Scottish Court of Session Decisions

Mrs Lillias Ballantyne Garroway or Young, with the consent and concurrence of her husband James Young, Braehead, Thorntonhall,

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Lanarkshire, raised an action against James Paton, James Bone, and Robert Yorston as trustees acting under a deed of declaration of trust executed by them and the deceased John Hogarth, writer, Glasgow, concluding for reduction of a bond and disposition in security for £400 dated 4th June 1907, and recorded on 8th January 1908, granted by the pursuer with the special advice and consent of her husband in favour of the defenders as trustees foresaid over the dwelling-house at Braehead belonging to the pursuer.

The testing clause of the bond was in these terms:—“In witness whereof, these presents, written on this and the two preceding pages by Thomas Reilly, clerk to Yorston and Hogarth, writers, Glasgow, are (together with the inventory of writs annexed hereto) subscribed by us the said James Young and Lillias Ballantyne Garroway or Young, both at Glasgow, upon the fourth day of June Nineteen hundred and seven, before these witnesses, the said Thomas Reilly and Robert Gentles, also clerk to the said Yorston and Hogarth.”

The pursuer averred that she did not sign any bond in Glasgow on 4th June 1907 before the above witnesses; that on or about that date she did sign the bond at Thorntonhall but not before witnesses; that the bond was never delivered to the defenders or anyone on their behalf, and that Mr Hogarth, who acted as the agent of both parties, got the bond from her on condition that it should not be delivered to the defenders unless certain existing bonds were discharged; and that this condition was never purified.

The pursuer pleaded—“The alleged bond and disposition in security falls to be reduced in respect that (1) It is not the deed of the pursuer, executed by her as the law requires. (2) It was never delivered by her to the defenders or anyone acting on their behalf, et separatim, was only delivered to the defenders, or anyone on their behalf, under a condition which has never been purified. (3) It was obtained from the pursuer by fraud of the defenders' agent.”

The defenders pleaded—“(2) The averments of the pursuer being irrelevant and insufficient to support the conclusions of the summons the action ought to be dismissed. … (4) The said bond and disposition in security being the deed of the pursuer, and validly executed and delivered, the decree sought should be refused.”

On 10th November 1908 the Lord Ordinary ( Guthrie) allowed to the pursuer a proof of her averments in support of the first head of her plea-in-law, and to the defenders a conjunct probation.

Proof was thereafter led, and it was proved that on 4th June 1907, the day on which the bond bore to be signed, Mr Hogarth came to Thorntonhall from Glasgow, bringing the deed, and got the signatures of the pursuer and her husband; that neither pursuer nor her husband were in Glasgow on that day; neither of the instrumentary witnesses were at Thorntonhall that day; the instrumentary witnesses did not remember the signing of the particular deed, but had never signed any deed as instrumentary witnesses without seeing the granter sign or hearing him acknowledge his signature.

On 27th March 1909 the Lord Ordinary assoilzied the defenders.

Opinion.—“The document the validity of which is challenged in this case is a bond and disposition in security bearing to be ‘subscribed by us, the said James Young and Lillias Ballantyne Garroway or Young, both at Glasgow, upon the fourth day of June 1907, before these witnesses, the said Thomas Reilly and Robert Gentles, also clerk to the said Yorston and Hogarth.’ Mrs Young and her husband admit that they signed the deed on 4th June 1907, but they assert that this took place in their own house at Thorntonhall, and not in Glasgow, and they challenge its validity on the ground that they neither signed in the presence of Reilly and Gentles, nor did they ever acknowledge their signatures to Reilly and Gentles. Proof was disallowed of the other grounds of challenge.

“The onus admittedly lies on the pursuer. The cases show that the statements of the persons interested, unsupported by unbiassed evidence, will not suffice, if the witnesses, although unable to recal the particular transaction, depone, so that the Court believe they are speaking honestly, that they never on any occasion signed as witnesses without first seeing the parties sign or hearing them acknowledge their subscriptions.

