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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Dowie & Co. v. Tennant [1891] ScotLR 28_758 (23 June 1891) URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0758.html Cite as: [1891] ScotLR 28_758, [1891] SLR 28_758 |
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Page: 758↓
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The proprietor of certain heritable subjects in Scotland, who was domiciled and living in America, after the interchange of improbative missives of sale with a person in this country, signed in favour of said person a disposition of the subjects, which had been prepared by agents in this country acting for both parties. After signing the seller posted the disposition to the agents on 12th, and it reached their hands on 23rd January 1891. In answer to a summons served upon him on 21st January, as a proprietor of heritage in Scotland, the seller pleaded no jurisdiction and forum non conveniens.
Held that these pleas fell to be repelled.
Messrs Peter Dowie & Company, merchants, Leith, brought an action in the Court of Session against Robert Gray Tennant, commission merchant, Chicago, United States of America, as being the owner of heritage in Scotland, for payment of £150 alleged to be due by him in respect of certain transactions in lard carried through in the Chicago produce exchange.
The summons was served upon 21st January 1891, and on the same day inhibition was used against the defender.
The defender pleaded—(1) No jurisdiction. (3) Forum non conveniens.
It appeared that the defender, although a Scotsman by birth, had become a domiciled American. Upon 19th December 1889 he became entitled, as heir-at-law to his mother, to certain heritable property in Leith. To this property he made up a title by service in October 1890, and at once proceeded to try and sell it.
Upon 19th November 1890 Captain John Parker, Leith, wrote to Messrs Dowie & Scott, S.S.C., Leith, agents for the defender, as follows:—“Dear Sirs,—I hereby offer you the sum of Five hundred and fifty pounds stg. for the house 191 Ferry Road, Leith, lately occupied by Mr W. G. Tennant; entry at once. This offer to remain open for acceptance for fourteen days.—I am, yours truly, J. Parker. Adopted as holograph. J. Parker.” Upon 25th November 1890 the following letter was written:—“Dear Sirs,—I hereby increase the sum offered in my foregoing offer to Six hundred pounds stg., all other conditions same as in my said foregoing offer.—Yours truly, for John parker, Agnes Parker.” This letter was not holograph of Captain Parker's wife, by whom it was signed.
Page: 759↓
The following reply was sent:—
“46 Constitution Street, Leith,
“1st Decr. 1890.
“191 Ferry Road, Leith.
“Dear Sir,—As agents for and on behalf of the proprietor Mr R. G. Tennant, Chicago, we hereby accept of your offer, dated 19th and 25th ulto., to purchase this house at the price of Six hundred pounds stg.—We are, yours truly,
“ Dowie & Scott.”
A disposition of the property in favour of Captain Parker was prepared by Messrs Dowie & Scott, who acted as agents for both parties, and despatched by them to Chicago, where it was duly signed by the defender upon 9th January 1891. He posted it upon 12th January addressed to Messrs Dowie & Scott, by whom it was received on 23rd January 1891, two days after the service of the summons.
The Lord Ordinary ( Kyllachy) repelled the first and third pleas for the defender.
“ Opinion.—In this case I have come to be satisfied that the plea of no jurisdiction must be repelled.
The question is whether a defender, feudally vested in heritable property in Scotland, ceases to be subject to the jurisdiction upon the execution of missives of sale not probative and not followed by rei interventus, but followed by the execution but not delivery of a disposition in favour of the purchaser?
I am not able to answer this question in the affirmative. I consider that to do so would be to affirm that if this action had been directed against the purchaser, he would have been subject to the jurisdiction of the Scotch Courts simply in respect of his purchase. Now, although the decisions have gone a considerable way in sustaining the jurisdiction, wherever there is substantial ownership of heritable estate in Scotland, no case was cited to me where such substantial ownership has been held constituted by mere purchase, not followed by actual conveyance. Certainly no case has occurred in which the Court has recognised improbative missives, not followed by rei interventus, or a delivered disposition, as operating a transfer of property for the purpose of jurisdiction.
I recognise in the case of a completed sale the force of Mr Constable's able argument, founded on the impossibility of inhibition after such completed contract of sale, and, on the other hand, on the possibility after such sale of an adjudication in implement. I quite recognise the force of that argument, and I by no means express an opinion adverse to it. All I say is that there is no decision which has as yet gone so far. But here I do not consider that the question suggested properly arises at all. This is not a case of a concluded and binding contract of sale. The missives are admittedly improbative. There was therefore locus pœnitentiœ until the disposition was executed and delivered, and there being locus pœni—tentiœ, the result of course was that neither party was bound by the documents which had passed.
It is said that the disposition having been executed by the defender and posted before the raising of the action, addressed to the joint agent of himself and the purchaser, that constituted delivery of the disposition, and amounted to divestiture. But I am unable to hold that, at all events until the deed reached the hands of the agent, it was beyond the power of the defender. He might, for example, I cannot doubt, have countermanded by telegram the completion of the transaction. That being so, the case is just where I put it as a case of an unconcluded contract of sale not binding upon the parties, and therefore not sufficient to operate in any sense a transfer of property.
I shall therefore repel the plea of no jurisdiction, and with respect to the plea of forum non conveniens, I can discover no ground of convenience which might not be urged in the great majority of cases in which actions are brought in this Court on transactions with foreigners, or in which foreigners are interested.
I shall therefore repel both pleas.”
The defender reclaimed, and argued—Assuming that the missives passing between Parker and the defender's agents had been probative, jurisdiction would not have been established against the defender. (1) By the contract to convey the right of the seller was transformed into a mere right to a price, and the substantial right to the property passed to the purchaser, and the property could not have been attached by inhibition against the seller ( Livingstone v. Macfarlane, 1842, 5 D. 1). The cases showed that the Court would not arrogate to itself jurisdiction on this ground, unless there was property attachable by inhibition against which its decree could be made effectual— Ferrie v. Woodward, 1831, 9 S. 854; M'Arthur v. M'Arthur, 1842, 4 D. 354; Fraser v. Hibbert, January 14, 1870, 8 Macph. 400; Bowman v. Wright, January 24, 1877, 4 R. 32. (2) Where there was a binding contract of sale, it was clear there would be jurisdiction against the purchaser; bare apparency had been held sufficient to found such jurisdiction ( M'Arthur v. M'Arthur, cit. supra), and jurisdiction could not be founded against both seller and purchaser of the same property. The missives in the present case were not improbative. The second offer was the only letter which was not holograph, and the acceptance expressly applied to both offers. But assuming that there was informality, it did not affect the essence of the contract—(Lord President's opinion in Walker v. Flint, Feb. 20, 1863, 1 Macph. 417, and Lord Deas' opinion in Emslie v. Duff, June 2, 1865, 3 Macph. 854). The right to take advantage of such informality was, like a right of election, personal to the party to the contract, and it was not a right which a single creditor could exercise. The defender's case did not rest solely on the passing of the missives; by the despatch of a completed disposition the defender had done all in his power to divest himself of the property, and independently of constructive delivery he should
Page: 760↓
At advising—
I think therefore we should adhere to the Lord Ordinary's interlocutor.
The Court adhered.
Counsel for Pursuers and Respondents— H. Johnston— Sym. Agent— John Latta, S.S.C.
Counsel for Defender and Reclaimer— Constable. Agent— Andrew Wallace, Solicitor.