled the reasons of suspension, with expenses; adding in a note, “The Lord Ordinary considers the communication to the sons as of the strongest kind; for it not only made them acquainted with the conveyance in favour of the father in liferent allenarly and of them in fee, but it required an actual and present exercise by them of the right vested in them under that conveyance, which exercise did take place accordingly. This seems far stronger than putting a conveyance on record.” Spence having reclaimed, the Court, after ordering a note of

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