Hector F. M'Neill - Warre - Abercromby v. Walter Moir and Others, Trustees of the late Dr M'Neill - Kea - Brougham [1824] UKHL 2_Shaw_206

UKHL

Hector F. M'Neill - Warre - Abercromby v. Walter Moir and Others, Trustees of the late Dr M'Neill - Kea - Brougham

[1824] UKHL 2_Shaw_206 · 1811-12-24

nearly 80 years of age, whereby he discharged a debt of L. 3000, heritably secured, for a bill of L. 230, and an annuity of 7 ½, per cent during his life, for payment of which no security was granted.

Circumstances under which (affirming the judgment of the Court of Session) a deed was set aside, which had been obtained from a facile person,

Page: 207 ↓

In 1787, Dr M'Neill lent L.1000 to Daniel M'Neill of Gallochilly, (the father of the appellant), for which an heritable bond was granted, on which Dr M'Neill was infeft; and besides this sum, there was also due to Dr M'Neill a debt of L.600, with interest.

On the death of his father and an elder brother, the appellant, Hector Frederick M'Neill, succeeded to the estate, subject to these, burdens; and it appeared, from a state of debt made up in February 1806, that the sum due to Dr M'Neill then amounted to L. 2516. This sum, it was alleged, Dr M'Neill at the same time restricted to L.2136, by a holograph writing, but it was not signed by him. The only payment which was subsequently made by the appellant was L. 100. In December 1811 he came to Edinburgh, where Dr M'Neill then was, and had a meeting with him on the subject of the debt. At this time, Dr M'Neill was nearly 80 years old, and the infirmities of age had been considerably increased by a habit of indulging in spirituous liquors. His affairs were managed by Mr Jaffrey, writer to the signet, and he was in the habit of consulting Mr Walter Moir, accountant, and David Bridges, merchant in Edinburgh. The above meeting took place on the 24th of December, at the Turff Coffee-house, where the appellant resided, and no other person was present except the parties themselves. A missive of agreement, in the form of a letter, addressed by Dr M'Neill to the appellant, was then drawn out by the latter, which was expressed in these terms:—

“Edinburgh, 24th December 1811. Sir , — As you have this day given me your bill for L.230 sterling, I bind myself to give you credit for the same in my account; and I farther bind and oblige myself, in consequence of this payment from you, to free you from all bonds and other claims that I may have against you, on condition that you grant me your bond of annuity, during my life, for a sum equal to the interest of the balance you owe me, after deducting this L. 230, at the rate of seven and a half per cent. (Signed) James M'Neill . (Agreed) Hector F. M'Neill .”

Subjoined to this, Dr M'Neill added the words:—

“To be adjusted with Mr Walter Moir's approbation.”

On the following day, being the 25th, another meeting took place at the Turff Coffee-house, on which occasion a Mr Galbraith

Page: 208 ↓

“Edinburgh, 25th December 1811. Sir , — As you have this day given me your bill for L.230 Sterling, I bind myself to give you credit for the same in my account; and I farther bind and oblige myself, in consequence of this payment from you, to free you from all bonds and other claims that I may have against you, on condition that you grant me your bond of annuity, during my life, for a sum equal to the balance you owe me, after deducting this L.230, at the rate of seven per cent. In witness whereof, I have subscribed these presents, (written by David Stewart Galbraith, factor upon the estate of Largie), at Edinburgh, the 25th day of December 1811 years, before these witnesses, the said David Stewart Galbraith, and Alexander M'Donald, waiter in the Turff Coffee-house, Edinburgh. (Signed) James M'Neill . D. Stewart Galbraith, witness; Alexander M'Donald, witness.

To Hector F. M'Neill, Esq. of Gallochilly.”

At this time the debt due to Dr M'Neill amounted to nearly L. 3000, and no duplicate of the missive was given to him. At these meetings it was alleged by the respondents, that gin had been brought in and given to Dr M'Neill. On the same day he called on Mr Moir, and mentioned the circumstance of the missive to him, and that gentleman, in a letter which he wrote to Mr Kennedy, (who was the regular law agent of the appellant), in relation to a state of the debt which he wished to see, stated, — “That the Doctor has been just mentioning to me something of an arrangement to be gone into by Gallochilly and him, the meaning or effect of which he does not seem to have any idea of. He wished me to assist him in this arrangement with Gallochilly; but so far as I can comprehend it, it appears to me to be of such a nature, that I felt it my duty to inform him, that I declined having any thing to do with it. I am,” &c.

And on the following day, in answer to a similar request by the appellant, Mr Moir wrote to him, that “you misunderstood one another very much, I suspect, as to the terms of your proposed settlement.”

