It is a rule of the law of Scotland, that the mind and intention of the grantor at the time of making a deed are principally to be considered. The disposition in question was merely gratuitous, and for no antecedent onerous cause.
IN THE HOUSE OF LORDS
Rose Muirhead, the Widow of James Muirhead the younger of Bradisholm, deceased VS James Muirhead of Bradisholm
(1709) Robertson 4
APPEAL FROM SCOTLAND-Case 2.
Rose Muirhead, the Widow of James Muirhead the younger, of Bradisholm, deceased, Appellant
v.
James Muirhead of Bradisholm, Respondent
DATE: 14th March 1708–9.
Subject: Donatio non presumitur.
Fountain hall, 26 July 1706, 12 July 1707.
A disposition by a father to his son, (followed by a sasine, which was not registered) made to preserve the estate from penalties of a test act, might be warrantably cancelled.
Subject-Qualified oath.—
An oath received, though objected to as containing qualities.
The late James Muirhead, the respondent’s eldest son, in 1697 married the appellant an Englishwoman at London; and the parties in the present appeal severally allege, that deceit was used with respect to the fortunes of the husband and wife on that occasion. In September 1700, three years after the marriage, articles of agreement were entered into in the English form, whereby the husband covenanted to settle lands in Scotland of the annual value of 250 l. for his wife’s jointure; or to leave her at his death 2000 l. personal estate, and 2000 l. more to the issue of the marriage. He afterwards brought his wife to Scotland, where they both for some time resided with the respondent.
But misunderstandings arising in the family, the son brought an action before the Court of Session against the respondent his father for exhibition of a disposition of the lands of Bradisholm, which had been executed by the father in favour of the son, and of a sasine taken thereon; and for declaring the son’s right to the estate in consequence of these titles. Soon after the commencement of this action James Muirhead the younger died, leaving issue of the said marriage a daughter, and the appellant his widow pregnant with a son, who died in a short while after his birth.
About six months before the husband died, he executed a holograph deed in the appellant’s favour, and thereby “surrogated, substituted, and appointed the appellant, and gave to her his full right to all and every thing he had or could have had if living, as fully and amply in all manner of respects as if every thing were there Set down at large; and he appointed the appellant his sole executrix.
After her husband’s death, the appellant re-commenced the action of exhibition and declarator against the respondent, to compel him to produce and deliver uncancelled the respondent’s marriage settlement, whereby (the appellant contended) her husband was to succeed his father in his estate; and also the said disposition and sasine, which (she stated) were made in implement of such marriage settlement: and also to give the appellant relief in the declarator. The respondent made objections to the title of the appellant to carry on the action, as founded on the deed executed by her deceased husband, which being a testament, if it could be supposed to extend to lands, the devise was void by the law of Scotland. The court allowed the process of exhibition at the appellant’s instance to proceed, reserving to the respondent all objections against her title after production.
The respondent was afterwards examined upon oath in the exhibition; and made a deposition to the following purport:
1685. c. 13.
