Scottish Court of Session Decisions

The late Patrick Nicolson left two daughters, one of whom was Mrs Flora Macdonald. Her law-agent, the late Mr Macdonald Buchanan, made up a title for her to a heritable bond for £300, held by her father, by obtaining a precept of clare constat in her favour as heir of provision to her father. She conveyed the bond to Messrs Macqueen and Mackintosh, on receiving from them payment of its contents. These gentlemen, before taking infeftment, discovered that her father had died intestate, quoad the bond, so that she was only a co-heiress with her sister, and, therefore, her title had been erroneously made up as heir of provision. They intimated this to Mr Buchanan, and claimed repetition, unless he cured the defect in the titles. Mr Buchanan, as agent for Mrs M'Leod, paid funds of hers, to the extent of the bond, to Messrs Macqueen and Mackintosh, and obtained from them a conveyance to the bond in her favour, with warrandice from fact and deed; and, in the year following, she was infeft under the precept in the conveyance granted by Mrs Flora Macdonald. After several years, Mrs M'Leod made a demand of the contents of the bond from the debtor, which was refused, in respect that she was not in titulo to grant a valid discharge.

In these circumstances, Mrs M'Leod raised an action against Mrs Flora Macdonald, as being liable to repeat the contents of the bond which she had received, and also against Mrs Macdonald Buchanan, as representing her husband, who was liable in reparation, in respect of having been the law-agent by whom the money had been invested on this security, after he was specially warned by Messrs Macqueen and Mackintosh of its invalidity.

Mrs Flora Macdonald pleaded that Mrs Buchanan was not only liable in relief to her, as representing her law-agent who had erroneously made up her titles to the bond, but was primarily liable to the pursuer, as being also law-agent of the pursuer, to indemnify her for investing her money upon what he knew to be bad security. Mrs Buchanan should, therefore, be first discussed; and at least the defender was no farther liable than to make up a good title to the pursuer, which she would undertake to do, after communicating with her sister's representative in the East Indies.

Mrs Buchanan pleaded, that as Mrs Flora Macdonald had received the contents of the bond, she was primarily liable to the pursuer, and must be first discussed. Farther, Mrs Flora Macdonald had good right to one-half of the bond as one of two co-heiresses; and, as the alleged error of Mr Buchanan was in making up her title to a half more than her own, and causing her to be paid accordingly, no claim of relief could arise at her instance against him, or his representative, for being made to repeat an over-payment.

The pursuer answered, that both defenders were immediately and directly liable to her, leaving them to settle all after questions of relief among themselves; and that, in the special circumstances, as it would require long delay before an answer could be received from the representative in the East Indies, and as his answer might be a refusal to concur in making up a title, the pursuer could not be compelled to lie out of her money in the mean time.

The Lord Ordinary “decerned against both defenders, for payment to the pursuer of the principal sum, and interest thereof, as libelled; reserving to the said defenders their relief each against the other as accords: and the pursuer, on receiving payment, granting a conveyance to the heritable bond, in as far as she has right thereto; and found the said defenders liable in expenses.”

The defenders reclaimed.