Scottish Court of Session Decisions

Subject_1 FRAUD.
Subject_2 SECT. III.

Underhand dealing.

Ballantyne
v.
Neilson

1682. November.
Case No. No 20.

An heir of line agreed with a remoter relation to divide whatever should fall to either, through the death of the uncle of the former. The agreement contained a submission to an arbiter named. This contract was ratified by both parties the day after the decease of the predecessor. The heir of line, on whom the estate devolved, obtained reduction of the contract, upon proving that the arbiter had imposed upon him, by falsely representing that the defunct had a great inclination to make the other party his heir, and that when he ratified the contract, the arbiter concealed from him that the succession had devolved to him.

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Ballantyne having entered into a contract with Alexander Bonnar, whereby they obliged themselves to divide equally betwixt them, whatever means should fall to either through the decease of James Bonnar, uncle to Ballantyne; and submitted any difference that might arise, to the determination of Cornelius Neilson; to whom for his pains they granted a bond, whereby they obliged themselves, that a fourth part of what they should succeed to in manner foresaid, charges deducted, should belong to him; which contract and bond were ratified by both parties the day after James Bonnar's decease. Cornelius Neilson having afterwards acquired a right to Alexander Bonnar's half, he charged Ballantyne upon the agreement and bond to denude thereof, and of the foresaid fourth part; who raised suspension and reduction upon the reason of fraud and circumvention, qualified thus: That Ballantyne was grossly imposed upon, sunder pretence of friendship, by Neilson, to go into so disadvantageous a contract, about the succession to his uncle's estate, with one who was nothing related to the defunct, but only one of his name, and had not the expectation of a sixpence from him; by reasons falsely representing the succession transacted as a thing uncertain, in so far as James Bonnar had a great inclination to make Alexander his heir; and that Neilson had deceitfully elicited the bond in favour of himself, without any onerous cause, for his pretended pains in securing James Bonnar's means to one or other of the contractors; and to palliate the contrivance, had caused them transcribe and direct a letter to him from a copy wrote by himself, for drawing of the contract, and take an oath of secrecy not to discover what was done to any body; nay, further, had endeavoured to bribe Ballantyne's friends to desert him in the affair; and one of the witnesses in the contract did not remember that the papers were read at subscribing. Again, such a contract is pactum de hæreditate viventis, which law reprobates as contra bonos mores; albeit an agreement with a person concerning the future succession to his own estate is allowed, as in the case of tailzies and contracts of marriage.

Answered for Cornelius Neilson; That Ballantyne being major, sciens et prudens, might enter into such a contract; which was rational at the time, when it was dubious which of the parties would succeed; Alexander Bonnar being one of the same name, though a remoter relation than Ballantyne, who now eventually comes to have it jure sanguinis, 2do, Ballantyne's ratification after his uncle's death, when there was jus delatum to him, takes off all suspicion of circumvention.

Replied, As Ballantyne was deceitfully induced to subscribe the contract, so he was imposed upon to ratify the same, the very day after his uncle's death, while he was ignorant of his having right as heir to the defunct's estate; which was but a continuation of the former fraud.

The Lords, before answer, allowed a mutual probation; Ballantyne to prove the qualifications of circumvention, and Neilson to prove his answers.

And the foresaid qualifications of circumvention being proven, the Lords found the agreement and bond were elicited by fraud and circumvention; and that the same fraud and circumvention was continued in impetrating the ratification; so as it cannot confirm and validate the foresaid fraudulent deeds; and therefore reduced the contract, bond and ratification.

Fol. Dic. v. 1. p. 333. Harcarse, (Fraud & Circumvention.) No 502. p. 139.