Scottish Court of Session Decisions

By disposition, dated 5th October 1835, John

Page: 309↓

Barrie, portioner in Kirkintilloch, heir-at-law of the deceased John Barrie, and John Henderson, trustee and executor of the deceased John Barrie, in consideration of the sum of £200 paid to John Henderson, as trustee and executor, by Margaret Barrie, wife of James Rae, weaver in Kirkintilloch, conveyed to James Rae and Margaret Barrie, his wife, and the “longest liver of them, in liferent, for their liferent use allenarly, and to the lawful children of the marriage between the said James Rae and Margaret Barrie, his wife, share and share alike, whom failing to the nearest lawful heirs of the said Margaret Barrie whomsoever, heritably and irredeemably, in fee,” certain heritable property in Kirkintilloch. The purchase was made with funds belonging to Mrs Rae.

The spouses took infeftment in liferent for their liferent use allenarly by instrument of sasine, dated 5th October and recorded in the appropriate register of sasines on 2d December 1835, but no infeftment was taken in the fee. There were four children of the marriage, all of whom were born after 1835.

By disposition, dated 24th November and 1st December 1855, on the narrative that the purchase money, in consideration of which the disposition of 5th October 1835 was granted, had been paid from funds belonging to the spouses, and that they, in the exercise of their right of ownership of the subjects, had revoked the destination of the fee, and had sold the subjects to John Martin, Kirkintilloch, and required John Barrie and John Henderson, as trustee, to unite with them in conveying the same, and in consideration of the sum of £200 paid to them (the spouses) by Martin, the spouses and John Barrie as heir foresaid, and John Henderson as trustee foresaid disponed the subjects to Martin, his heirs and assignees, heritably and irredeemably, but reserving to the spouses and the survivor the liferent use of the dwelling—house forming part of the subjects which they then occupied.

John Martin was infeft by instrument of sasine recorded on 17th December 1855, and entered into possession of the subjects at Martinmas 1855, and continued to possess down to the date of his death, after which his testamentary trustees continued the possession.

James Rae, who survived his wife, died in 1881, when the reserved right of liferent of the dwelling-house came to an end. Thereupon his son James Rae entered into possession of it, and asserted a right thereto under the disposition of 5th October 1835.

This was an action at the instance of John Martin's testamentary trustees against James Rae, the son, Mrs Ann Rae or Cunningham, Robert Rae, and John Rae, the children of the marriage between James Rae and Margaret Barrie, to have it found and declared that the pursuers as trustees were absolute proprietors of the subjects, and to have the defender James Rae ordained to remove.

The defenders pleaded—“(1) The defenders' father James Rae, or he and the said Margaret Barrie or Rae, their mother, having had only a fiduciary right in the fee of the subjects in question, neither he nor the said Margaret Barrie or Rae were entitled to evacuate or revoke the destination of the fee of the said subjects to the children of the marriage contained in the said disposition of 1835, and this was not validly or effectually done by the disposition in favour of the pursuers' author.”

The Lord Ordinary (Kinnear) found, declared, and decerned in terms of the conclusions of the summons.

“ Opinion.—The parents of the defenders James Rae and Margaret Barrie or Rae, his wife, acquired the subjects in dispute by purchase, and took the disposition, which is dated the 5th of October 1835, to themselves and the longest liver in liferent for their liferent use allenarly, and to the children of the marriage, whom failing to the nearest heirs whomsoever of the wife in fee. They took infeftment in the liferent by instrument of sasine upon the precept contained in this disposition, but no infeftment was taken in the fee. There were no children of the marriage in existence at the date when the conveyance was executed, and it is not disputed that the purchase money belonged absolutely to the spouses, or one of them, free from any obligation in favour of children to be born.

“While the title still stood in this position, nothing having been done to divest the seller of the fee, the purchasers, conceiving that the destination in favour of their children was revocable, sold the subjects to the pursuers’ author for the same price as they had themselves originally paid for them, but under reservation of their liferent use and enjoyment of a dwelling—house, and gave their purchaser a title by conveyance from the persons from whom they had themselves purchased. By this disposition, dated the 24th November and 1st December 1855, narrating that the purchase-money mentioned and acknowledged in said disposition of 5th October 1835 was paid from funds belonging to them the said James Rae and Margaret Barrie, and that they, in the exercise of their right of ownership of said subjects, had revoked the destination of the fee of said subjects, and had sold the same to John Martin, grocer in Kirkintilloch, and required the said John Barrie and John Henderson, as trustees foresaid (the granters of the foresaid disposition of 2d December 1835), to unite with them in the conveyance, and in consideration ‘of £200 sterling instantly advanced and paid to them, the said James Rae and Margaret Barrie, by the said John Martin, as the agreed-on price and value of said subjects, the receipt of which is thereby acknowledged, the said James Rae and Margaret Barrie, and the said John Barrie as heir foresaid, and the said John Henderson as trustee foresaid, and they all with joint consent, sold, alienated, and disponed’ the subjects in question to the said John Martin, his heirs and assignees, with entry at the term of Martinmas 1855, but reserving to the said James Rae and Margaret Barrie the liferent use and enjoyment by them, and the survivor of them, of the dwelling-house then occupied by them in the said subjects, but for their own liferent use and enjoyment of the same allenarly.

