Scottish Court of Session Decisions

“Mr Jamieson, senior, proposes that, as an inducement to his son to enter into the above arrangement, the fee of the superiority of Arden shall be conveyed over to him absolutely, subject to the liferent of the Lord Advocate, without his paying any consideration therefor to the Other members of the family.

“This general outline of the proposed plan is submitted to the parties for their consideration, so that any additions or alterations may be suggested, whenever the plan is finally approved of, the terms ought to be committed to writing in the form of a regular minute of agreement, as evidence of the intention of the parties, which is the more necessary, as some of them are minors, and it will therefore be proper to have a document in writing to produce to them, as they shall respectively attain to majority.”

Of this memorandum it appeared that Robert Jamieson, junior, had made a holograph copy, but there was no evidence that it had been adopted, further than could be inferred from the deeds afterwards executed and the conduct of Robert Jamieson, junior. These deeds consisted of, 1st, An absolute conveyance executed, in 1827, by Waddell, to Robert Jamieson, junior, of the fee of the superiority mentioned in the memorandum, of which the liferent was held by another party, in virtue whereof he was enrolled as a freeholder in the county of Lanark; and, 2d, A conveyance, also ex facie absolute, of the lands of Arden, wherein the £2000 for which bills had been granted by Mr Jamieson, senior, to Telford's sisters, was declared a real burden on the lands, but there was no declaration of any kind that it was to be preferable to the previously existing debt of £4999. On this conveyance Robert Jamieson, junior, was infeft, it being admitted that he was merely a trustee substituted in place of Waddell, but his right to manage the property was disputed by his father, who instituted legal proceedings to have him interdicted.

In December 1829 he paid interest on the £2000 to one of the pursuer's sisters to the extent of £150, and at the same time promised to grant a bond for the £2000 in corroboration of the heritable security created by the conveyance in his favour, but this offer he afterwards retracted. Other sums to account of interest were paid by the father out of funds belonging to his children, but there was no evidence that they had sanctioned or homologated his having done so. He died in 1832, and thereafter Telford having taken assignations from his mother and sisters to the sums above mentioned as due to them, raised the present action against Robert Jamieson, junior, the eldest son, and the other children, concluding to have it declared that the lauds of Arden had been vested in Waddell, and were held by Robert Jamieson, junior, in trust primo loco for payment of the advance made by him in 1818, which he alleged to have been for behoof of the family generally, find that in a question with the defenders it was a burden over the property preferable to the heritable debt of £4999 vested in them; and to have them ordained to execute the deeds necessary to carry into full effect this alleged primary purpose of the trust; and further, concluding against the defenders personally for payment of the sums in question. He adduced no evidence of his averments apart from the proceedings above detailed, but he contended that the legitimate inference from these was, that the lands were held in trust by Robert Jamieson, junior, for the purposes set forth in the memorandum above quoted, and that the arrangement as there explained had been entered into by the father, acting on behalf of his children, and had been sanctioned and homologated by them; and, in particular, that this must be held to have been the case as to Robert Jamieson, junior, in consequence of his having, after attaining majority, written out with his own hand the memorandum, and then taken the conveyances proposed therein, paid interest and offered to grant a bond of corroboration for the £2000; and, at all events, that his share of the £4999 debt had been extinguished confusione in consequence of his infeftment as proprietor in the lands.

In defence it was pleaded, that, even if the father had entered into an agreement on behalf of his children to postpone their heritable security it would have been ineffectual, they being minors, and also greatly lezed thereby; but that there was no proof adduced or offered relevant to postpone their security; that the memorandum was a proposal merely, never agreed to and never carried into execution, as the conveyance subsequently executed by Waddell in favour of Robert Jamieson, junior (which, and not the memorandum, must be looked to as showing what was the concluded arrangement), simply declared the £2000 a real burden, but did not pretend to make it preferable to the existing security, and that the children had done nothing to sanction such a claim as that now made. Separately for Robert Jamieson, junior, it was specially contended, with reference to the plea of the alleged extinction of his share of the heritable debt confusione, that having taken the conveyance confessedly as trustee, though by ex facie absolute titles, this could in no way affect his prior right as an heritable creditor, or give Telford an advantage which he could not have possessed had the trustee been a third party.

The Lord Ordinary pronounced the following interlocutor, adding the subjoined note: ^*—“In respect, Imo, That there is no proof, or relevant

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* “This is a case of a very complicated description, and raising a great number of rather difficult questions,—the ground, or solution of which it would be impossible to state intelligibly in the compass of a note.

“If the preceding judgment is taken to review, and the argument gone into as largely and elaborately as it was before the Lord Ordinary, he thinks it most likely that the Court will wish to consider it in cases. But, having heard it very fully, he has not thought it right to put parties to the expense of a written debate before giving them the chance of settling, on the judgment he has seen reason to pronounce.

