Scottish Court of Session Decisions

Subject_1 MINOR.
Subject_2 SECT. VII.

Lesion in extrajudicial proceedings.

Janet Lindsay
v.
John Ewing

Date: 15 January 1770
Case No. No 124.

A disposition of heritage, granted gratuitously, by a minor in apparency, and without titles established in his person, reduced.

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Michael Lindsay, portioner of Nether Balloch, was succeeded by his son John, who, in the year 1723, while in minority, in a state of apparency, and without making up any titles to his father's lands, disponed the same, failing heirs of his own body, to his uncle John Lindsay. There was every appearance of the deed having been gratuitous; for though it bore to be for onerous causes, &c. and proceeded upon the narrative of certain obligations upon the part of the disponee, it was not established, though averred, that any of these had been fulfilled, or that any price had been paid. John Lindsay the uncle disponed these lands to John Ewing, who got infeft upon the precept, and continued to possess the same down to the year 1754, when an action was brought against him at the instance of Janet and Agnes Lindsays, daughters of Michael, and apparent heirs to him, their brother John the disponee, in 1723, having died soon after that period.

Various reasons of reduction were founded on; and, owing to the defender Ewing not producing the disposition by John Lindsay to his author in 1723, the pursuer got into possession, and a variety of procedure, unnecessary to be detailed, followed. In the year 1765 the disposition was produced; and, after some farther procedure, parties joined issue upon the grounds of the original action of reduction in 1754, when Janet Lindsay restricted her conclusions, and craved judgment upon the following grounds: The apparency, defect of title in the person of John Lindsay the younger to grant the disposition 1723, under challenge, and that the same was gratuitous.

The question having been reported on informations, it was pleaded for Janet Lindsay; The nullities in the defender's right were intrinsic, and appeared on the face of the progress and titles themselves; the person last but one seised, appeared, from the titles produced, to have been Michael Lindsay; and as John Lindsay his son had died in apparency, without having made up any titles, or having connected his right, either by service or otherwise, with Michael Lindsay his father, he had of course no right in him which could be conveyed to another; and hence the disposition, with all that had followed thereon, was null and void. The objection to the titles and progress applied with equal force to Ewing; for the disposition in his favour specially narrated the rights of John Lindsay his author, and particularly mentioned, that John Lindsay the younger had made up no titles, and could transfer no right; so that he purchased a non habente with his eyes open, and must suffer accordingly.

Answered for Ewing; The pursuer could derive no benefit now from the want of title in her brother at the time of the conveyance; for, by passing by him, her immediate predecessor, who was three years in possession, and making up her titles to one more remote, she had fallen under the enactment of the statute 1695, c. 24. and hence she was bound to implement her brother's onerous deeds, and to supply any defects that might appear upon the disposition to John Lindsay the defender's author.

The following judgment was given: ‘In respect that the disposition by John Lindsay to his uncle John the cooper was gratuitous, granted during apparency, and without titles established in his person, therefore the Lords reduce the same;’ and to this interlocutor, upon advising a petition and answers, they adhered.

Lord Ordinary, Barjarg. For Janet Lindsay, Geo. Wallace. For John Ewing, James Colquhoun. Clerk, Tait. Fac. Col. No 11. p. 26.