Scottish Court of Session Decisions

In 1830, John Braidwood, builder in Uddingstone, at an advanced period of life, executed a general disposition of his whole heritable and moveable estate in favour of his son, Thomas, baker in Uddingstone, who became bound to pay his father's debts, and an annuity to him and his mother, with certain provisions to his sisters. The son took infeftment in the heritage, and entered into possession of the moveables conveyed.

In 1833 the father executed a revocation, and raised a reduction of the deed, libelling the following reasons:—“2do, The foresaid disposition, purporting to be, or at least being in effect, a deed of the nature of a settlement, mortis causa, granted without any other inducement, or at least without any just and adequate consideration, and for the purpose of settling the succession to the pursuer's whole means and estate, heritable and moveable, was in its own nature revocable, and has been revoked, recalled and annulled by the pursuer, conform to deed of revocation (herewith produced and referred to), executed by him on the 29th day of May, and recorded in the general register of renunciations, &c. the 1st day of June, both in the year 1833: Tertio, The said disposition was elicited and impetrated by the defender through fraud and circumvention, and by gross misrepresentations on his part, of its nature and objects, the uses to which it would be put, and the advantages thereby to be derived by the pursuer, and through ignorance and facility on the part of the pursuer, without any onerous, or just, or adequate cause, and to the pursuer's great hurt and enorm lesion.”

The defender denied all the allegations on which the third reason of reduction was rested; and, as to the second, pleaded that the deed was mutual and irrevocable. A record was made up, after which a question arose whether the cause ought forthwith to be sent to a jury, or whether the plea as to the revocable nature of the deed should be in the first place disposed of. The pursuer contended that it ought, because if, on the one hand, the deed was decided to be revocable, it stood revoked, and there could be no occasion to enquire into the disputed allegations of fraud and lesion; but if, on the other hand, the deed was irrevocable, this, being a question of pure law, ought to be fixed before the jury trial. This quality of the deed would then be laid before the jury as a fact, and as an important element, in the case of fraud and lesion which they would have to try.

The defender contended that it was the constant practice of the Court to avoid the discussion of any nice and hypothetical points of law; that if, in point of fact, the deed was affected by fraud and lesion, the question of law, whether or not it was sua natura revocable, was purely hypothetical, the deed being reducible independently of it; and that, as the judge at the jury trial could direct the jury whether the deed was revocable or not, there was no good reason for deviating from the ordinary course, or delaying to send the whole cause before a jury.

The Lord Ordinary reported the question.