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Scottish Court of Session Decisions >>
Barbara Mackie and Husband v Maxwell, &c. [1752] Mor 4963 (24 November 1752)
URL: http://www.bailii.org/scot/cases/ScotCS/1752/Mor1204963-059.html Cite as:
[1752] Mor 4963
Taking advantage of Facility, Imbecility, or Drunkenness.
Barbara Mackie and Husband v. Maxwell, &c
Date: 24 November 1752 Case No. No 59.
A disposition of land was reduced, upon the dissoluteness and profligacy of the disponer, and upon the great inequality in the bargain, tho' there was neither fraud nor circumvention.
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Jean Mackie, heiress of Maidland, being quite abandoned to drunkenness, which made her an easy prey to sharpers, and having thereby involved herself in much debt, was persuaded to divest herself of her lands in favours of her younger sister Barbara, who was the next heir, upon condition of undertaking the burden of her debts, and securing her in an yearly annuity. Barbara, reckoning that by this transaction she had paid the full value of the lands, brought a reduction against several persons, mostly innkeepers in Wigton, of dispositions they elicited from Jean Mackie of parcels of land lying about the town, before the pursuer's purchase. By the proof it came out, 1mo, That Jean Mackie was a habitual drunkard; that she sold her very clothes to purchase liquor, scarce leaving herself a rag to cover her nakedness; and that it was in any person's power, by bribing her with a few shillings, to make, her accept of a bill for any sum, or to make her dispone any part of her lands, 2do, That the dispositions challenged were granted for no adequate cause.
Upon these and other facts, the Court had no difficulty to find the reasons of reduction upon the head of fraud and circumvention, relevant and proved.
The singularity of this case is, that however well founded the reduction was, there was no ingredient of fraud or circumvention in the case. There was not the least evidence that Jean was imposed upon, or circumvened in any manner, nor was there a necessity for such indirect dealing. Five shillings to buy drink would have tempted her at any time, drunk or sober, to give a dispositon to any subject that belonged to her. And she herself being called as a witness, deponed, that she granted these dispositions voluntarily, knowing well what she did.
Therefore fraud and circumvention must be laid aside; and then where lies the ground of reduction? It is certainly unjust to take advantage of weak persons, who cannot resist certain temptations; and to make use of such temptations to rob them of their goods. Let us examine the foundation of a judicial interdiction. It is nothing but a notification to the lieges of the weakness of the person interdicted, and to caution them against dealing with that person, unless upon an equal footing. It was therefore wrong in the defenders to take advantage of the known facility of Jean Mackie, and to elicit from her dispositions for a song, at least far under the true value.
Where a weak person makes a deed, perhaps foolish, but voluntary, in favour of any person who is entirely passive, such a deed admits of a very different construction. It is not reducible, however strong the lesion may be.
Elchies observed, That, for ought he knew, the disposition in favour of the pursuer might be under the same challenge; but that, as there was no reduction of it, the Court were not called upon to take it under consideration.
