Scottish Court of Session Decisions

In February 1777, Captain James Gilchrist granted two bills, payable at Candlemas 1778, to Mrs Ann and Mrs Margaret Hamilton, for £36 and £41 respectively. Ann Hamilton subsequently came to be vested with the debt in both bills, which were not paid when they fell due. In July 1784, she obtained decreet for the sums therein, against the two heirs-portioners of Gilchrist; one of whom paid her half of the debt, while the remainder continued to be unpaid by the other heir-portioner, the Countess of Dundonald.

In 1787, Margaret and Ann Hamilton executed a deed, bearing to be their last will, making over to the survivor the liferent of all “sums of money, goods, gear, and effects,” belonging to them, and agreeing that the survivor should have full power to dispose of the remainder and residue thereof, as she should think fit.

In order to recover payment of the debt which was still unpaid, Ann Hamilton executed, in 1792, an assignation in favour of George Riddoch, writer in Glasgow, and his heirs and assignees, of one-half of the sum contained in the decreet of 1784, “in trust for her use and behoof, and for her executors and assignees,” with power to Riddoch to call and pursue for payment thereof. This trust-assignation was accepted by Riddoch in a letter as follows;—“At your earnest request and desire, I hereby accept of the assignation, of which the within is a copy; and promise and oblige myself and my heirs, to denude and divest myself of the said assignation, and sums and diligence thereby conveyed to me as trustee for you, with all that may follow on the same, in your own favour, or in favour of Mrs Margaret Hamilton, your sister-german, or in favour of any other person or persons, to whom the same may be conveyed, or any person or persons you may name by missive under your hand: you, or your assignees, always freeing and relieving me and my heirs of the expenses that may be incurred in obtaining a decreet of transference, and leading an adjudication for payment of the sums assigned, and any other expenses that may be incurred anent the premises.”

In March 1793, following up this arrangement, Riddoch obtained decree before the Court of Session for the sum in question against the defender, the Earl of Dundonald (then Lord Cochrane), as representing his mother, the Countess, who had died; and in the following year he obtained decree of adjudication against his Lordship in favour of himself and his heirs and assignees. Nothing followed upon this adjudication.

In April 1796, Ann Hamilton died. She was survived by her sister Margaret, who, in December following, without having confirmed, executed an assignation in favour of her niece, Violet Roberton, and her heirs and assignees, of “all and sundry goods, gear, debts, and sums of money,” belonging to her, with power to pursue for and dispose of the residue of her effects. Margaret Hamilton died in April 1797. She was survived by Violet Roberton, who had, in 1789, executed a disposition, mortis causa, of the “moveable” property, of which she might die possessed, in favour of certain relations, including the pursuer, Elizabeth Crawford and others. She expede no confirmation under Ann Hamilton's deed. By a codicil in 1795, she assigned and disponed to her relations, mentioned in the deed of 1789, all and sundry heritable means and estate which should pertain to her at the time of her death. Thereafter Riddoch died, without having taken any farther steps to fulfil the purposes of the trust above mentioned, or having ever denuded thereof. Violet Roberton died in 1815. Thereafter Mrs Elizabeth Crawford or Stewart and certain other parties, as deriving right through Violet Roberton's settlement, raised action against the Earl of Dundonald and against Charles Nicol, Riddoch's heir-at-law, and also against General John Hamilton, heir-at-law of the Miss Hamiltons above mentioned, narrating the circumstances and deeds in substance as above stated, and setting forth that Nicol refused to serve himself heir to Riddoch, and to take up the trust which had expired, and it was necessary to raise action in order to vest the pursuers, for their respective interests, in the right to the foresaid sums, and to the decree of adjudication, “for the purpose of enabling them to carry the trust into effect, and recover payment of the sums of money therein contained.” The summons concluded to have it found and declared that the trust had fallen and expired, and that the right to the sums in question, and to the decree of adjudication, pertained to the pursuers for the purpose aforesaid; and to have it declared that the pursuers had right to these sums and to the adjudication, that they might proceed for their own behoof to fulfil the purposes of the trust, and recover payment of the money, and render the adjudication effectual; and also that, as coming in place of Riddoch, they had right to apply for and obtain charters of adjudication, &c., so that they might be enabled to carry the purposes of the trust into effect, and recover payment of the said sums for their own behoof.

Of the three defenders called, Nicol made no appearance; General Hamilton died after the execution of the summons, and was succeeded by his grandson, who compeared for his interest by his curator bonis. The Earl of Dundonald appeared, and pleaded against the action, 1st, That the pursuers have no right or title to the beneficial interest under the trust in question, in consequence of the debt being heritable, and not being carried by the testamentary deeds founded on; 2d, That, even though the pursuers had the right, they have not adopted the proper means for making it effectual.