“That in 1684, the time of the Test, he was in prison for not complying with the temper of that time, and understood that the government was to press the Test on all heritors, and accordingly by an act of parliament in 1685, the same passed into a law:—“that he remained prisoner till 1686, and having taken the advice of lawyers how to preserve his fortune, upon their advice he granted a disposition in favour of his son, a child then 12 years old, both fee and liferent, but burdened with the payment of 60,000 l. Scots, as the deponent should dispose thereof: that he did this, knowing that Lieutenant-General Drummond was his near relation, and upon sight of such a paper, or being informed of it by the deponent’s wife, he could make use of it to protect the deponent from the threatened hazard; and accordingly he did sign that disposition, containing many other conditions and qualities in the deponent’s favour, and delivered it to his wife, with a liberty to her to take infeftment upon it or not as she thought fit;—and, that thereafter while he was in prison there was a sasine brought or sent to him by Arthur Nasmith, who signed as notary to the same, and Nasmith, by letter, desired him to send it back to him: but the deponent, before he came out of prison, did cancel both the sasine and disposition, upon the information that the king was not to press the test with that severity: that Nasmith wrote to the deponent to send it back to him, in respect that it either was not insert in his book, or that he was to insert it: that there was no registration or mark of registration on the sasine; and as he gave it to his wife, so she re-delivered it to him, and when she redelivered it, the told him, that the disposition had never been out of her hand, which made the deponent believe there never was sasine taken upon it, but that the sasine sent was but a sham: but being interrogated if he did not believe it was a real sasine, deponed that he believed it was: and deponed that he had not had it in his custody, and knew not where the said disposition was, but acknowledged that he had the said cancelled disposition and sasine, and said that he laid them among useless and cancelled papers, but that he had not seen them since the intenting of any process between him and his son, and having occasion to look through these papers on another account, he had not found either of them, and acknowledged he did not make a search especially on account of the said disposition and sasine, because his wife told him they were burnt or destroyed: and being interrogated if or not he had seen the said cancelled disposition or sasine after the time that differences began to arise between his son and him, deponed that he believed he did see them among cancelled papers, but knew nothing of them then, farther than that his wife told him they were destroyed.—And being interrogated if or not he had the contract betwixt himself and his lady, deponed that he had, and it should be produced with the infeftment thereon; but he did not know of any former tailzie made by his predecessors.”
The appellant, after this deposition was made, protested against all the qualities contained in the same, in regard there were no qualities contained in the act which directed such examination to be made.
She also petitioned the Court, that the respondent might be compelled to search for the disposition and sasine, and if found, to exhibit the same in such state, as they then were.—The respondent accordingly was re-examined, and deponed that after search he could not find the disposition and sasine.
After advising these depositions, the Court, on the 26th of July 1706, “Found that the defender cancelled the disposition and seisin warrantably, and that the oath proved not, and assoilzied the defender from the exhibition, and declared him to be free therefrom.”
The appellant presented two reclaiming petitions to the Court, which were severally “refused, and the former interlocutor adhered to,” on the 30th of July 1706, and 11th of July 1707. All these interlocutors were carried in favour of the respondent, by a majority of one vote each time.
Entered, 16 Dec. 1708.
The appeal was brought from “a sentence or decree of the Lords of Council and Session made on the behalf of James Muirhead, the 11th July 1707.”
Heads of the Appellant’s Argument.
The disposition and settlement was by the infeftment taken, and instrument of sasine following thereon, effectually executed according to the law of Scotland. It contained no power of revocation; and the respondent could not lawfully cancel or destroy it.
The appellant brought her husband a considerable fortune, in consideration of which he contracted for certain provisions to be settled upon her.
The respondent’s oath proves the execution of the disposition and the infeftment taken thereon. What the respondent stated in his oath of his intention in executing the deed, was an extrinsic quality of the oath, and ought not to weigh in this matter. Such motive or covered intention was merely præpositum in mente retentum, quod nihil operatur.
Heads of the Respondent’s Argument.
It is a rule of the law of Scotland, that the mind and intention of the grantor at the time of making a deed are principally to be considered. The disposition in question was merely gratuitous, and for no antecedent onerous cause. All the circumstances of the case shew that the respondent made the disposition only to secure his family and protect his estate from forfeiture, and that he never intended to divest himself absolutely. Many similar conveyances were made by gentlemen in Scotland about the same time, and for the same purposes.
This matter having been referred to the respondent’s oath, the oath must be taken entire, and with all its qualities. There is no proof of the existence of the deed, but in this oath.
Judgment
14 March 1708–9.
After hearing counsel, It is ordered and adjudged that the said petition and appeal be dismissed this House, and that the sentence or decree therein complained of be affirmed.
Counsel: For Appellant, T. Powis. Spencer Cowper.
For Respondent, John Pratt. P. King.
1709