“He cannot here enter into any detailed exposition of the grounds of that judgment; but he may state briefly, 1st, That he thinks there is no clear evidence that either the pursuer or Robert Jamieson, the father, contemplated, when the money was first advanced by the former, that the amount was to be secured on the lands preferably to the prior security of the defenders. 2d, That the father had no power of himself so to postpone the security constituted in favour of his children, and that it does not appear that he ever did any thing so to postpone it. 3d, That the (unsigned) memorandum of 1826, though copied or written out by the hand of the defender, Robert Jamieson, the son, then newly come of age, cannot be held to have originated with, or to have been prepared or suggested by him, but by Mr Strachan, who was the law agent of the father, and also of the pursuer of this action. 4th, That this memorandum bears, on the face of it, to be merely a paper of suggestions for consideration, and neither binding, or intended to be binding, on any of the parties concerned, till reduced, with such variations as might be adopted, into the form of a regular signed contract, or other probative deed. 5th, That these suggestions must be held to have resulted in, and been consummated by, the final execution of the disposition by George Waddell to Robert Jamieson, the son, and his infeftment thereon in 1828; in which, instead of a declaration of trust for behoof of the pursuer primo loco, there is merely a constitution of his debt as a real burden on the property, to the extent of £2000, which would only entitle him to rank after all other heritable securities previously completed, 6th, That no acts are condescended on, on the part of the defenders, that import any recognition or homologation of any preferable right in the pursuer, as in competition with their primary security for £4999. 7th, That it is not necessary to distinguish between the cases of such of the children as were major or minor in 1826 or 1828, or at the date of this action, or to enquire as to which of them, the quadrieninium utile had expired before the last of these dates, inasmuch as no deed was granted, or act done in their names, which could require to be set aside by reduction ex capite minorennitatis.

“These propositions, the Lord Ordinary thinks, exhaust the merits of the case, in so far as concerns all the defenders except Robert Jamieson, who is now feudally vested with the property. As to him there may be more difficulty; and the Lord Ordinary was at one time inclined to think, that, by taking to himself the fee of the estate, over which he and the other defenders had previously held a preferable security, he had, to the extent of his own share, extinguished his right, as a creditor, confusions, and could not recur to that right for the purpose of obtaining a preference over the pursuer, whose debt was made a real burden on the property in the very title by which he (Robert Jamieson) became the proprietor. Upon further consideration, however, the Lord Ordinary has seen reason to distrust this view of the matter, and to assoilzie Robert Jamieson, as well as the other defenders. If the pursuer had made the advances to Robert Jamieson personally, and he had actually purchased the subject by the help of those advances, for his own benefit, as an individual, there would have been little doubt on the matter. But the money had been advanced near twenty years before, to Robert Jamieson, the father, and stood, without any voucher or security whatever, till 1825, when the pursuer seems to have been satisfied with getting the father's bills for the amount; and, though Mr Waddell is admitted to have held the lands in trust for all concerned, there is, in the first place, no evidence that this trust was for the benefit of the pursuer, preferably or primo loco; and, 2d, It seems clear that no such preference could have been effectually created, to the prejudice of the defenders, who were all in minority, without their consent, or the interposition of a Court of law. The pursuer, therefore, at that time, and till the title was made up in the person of Robert Jamieson, the son, could not, by any diligence, have obtained such a preference as he now claims, or adjudged more than the reversion of the estate, after satisfying the prior claims of the defenders. Now, it was in this situation, that, Robert Jamieson, junior, being in no way a debtor personally to the pursuer, and holding a share in a security indisputably preferable to any which that person could acquire, consents to become the feudal holder of the lands, as trustee for the rest of his family, and to constitute the debt of the pursuer a real burden on the property, by taking a gratuitous disposition, under that burden, from Waddell, the former trustee. In these circumstances, the Lord Ordinary is of opinion that it cannot be held that Robert Jamieson's preferable right as a creditor, to a share of the primary security, was extinguished by his becoming the nominal fiar of the property, or that the transference of the feudal title from Waddell to him, should have the effect of giving the pursuer any preference which he would not have acquired by its transference to any other person. It plainly was never in contemplation to place Robert Jamieson's interest in the, primary security on any other footing than that of the other joint holders; and, as they could not possibly be prejudiced by his holding the feudal title for the common behoof, so it is thought that he ought not to suffer any such prejudice in relation to his own share. He has all along offered to account for his intromissions, and to let the property, with all its proceeds since his infeftment, be distributed according to the legal preferences of the parties concerned.

“The Lord Ordinary being of opinion that no trust could be constituted in the person of Waddell, under which the pursuer could acquire any preference over the defenders, then all in pupillarity, has not thought it necessary to determine in what way the alleged design or attempt to constitute such a trust could now be established. There is no writing under Waddell's hand; and his oath has not been formally tendered. But if these statutory proofs were attainable, the Lord Ordinary would hold them of very questionable authority in such a case as the present. They are conclusive and indispensable as to the question, whether the party in possession is a trustee or an absolute proprietor; but, where the character of trustee generally is admitted on all hands, it is more than doubtful whether they can be resorted to to prove the purposes of the trust, or the relative interests of those beneficially concerned, and the difficulty is increased when such evidence is only referred to years after the trustee has resigned that character, and been entirely denuded,”