Scottish Court of Session Decisions

This was a case at the instance of John Agnew and his mandatory against the Rev. William Sprott, United Presbyterian minister, Glasgow. The summons concluded for declarator that the defender held in trust certain heritable subjects in the village of Stewarton, in Wigtownshire, and that the disposition granted to his ancestor by the pursuer's ancestor, although ex facie absolute, “was really taken and granted without any money or price having been paid for the same at or upon the granting thereof, and was truly intended, with the title following thereon, only as a security for the repayment by the said deceased John Agnew to the said William Sprott and his foresaids of a sum of £145 sterling, then advanced by the said deceased William Sprott to the said deceased John Agnew, which sum of £145 sterling, with interest thereon till the date hereof, has been already repaid to and received by the said deceased William Sprott and his foresaids, including the defender, through his and their intromissions with the rents of the said property from the date of the said disposition until the present time.”

The principal pursuer is the only son and heir-at-law of the late John Agnew, sea captain, some time residing at Stewarton, in the parish of Kirkcolm, and county of Wigtown, who died intestate on 18th January 1839, and he made up a title as nearest lawful heir-in-general to his father. By holograph mandate, 6th February 1873, he authorised his sister, Miss Margaret Anne Agnew. to act as his mandatory in the present action. On 16th April 1838 the deceased John Agnew sold, conveyed, alienated, and disponed to and in favour of William Sprott, writer in Stranraer, who acted at the time as his law agent, his heirs and assignees whomsoever, heritably and ex facie irredeemably, certain heritable subjects at Stewarton.

The pursuer maintained that this disposition, although ex facie absolute, was really executed as a security to the said William Sprott and his heirs for repayment of a sum of £145 sterling, then advanced by him to the said John Agnew; and that it was understood and agreed between the parties that when the said sum, with lawful interest, should be repaid by John Agnew or his heirs, or when by intromissions with the rents and profits of the subjects William Sprott and his foresaids should have repaid themselves the said sum and interest, he or they should denude and reconvey the same to John Agnew or his heirs.

In answer, the defender stated that he thought it proper to explain that on making particular search among his uncle Mr William Sprott's papers, in the summer of 1872, he found a writing, styled on its back, “Copy Back-Letter by William Sprott to John Agnew, 16th April 1838.” Of the existence of this document he was previously unaware, and even now he knew no more regarding it than itself conveyed, nor was he aware of the existence of any original of the document.

William Sprott entered upon possession of these subjects, and died intestate on 7th January 1845, being succeeded by his brother John Sprott, who died insane and intestate, and was succeeded in the property and possession by his nephew William Sprott, the defender.

The defender at the date of the disposition was only eleven years of age; and then and afterwards he knew nothing of his uncle's private affairs; and when his uncle died he was only seventeen years of age.

Finally, the pursuer averred that by the intromissions of William Sprott, John Sprott, and the defender with the rents and profits of the subjects, the sum of £145, with legal interest to the date of this action, had been repaid.

All this the defender denied, adding that he had always been willing, without prejudice to the absolute nature of his title and his legal rights generally, to sell and reconvey the subjects, upon payment of the original price, with interest, and reimbursement of his outlays and expenses; and he now, upon the same footing, repeated his offers to do so.

The pursuer pleaded—“(1) The disposition of 16th April 1838, although ex facie absolute, having been truly granted in security for the repayment of a sum of money advanced by the defender's author to the father of the pursuer, the pursuer is entitled to decree of declarator as craved. (2) The nature of the agreement between the parties to the disposition having been well known to the defender at the time, can be competently proved by the oath of the defender. (3) The sum advanced having been repaid with interest; the pursuer is entitled to decree as craved.”

Page: 74↓

The defender pleaded—“(5) The pursuer is bound, ante omnia, to prove the tenor of the alleged back-letter in a regular action of proving the tenor; and, separatim, he is bound to aver and to prove delivery. (6) The disposition of 16th April 1838, being absolute in its terms, and no competent proof being offered that it was granted in security, the defender is entitled to absolvitor. (7) The allegation that the defender holds the subjects in dispute in trust for the pursuer can be proved only by writ or oath. 9) The pursuer's averments being unfounded in fact and untenable in law, the deender ought to be assoilzied, with expenses.”

The Lord Ordinary pronounced the following nterlocutor:—

“12 th June 1873.—The Lord Ordinary, in respect the defender has now appeared and deponed in terms of the preceding interlocutor, and having considered the deposition of the defender, No. 17 of process, and heard counsel thereon, finds the oath of the defender to be negative of the reference: Therefore assoilzies the defender from the conclusions of the summons, and decerns: Finds the pursuer liable to the defender in expenses, and remits the account when lodged to the auditor to tax and report.”

The pursuers reclaimed.

Argued for them—(1) The disposition was truly in trust, and this was known to the defender. (2) The price has been repaid.

The Court advised the case without calling on defender's counsel.