The disponee was infeft by instrument of sasine recorded on the 17th December 1853, and entered upon possession of the subjects at the term of Martinmas 1855, and he and his trustees, the present pursuers, have continued to possess and to draw the rents, subject to the reserved liferent in favour of the spouses, until the death of the survivor in 1881.

The defenders, however, who are the children

Page: 310↓

of the marriage between James Rae and Margaret Barrie, maintain that the conveyance in favour of the pursuers' author is invalid and ineffectual, on the ground that their parents were fiduciary fiars for them, and that they had no power to evacuate or revoke the destination of the fee as expressed in the conveyance of 1835. I am of opinion that this contention is not well founded.

In the present question the disposition of 1835 must be regarded as the deed of the spouses, although in form it is a conveyance in their favour, and it follows that until it should be delivered to or for behoof of their children it remained subject to their control, and might be cancelled or recalled at pleasure, since it is not, in my opinion, a tenable proposition that the mere execution of a gratuitous deed in favour of the children of the granter binds the parent so as to exclude revocation— Hill, M. 11,580; M'Intosh, January 28, 1812, F.C., per Lord Meadowbauk; Balvaird, December 5, 1816, F.C. There is nothing, however, which can be founded on as constituting delivery so as to bar revocation, except the fact the parents were infeft. But that is not in my opinion sufficient. The infeftment taken by the parents was insufficient to vest the fiduciary fee, since it is settled law that under conveyances to parents in liferent allenarly and children in fee the fee passes to no one by infeftment in the liferent, but remains upon the old investiture— Falconer v. Wright, January 22, 1824; Houlditch v. Spalding, June 9, 1847. The parents, if they had thought fit, might have vested a fiduciary fee in themselves by taking infeftment in the precise terms of the destination, and if they abstained from doing so it does not appear to me reasonable to infer, from their taking sasine in the liferent, that they thereby intended to put the destination of the fee to their children beyond their power. Now, the effect in law of the mode of infeftment which they adopted was to leave the fee in the seller, so that if they kept the disposition in their own hands they could go back to him and obtain a new conveyance of the fee in a different form. It appears to me that their act in taking sasine in the liferent merely is perfectly consistent with an intention to keep the disposition in their own hands, and subject to their own control, and there is nothing else from which an intention to deliver it, or to treat it as a delivered writ for behoof of their children, can be inferred.

The case differs materially from that of Gilpin v. Martin, 7 Macph. 807, upon which the defenders relied. In that case the purchaser of a piece of land took the disposition to himself for behoof of three of his children nominatim, and to their heirs. The deed remained with him until his death, when it was found that he had executed a mortis causa conveyance in favour of a nephew. This conveyance was found to be ineffectual, the granter not being in titulo to convey the property. But the only title the granter had was a conveyance to him, not in his own right, but for behoof of his children. On the face of the deed, therefore, he was a mere trustee for his children, and there was nothing to show that the price of the trust-estate had not been paid out of their funds. There was no ground therefore for treating the conveyance as his deed in a question between him and his children, and if it were not his deed it had received all the delivery of which it was susceptible by delivery to him as trustee. In the present case delivery to the parents is not delivery as between them and the children, because it is apparent on the face of the deed that the price belonged to the parents, and that the conveyance of the fee to the children was a gratuitous benefit.”

The defenders reclaimed, and argued—The infeftment following on the disposition of 1835 vested an indefeasible right in the children, and consequently the disposition of 1855 was ultra vires of the granters.

Authorities — Cumstie v. Cumstie's Trustees, June 30, 1876, 3 R. 921; Houlditch v. Spalding, June 9, 1847, 9 D. 1204; Falconer v. Wright, January 22, 1824, 2 S. 633, 3 S. 317; Smitton v. Tod, December 12, 1839, 2 D. 225; Ilill v. Hill, M. 11,580; Balvaird v. Latimer, December 5, 1816, F.C.; M'Intosh v. Sproat, January 28, 1812, F.C.; Gilpin v. Martin, May 25, 1869, 7 Macph. 807; Riddell. lnglis, M. 11,577; Leckie v. Leckies, M. Appx. Presumption, No. 1.

At advising—