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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ainslie v. Ainslie [1872] ScotLR 9_546_1 (22 June 1872) URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0546_1.html Cite as: [1872] SLR 9_546_1, [1872] ScotLR 9_546_1 |
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Page: 546↓
Circumstances in which the Court refused to allow a proof at large, both in regard to a conclusion of reduction of certain deeds ex facie valid, and also in regard to a conclusion of declarator of trust; the deeds by which the trust was said to have been constituted were ex facie absolute conveyances, and there was no offer to prove the trust by the writ or oath of the trustee.
William and Henry Ainslie, who were brothers, entered into partnership in 1831 as general merchants in Fort-William. This partnership continued until 1856, when it was dissolved by deed of dissolution of copartnery by William and Henry Ainslie, dated 3d January of that year. This deed was holograph of William Ainslie, and was subscribed
Page: 547↓
by Henry Ainslie in presence of witnesses. Besides this deed, there were three other deeds granted by William Ainslie in favour of Henry Ainslie. In the first place, there was a disposition, dated 1st May 1852, which was duly subscribed and tested; in the second place, there was an assignation, dated 5th January 1856, which was holograph of the granter William Ainslie, and had a testing clause and witnesses; in the third place, there was an assignation, dated the 12th April 1856, which was subscribed and tested in ordinary form. In consequence of these deeds the partnership was dissolved, and Henry Ainslie continued to carry on business, and enjoyed the absolute use and possession of the property assigned and disponed to him by William Ainslie in the deeds already referred to.
In 1871, however, William Ainslie alleged that the deeds of 3d January and 5th January were invalid, on the ground that the witnesses had not seen him sign, and that their signatures had been adhibited long after the date in the testing clause. He also averred, in regard to the disposition and assignation, that although they were ex facie absolute conveyances by him to his brother Henry, yet they were not really so, but were truly conveyances in trust, and that there had been an arrangement to this effect between him and his brother.
He accordingly raised an action against his brother Henry, containing conclusions—(1) for reduction of all these deeds; (2) for a declarator of trust, and (3) for count, reckoning, and payment.
The Lord Ordinary ( Jerviswoode) pronounced the following interlocutor:—
“ Edinburgh, 4 th June 1872.—The Lord Ordinary having heard counsel, and made avizandum, and considered the debate and whole process—before answer, allows to both parties a proof of their respective averments on record, said proof to proceed before himself, on a day to be hereafter named.”
The defender reclaimed.
Shand and M'Kie for him.
Taylor Innes for the pursuer.
At advising—
There are three conclusions in this action—first, for reduction of certain deeds; second, a declarator of trust; and third, a conclusion for accounting. Now, whether there is to be an accounting or not we need not at present determine, but if an accounting should ultimately be found necessary, it will make a material difference whether the pursuer prevails or not in the reduction and declarator of trust, and we must dispose of these in the first place.
As regards the reduction, I see no ground for it at all in reference to the deeds of 1st May 1852 and 12th April 1856. The only thing which has the semblance of an attack upon them is the averment that although the deeds bore to be granted for onerous causes, they were really granted for temporary purposes, according to arrangement between the defender and pursuer. Now, this may be an averment of trust, but there is here no ground for reduction. This, then, confines the question as to reduction to the two deeds of 3d and 5th January 1856. In regard to them the pursuer's averment is this—“The said first-mentioned deed bears to have been signed by the pursuer at Fort William on the 3d January 1856, being the same day with the signature of the defender; and the other deed to have been signed there on the 5th January 1856. They were not so signed, and the pursuer was not at Fort William for many months before or after the alleged date. They bear also to have been signed before certain witnesses. They were not so signed, nor was the pretended signature of the pursuer ever acknowledged to the said witnesses; on the contrary, the signatures of the witnesses were procured to be adhibited to the said deeds by the defender in the absence of the pursuer, and they were so adhibited at the defender's instance at or near Fort William, while the pursuer was, in the knowledge of the defender, living in Manchester, and they were adhibited a year and a-half after the dates which the deeds bear.” Now, there is a distinction between these two deeds. The last is a unilateral deed issuing from William to Henry, and Henry does not subscribe, and is not a party to it. This deed appears to be written by the pursuer, and the testing clause states that it is so, and it is not alleged that that statement is inaccurate. So the deed is holograph, and the allegation as to the execution of the deed as regards witnesses is wholly irrelevant, as no testing is required. As regards the other deed, the dissolution of the 3d January, it is in a different position from the deed we have just been considering, for it is a bilateral deed, and is subscribed by both the pursuer and defender. As regards the pursuer, this deed stands in the same position as the deed of the fifth, for it is written and subscribed by him. But in this case we must have a valid subscription by both parties, and if the pursuer had averred that Henry's signature had not been before witnesses, that would have been a different case. As it is, however, he only says that his own was not before witnesses, and as the deed is holograph of him, and he does not deny that the signature is his, the deed so far as he (William) is concerned is good. And as regards Henry the deed is subscribed and witnessed, so the deed is holograph as regards the pursuer and tested as regards the defender. So I am of opinion that the conclusions of the summons for reduction are irrelevant, and that as regards them the action should be dismissed.
As regards the declarator of trust, it is almost unnecessary to say anything, for it was not maintained by counsel that it can be sustained except upon the writ or oath of the defender. The learned counsel indeed referred to the averment in the condescendence, that the defender had a fraudulent intention when he accepted the trust; but to allow a proof at large upon this would be to frustrate the statute, and cannot be sanctioned. This is a pure declarator of trust, and the pursuer must rest upon the writ or oath of the defender.
The only ground of reduction is the averment that the two deeds of the 3d and 5th January 1856 are not duly tested, because witnesses did not see the pursuer sign. Now, the obvious answer to this is, that as far as he is concerned both the deeds are holograph.
As regards the declarator of trust, what is said about it is this, that the pursuer “resolved to hand over to his brother, the defender, as trustee for him, the whole property of which the pursuer was possessed, and at the same time to take up his own
Page: 548↓
Solicitors: Agents for the Pursuer— Lindsay, Paterson, & Hall, W.S.
Agents for the Defender— Wormald & Anderson, W.S.
