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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Dame Margaret Houston, Widow of Sir John Houston, Bart., Assignee and Executrix of Dame Helenor Schaw, the Mother of the and v. Sir John Schaw, Bart. [1726] UKHL Robertson_561 (20 April 1726) URL: http://www.bailii.org/uk/cases/UKHL/1726/Robertson_561.html Cite as: [1726] UKHL Robertson_561 |
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Page: 561↓
(1726) Robertson 561
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 128.
Forbes, 5 Jan. 22 June 1709. 19 July. 1711.
Subject_Proving the Tenor. — Presumption. — Mutual Obligation. —
In an action by a mother against a son for proving the tenor of a deed executed by her during her husband's life, it is found that the pursuer's having the disposition cancelled in her hands, and never ratifying the same judicially, presumed that it was cancelled by herself.
This cancelling dissolved the obligations of a bond, granted by her husband in consideration of said disposition.
In regard the pursuer's counsel did not deny that the cancelled deed was in her hands, and refused to give their oaths of calumny thereon, the defender is assoilzied.
Subject_Costs and Expences. —
These interlocutors pronounced in 1711, are appealed from after the death of the pursuer, by her daughter and executrix, but are affirmed with 50 l. costs.
In the process between Dame Helenor, and the respondent, relative to the annuity of 8000 merks claimed by her, and the proving of the tenor of the bond, by which the same was granted to her, which are fully stated in the other appeal, between the present parties (No. 126 of this collection), the Court of Session, on the 19th of July 1711, “Found that Dame Helenor having the disposition cancelled in her hands, and never ratifying the same judicially, presumed in law, that it was cancelled by herself, and therefore that the obligements on Sir John by
Page: 562↓
The present respondent afterwards offered to refer it to his mother's counsel, whether they had not seen the cancelled deed in her custody; but they declined to depone, and the Court, on the 25th of July 1711, “In respect that in the debate, Dame Helenor's having the cancelled disposition in her custody was not refused, and that her advocates refused to appear to give their oaths of calumny, because of the appeal interposed, assoilzied the said Sir John Schaw.”
Entered, 25 Jan. 1725–6.
The appeal was brought by the appellant as executrix of her mother from “two decrees of the Lords of Session made the 19th and 25th days of July 1711.”
Heads of the Appellant's Argument.
The bond for payment of the annuity of 8000 merks, executed by Sir John Schaw the father, with consent of the respondent his son, was for a full and valuable consideration, given at the time of executing that bond, equal to the annuity, besides the settlement Dame Helenor made of her estate of Carnock and Plain in favour of the respondent, at same time, and as a part of the consideration of the annuity.
The settlement in question never was produced, so that it could not appear whether it was ratified or not, if that had been necessary: nor was any proof made or attempted to shew that it was cancelled, much less that it was cancelled by Dame Helenor. No inference ought to be drawn from her counsel's not appearing to answer upon oath: this was an unusual proceeding, and ought not to have been allowed. Their reason son not appearing was, because, after the interposing of the protest for remeid of law, the appearing at any further proceeding in that court might have been construed as a passing from the appeal. Besides, it is immaterial whether the cancelled deed was in Dame Helenor's hand or not, it might have come to her accidentally after her husband's death; or the might have recovered it from the custody of third parties, and have shewn it to her counsel, to be advised as to the import and effect of it: therefore, though her counsel had seen it in her custody cancelled, it would have been no evidence that it was cancelled by her. Dame Helenor, in the whole course of the action, absolutely denied that she had cancelled the said settlement, and therefore it was not, as the appellant conceives, consistent with the rules of justice or equity to presume that she had done so.
But supposing the said Dame Helenor had cancelled the deed (which she did not), her cancelling it would not have avoided the covenants of it, and the tenor might easily have been proved: she offered, too, to have executed a new deed to the same purport, which she afterwards actually did.
Page: 563↓
Heads of the Respondent's Argument.
Though by the accident of the old lady's living, and not marrying again, the cancelling of the conveyance came to be of no consequence; yet if she had died, or married a second time soon after her first husband's death, the consequence would have been no less than the loss of the fee of the estate of Carnock and Plain to the respondent, which, the disposition being cancelled, he then could not claim. The act, therefore, that cancelled that disposition, defeated the annuity dependant upon it; and nothing can be more unequal than to suppose in the old lady a power of defeating her own deed by cancelling it, and at same time of preserving the obligation to pay the annuity which was the consideration for making it, and renewing the same disposition at the distance of many years, when the growth of those annuities made it advantageous to claim them.
But in reality the appellant is not properly entitled to carry on this appeal; her right to do so is dependant upon the deed in 1711, which was revocable, and was in effect revoked by the deeds of 3d March 1722, the final settlement of the old lady's estate, whereby she settled her whole real and personal estate, upon a certain line of heirs of entail, and considered nothing to be her estate but the lands of Carnock and the annuity of 2500 merks. These, containing the last will and settlement of the deceased, must be considered as a revocation of the former conditional grant of the annuity of 8000 merks, made by her when she was out of humour at the decree of the Court of Session, and when she intended to prosecute an appeal, a purpose that in the remaining course of her life she never took any step to proceed with, and consequently must be presumed to have relinquished upon after thoughts.
Judgment, April 1726.
After hearing counsel, It is ordered and adjudged that the petition and appeal be dismissed, and that the decrees therein complained of be affirmed: and it is further ordered, that the appellant do pay, or cause to be paid to the respondent, the sum of 50 l. for his costs, by reason of bringing the said appeal,
Counsel: For Appellant,
P. Yorke.
Will. Hamilton.
For Respondent,
Dun. Forbes.
C. Talbot.