The Lord Ordinary pronounced the following interlocutor, adding the subjoined note ^*:—“Finds, 1st, That the debts originally constituted by the two several bills of exchange libelled, were made heritable by the decreet of adjudication obtained thereon in March, 1794, by the deceased George Riddoch, acting as trustee for the creditors in these bills, the said decreet having been obtained with the knowledge and consent of the said creditors, and it must be presumed in conformity with their instruction. Finds, 2d, That the trust to the said George Riddoch being conceived not to him alone individually, but to him and his heirs and assignees; and the decreet of adjudication having been consequently taken, and the lands of the defender thereby adjudged to him and his heirs and assignees, without any mention whatever of the trustees, and there being, according to the pursuers' own statement, a known heir of the said George Riddoch in existence, it would not have been competent to the trustees themselves, or to any one to whom their right to the debt had been unexceptionably conveyed, to acquire right to the said adjudication, or to make it effectual against the only compearing defender (the alleged debtor and owner of the adjudged lands), by such a general declaration and adjudication as the present, or in any other way than by charging the heir of the said George Riddoch to enter, and afterwards adjudging from him the right to the said adjudication and the lands thereby affected. Finds, 3d, That the radical, or primary title under which the pursuers now claim right to the said debt and adjudication, is a settlement or testament of Ann Hamilton in favour of Violet Roberton, dated in 1796, but that as the said settlement contains no mention of the bills in question, or the adjudication subsequently obtained, but bears merely to be a conveyance of all goods, gear, debts, and sums of money belonging to the testator, the said testament or deed of settlement was inhabile to convey any right to the said bills and adjudication, the equitable right to which still remains in bonis of the said Ann Hamilton, and the formal or real right in hæreditate jacente of the said George Riddoch. Finds, 4th, That it does not appear that Violet Roberton ever expede any confirmation under the deed of Ann Hamilton, so as to vest in herself, or entitle her to convey to others any of the rights which might have been otherwise transmitted by that deed. Finds, 5th, That the testamentary deed executed by Violet Roberton in favour of the pursuers (or persons whom they represent) was a deed by which she merely legates and bequeaths, in general terms, all sums of money, debts, goods, and gear, furniture, and other moveable subjects whatever; and that by this deed she appoints a special executor different from any of the pursuers or those they represent; and that no confirmation appears to have ever been expede, either by that executor or any other person; and therefore, and on the whole matter, sustains the defences, assoilzies the defender, and decerns. Finds expenses due.”

The pursuers having reclaimed, the Court (Nov. 25, 1836) ordered cases, in which it was maintained in support of the action,—

1. Admitting the debt to have been made heritable, it is a different question whether, considering the circumstances under which the adjudication was led, it became heritable so far as regards succession. The debt must be held to have remained moveable, according to its original constitution, unless the intention of the creditor has been expressed, or is to be clearly presumed that the supervening heritable security should have the effect of making it in every respect heritable. ¹ The act of a party is not to be held to operate beyond his intention, according to the civil law maxim—actus agentium non operantur ultra eorum intentionem; and in this case the trust was constituted with the sole intention of recovering payment; from which it follows that the trust ought not to be allowed to operate to another and quite a different effect, not within the contemplation of the party, and guarded against by the terms of the trust. Moreover, the destination in the trust-deed and acceptance to Ann Hamilton's heirs and assignees indicates the intention now contended for on the part of the truster; and in terms of such destination the beneficial interest might be effectually carried by the testamentary deeds in question. ² The want of confirmation by any of the parties who successively derived right under these deeds, cannot have the effect of preventing the vesting and transmission of such beneficial interest. ³

2. The form of action now adopted by the pursuers for making their right effectual, is competent and regular, according to the solemn decision in Dalziel, 11th March, 1756, ⁴ which is confirmed by the practice of the profession. The proceeding by declarator is sufficient to extinguish a real right, though not to convey it; and it is only the extinction of the real right that is wanted in such an action as the present, as the first step in the proceeding.

In support of the defence it was pleaded;—

1. By the decree of adjudication in favour of Riddoch, obtained in fulfilment of the trust conferred on him, the debt in question became heritable to all intents and purposes, and could not be conveyed by testaments or latter wills, which were intended, and at all events were effectual only to bequeath moveables. ¹ Nor can the rule of law applicable to the present case be affected by the cases referred to by the pursuers, which relate to exceptions confirming the rule. This is not a trust for recovering payment of a sum of money or for selling an heritable subject, and making payment of the price to the parties beneficially interested; but it is a trust, the avowed purpose of which was, that Riddoch should lead an adjudication, and that having done so he should convey the security thus obtained to the nominee of the truster. As a corollary from this the pursuers are not entitled to take up the decreet of adjudication itself, nor are there termini habiles in the summons for their doing so. ² But even assuming that the debt in question remained moveable, it was still not validly transferred by the deeds founded on, inasmuch as the testators, by whom the deeds were executed, never having confirmed the debt, were not vested with a right thereto, so as to entitle them to assign and convey the same.

2. The true right competent to Ann Hamilton and her heirs, with reference to the debt and adjudication, is a jus actionis against Riddoch and his heirs to oblige them to denude of the decree of adjudication, valeat quantum, in favour of Ann Hamilton's heirs in heritage. The obligation on Riddoch's heir plainly is to denude of the heritable right created by the adjudication, in favour of the heir in heritage of the truster, for whose behoof the right was obtained. If the adjudication be still subsisting, it is in hæreditate jacente of Riddoch, and a decree in this action would not import an effectual transfer of the debt from the hæreditas jacens of Riddoch to the pursuers, or protect the defender against Riddoch's heir or his creditors. And if it be held that Riddoch was a mere trustee, and that the beneficial interest in the adjudication was in Ann or in Margaret Hamilton, it is equally clear that her heir has an interest which has not been provided for. The lodging of a minute for him by his curator bonis is not the mode in which the heir of an heritable creditor can be disposed of.

The cause was this day put out for advising.