In this case the only evidence led by the pursuer requiring attention consists of that of the pursuer, her husband James Young, Mrs Elizabeth Steen, the pursuer's sister-in-law Mrs Susan Steen, Mrs Elizabeth Steen's daughter-in-law, Stephen Young, Mr Young's brother, and John Cran, who is in Mr Young's employment. On the other hand the subscribing witnesses Gentles and Reilly (Reilly wrote the testing clause containing the statements as to the deed having been signed at Glasgow before himself and Gentles) are clear that they never signed any deed as witnesses without first seeing the parties subscribe or hearing them acknowledge their subscriptions, and that they have no doubt they followed their invariable practice on this occasion. I saw no reason to disbelieve their evidence, and I can have no doubt that if Hogarth, their master, had for some reason of his own induced Reilly to put two statements into the testing clause which he Reilly must have known to be untrue, he could not have forgotten this, nor could he and Gentles have forgotten their being told to subscribe a deed as witnesses when they had neither seen the parties subscribe nor heard them acknowledge their subscriptions. Gentles says—‘If Mr Hogarth asked me to put my name to a deed when I had not seen it signed by the parties, I would not have done it.’

Had it appeared that Hogarth had any motive to induce him to omit one of the legal requisites, and had such omission not

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involved the co-operation of Reilly and Gentles, I should have been easily convinced that such omission had taken place. But it was to Hogarth's interest to have the deed unchallengeable, and I accept the evidence of Reilly and Gentles that they never on any occasion were parties to such a proceeding as that alleged in this case.

The defenders also maintained under their fourth plea that even if the pursuer's averments in condescendence 3 were established, they were still entitled to absolvitor. The pursuer deponed—‘When I signed the paper I knew I was signing something which bound me, and that it was to be acted upon.’ Proof of the pursuer's averments of non-delivery, or conditional delivery, and of fraud, having been disallowed, it must be taken, the deed having been recorded, that it was delivered, and it must be taken that the admission in the deed of receipt of £400 was correct. They referred to Baird's Trustee v. Murray, 11 R. 153, 158 to 160. I think the defenders are right, but in the view I take of the evidence I do not need to decide the case on that ground.”

The pursuer reclaimed, and argued—It was clear on the evidence that the pursuer and her husband were not in Glasgow on the day the bond bore to be signed, nor had they been brought together with the instrumentary witnesses anywhere on that day. That being established, the evidence of the instrumentary witnesses, while no doubt perfectly honest, could not be relied on. The pursuer had therefore discharged the onus which lay upon her, and it was for the defenders to explain how the signatures of the witnesses came to be on the bond. The bond was thus not validly executed— Young v. Ritchie, 1761, Mor. 17,047; Cleland v. Cleland, December 15, 1838, 1 D. 254 ( per Lord Mackenzie, at p. 260); Forrests v. Low's Trustees, 1907, S.C. 1240, 44 S.L.R. 925 ( per Lord Kinnear at p. 1252, p. 932). In any event the pursuer was entitled to proof of the other grounds of challenge.

Argued for the defenders (respondents)—The granter of an ex facie probative deed who alleged that it had not been signed in the presence of witnesses undertook a very heavy onus— Baird's Trustee v. Murray, November 21, 1883, 11 R. 153, 21 S.L.R. 109 ( per Inglis, L.P., at p. 156, p. 112, Lord Shand at p. 164, p. 116); Smith v. Bank of Scotland, 1824, 2 Sh. App. 265 ( per Lord Gifford, at p. 286). The pursuer here had not discharged that onus. The evidence of the pursuer and her husband was uncorroborated, and that was not sufficient, especially in view of the evidence of the instrumentary witnesses— Forrests v. Low's Trustees, cit. In any event, even if the pursuer had discharged the onus that lay upon her, that was not sufficient to reduce the deed.