Scottish Court of Session Decisions

This is an action to have it declared that a deed executed by the late Andrew Robertson, some-time residing in Pitt Street, Portobello, in 1856, by which he conveyed certain house property there in favour of his illegitimate daughter, the pursuer, in liferent, and her children in fee, was a valid conveyance. The deed had not been delivered, and was found at Robertson's death in his repositories, He also left a testamentary writing, leaving his property to trustees, which contains inter alia a declaration holograph of him in the following terms:—“1856. Elisbeth Robertson or Anderson has got No. 5th house in James Street, in Portobello, with charter;” which the pursuer says refers to the conveyance of 1866 in favour of herself and children. The pursuer maintains that Robertson the granter of the deed held it for her behoof and that of her children, and she makes the following averments:—

“On or about 4th March 1854, the said Andrew Robertson executed a mortis causa disposition, whereby he conveyed the piece of ground described in the summons to the pursuer, Mrs Anderson, in liferent, and her children in fee. After the execution of this deed, the said Andrew Robertson resolved to give the pursuers an immediate right to the said subjects, and gave the necessary instructions to his agents, Messrs Mackenzie & Baillie, Writers to the Signet in Edinburgh, for having this done. Accordingly, in terms of these instructions, Messrs Mackenzie & Baillie prepared a disposition of the said subjects in favour of the pursuers, which was executed by the said Andrew Robertson on 16th February 1856.

“The fact that he had executed the said disposition was communicated to the pursuer, Mrs Anderson, and a list of the fixtures in the house was handed to her by the said Andrew Robertson, who, at that time and frequently afterwards, told her that the property belonged to her, and that nobody could de rive her thereof. The disposition was held by the deceased Andrew Robertson from the execution thereof until the time of his death on behalf of the pursuers, Mrs Anderson and her said children, and was acted on, both by him and Mrs Anderson and her family, as giving them right to the said subjects. Mrs Anderson exercised various acts of possession and ownership, and was regarded and recognised after the execution of the said disposition as proprietor of the said subjects, and the same were dealt with as her property, as after mentioned.

She then goes to say that from the term of entry specified in the disposition the subjects were let by the deceased in the pursuer's name, and that her name was entered in the books of the superior as proprietor, and that after 1859 her name was entered in the books of the assessor of the burgh as proprietor at the request of Robertson, who also insured the premises against fire in her name.

The Lord Ordinary (Jerviswoode) allowed a proof, and afterwards gave effect to a plea maintained for the defenders the heir-at-law and trustees of the deceased, to the effect that the deed was invalid by reason of its non-delivery.

Pattison and Strachan for them.

Gifford and Scott in answer.

At advising,