Scottish Court of Session Decisions

Subject_1 MEMBER of PARLIAMENT.
Subject_2 DIVISION IV.

Decisions common to qualifications upon the old extent and valuation.
Subject_3 SECT. III.

Nominal and Fictitious.

Ilay Ferrier
v.
William Morehead

Date: 22 December 1790
Case No. No 153.

Proof prout de Jure is competent of all circumstances from which the nominality and fictitious nature of a qualification may be inferred.

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Mr Ferrier claimed enrolment, as a freeholder in the county of Stirling, at the meeting for election on 6th July 1790, as liferent-superior of certain lands which were of the requisite valuation.

Mr Morehead objected to the claim, on the ground of the titles being nominal and confidential; and the freeholders having refused to enrol, Mr Ferrier complained to the Court of Session.

In addition to the questionable nature of Mr Ferrier's right, as appearing from the writings exhibited by him, Mr Morehead offered a proof prout de jure of the fact of nominality and confidence, including the parole evidence of the different persons who had been concerned in the business.

Mr Ferrier, on the other hand, contended, that the admission of oral testimony in such a case was contrary to the statute of 1696, whereby it is declared, “That no action of declarator of trust shall be sustained as to any deed of trust made for hereafter, except upon a declaration or back-bond of trust, lawfully subscribed by the person alleged to he the trustee, and against whom, or his heirs or assignees, the declarator shall be intented, or unless the same shall be referred to the oath of party simpliciter”. In support of this objection, he

Pleaded; The general rule certainly is, that solemn writings respecting landed property cannot be set aside by parole testimony. So the law stood before the enactment of 1696, which only corrected an error in the construction of trust-rights, which had acquired some footing. In a question, therefore, with the granter of the liferent right here founded on, no evidence but the oath or writing of the liferenter could be listened to; and it is not easy to figure in what manner other parties, not immediately interested, can be allowed a more extensive range. It is true, that by the enactment of 7th George II. it is in the power of the freeholders to try, by the oath of any party claiming enrolment, whether his qualification is an independent one, or held in trust for another person; but this particular interposition of the legislature serves only to strengthen the general rule.

Answered; By the statute of 1696, it was provided, in affirmance of the common law, that trust in a question between the granter and grantee should only be proved by the oath or writing of the party. But from this it does not follow, that in every case the same method of proof must be adhered to. Thus, in a question between the creditors of a bankrupt, and a person to whom he has conveyed landed property, if the conveyance be objected to as fraudulent, or designed for the benefit of the bankrupt himself, parole-testimony is admitted. In this case, however, the objection being not merely that the right is confidential, but that it is nominal, intended to convey to the grantee the shadow only, and not the substance of a right, the regulation of the act 1696 is as inapplicable as it would be where an objection of forgery is made.

After hearing counsel, the Court had no difficulty in allowing the proof here offered.

Act. Solicitor-General, Ross, et alii. Alt. Dean of Faculty, Wight, et alii. Clerk, Home. Fol. Dic. v. 3. p. 420. Fac. Col. No 60. p. 321.

Nota. The same decision was given at the same time in a similar case, Morehead contra Cheap. See Appendix.