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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wink (Speirs' Trustee) v. Douglas Speirs [1867] ScotLR 5_76 (3 December 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0076.html Cite as: [1867] SLR 5_76, [1867] ScotLR 5_76 |
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Page: 76↓
Circumstances in which held ( Lord Cowan diss.) that a latent trust could be proved contrary to the provisions of the Act of 1696 prout de jure, the Act binding one of the parties to the alleged trust himself, but not creditors alleging that the trust had its origin in a fraudulent attempt to defeat them of their rights.
This was an action at the instance of the trustee on the sequestrated estate of the late Robert Speirs, sometime plumber in Glasgow, against Douglas Speirs, brother of the said Robert Speirs; and the object of the action was to recover for the creditors of the deceased the pro indiviso half of certain subjects in Glasgow held under an ex facie absolute
Page: 77↓
title by the defender, but said to be so held by him in trust for the deceased. The pursuer's allegation was, that in November 1856 the defender and the deceased purchased, as a joint adventure, certain house property in Richard Street, Glasgow, the price being paid between them in certain proportions; that when this purchase was made, Robert Speirs was to some extent involved with certain parties in Glasgow, who were engaged in building speculations attended with considerable risk; and that, for the fraudulent purpose of keeping the property from the creditors of the said Robert Speirs, in the event of his becoming bankrupt, it was arranged between him and the defender that the title should be taken in the meantime in the defender's name.
The defence was a denial of the pursuer's statement; an allegation that the money paid by Robert Speirs toward the purchase was a loan which had been long since repaid; and pleas, inter alia, to the effect that the pursuer's averments could only be proved by the writ or oath of the defender.
The Lord Ordinary ( Jerviswoode) held that, although in the general case an averment of latent trust could only be proved by writ or oath, as required by the statute of 1696, yet that where fraud was alleged, proof prout de jure was competent. His lordship, therefore, ordered issues.
The defender reclaimed.
Young and Scott for him.
Clark and Shand in answer.
The Court adhered, substituting, however, an order for proof under the Evidence Act for the order for issues.
Their Lordships thought that, while the Act of 1696 was effectual against one of the parties to a latent trust who sought to prove that trust otherwise than by writ or oath, it was not effectual against creditors of such a party alleging that the trust had its origin in a conspiracy entered into for the purpose of defrauding them or their predecessors.
Solicitors: Agents for Pursuer— Ronald & Ritchie, S.S.C.
Agent for Defender— James Webster, S.S.C.