On the 27th, Mr Moir again wrote to the appellant, in reference to a meeting which had taken place at his house, that “at a meeting of some of the Doctor's friends to-day, relative to the state of matters betwixt him and you, he insisted positively, as he did in your own presence at my house, that it never was his intention to sink the balance of (he debt, as stated in

Page: 209 ↓

In answer to this letter, the appellant stated, that he was perfectly aware that a great advantage had been conferred upon him; but that it was the intention of the Doctor to do so, and that he had expressly said so on the occasion alluded to in Mr Moir's letter. This letter from the appellant, it was said, had never been received; and as he was about to leave town, Messrs Moir and Bridges, acting on behalf of Dr M'Neill, executed a protest against the appellant, in which they stated, that it was never the intention of Dr M'Neill to enter into a transaction, whereby to discharge a debt of L. 3000 upon the terms contained in the missive, but that, on the contrary, he had been purchasing a perpetual annuity.

The appellant having afterwards brought an action for implement, Dr M'Neill assigned the debt in trust to the respondents, Messrs Moir and Bridges, who raised an action of reduction, on the ground that the “said missive was obtained from the said Dr James M'Neill by the defender, through extreme facility on the part of the granter, on an understanding of the transaction by him totally different from that which is pretended to be borne out by the words of the said missive, without any onerous or just cause, and to the granter's great hurt and prejudice, and enormous lesion.” The Lord Ordinary, after conjoining the two processes, pronounced this interlocutor:—

defender, on condition of his granting him a bond of annuity during his life for a sum equal to 7 ½ per cent of the balance: Finds, That Dr M'Neill having, on the very day on which the missive was written, communicated the scroll thereof, as delivered to him by the defender, to Walter Moir, accountant, now acting as one of his trustees, that gentleman, upon the same day, wrote to Gallochilly's agent, that “the Doctor had been just mentioning to me something of an arrangement to be gone into by Gallochilly and him, the meaning or effect of which he does not seem to have any idea of;” and that this letter was followed by a protest upon the 28th December 1811, on the part of the present pursuers, as trustees for Dr M'Neill, against the defender and his agent, demanding delivery of the agreement as having been totally misunderstood by Dr M'Neill, and offering back the promissory-note for L.230 sterling: Finds, That there was no person present upon the part of Dr M'Neill at the time this agreement was entered into, although there was a man of business present on the part of the defender, and who is the writer of the missive in question, which is a probative document, in terms of the Act 1681: Finds, That the defender kept this missive of agreement, and gave Dr M'Neill a scroll not probative, whereby the defender had it in his power, by destroying the probative document in his possession, to put an end to all legal evidence of its existence; whereas Dr M'Neill had no document whatever from which the agreement could have been legally authenticated: Finds, That the accounts were not adjusted, nor was the amount of the balance due by the defender to Dr M'Neill ascertained at the time this missive was entered into: Finds, That the agreement affords no presumption of any intention upon the part of Dr M'Neill to abate any part of his claim, nor to pass from any part of it as doubtful; but, on the contrary, to convert the whole balance of principal, of whatever remained after the payment of L.230, into an annuity at the rate of 7 ½ per cent, which it is said the Doctor understood to be a perpetual annuity; whereas the missive in question bears, that it was only an annuity during his life: Finds, That an annuity at the rate of 7 ½ per cent to a man of so great an age as Dr M'Neill, was a most unequal and unfair transaction, as the life of Dr M'Neill, at his age, was not insurable; and 2 ½ per cent above the ordinary interest afforded no compensation for the sinking of the principal for such an annuity during the Doctor's life: Finds, That a large part of the debt due by the defender to Dr M'Neill was secured by heritable bond and infeftment; whereas this agreement for sinking the balance into an annuity does not even stipulate heritable security for the payment of that annuity in lieu of the heritable debt which was to be thereby extinguished; and therefore, in the whole circumstances of the case, reduces, decerns, and declares, in terms of the libel: And in the action Hector Frederick M'Neill against Dr M'Neill for implement of the said agreement, assoilzies him from the conclusions of that action; and in both actions finds the said Hector Frederick M'Neill liable in expenses, of which allows an account to be given in, and decerns.”

“In the said process of reduction, finds it asserted upon the part of the pursuers, that Dr M'Neill is about 80 years of age, although, from his having been born in a part of Ireland where no register of baptisms had been kept, his precise age is not exactly known; and finds it not denied by the defender, that Dr M'Neill is a man far advanced in years: Finds, That the missive under reduction, dated 25th December 1811, contains an agreement to the effect, that, as the defender had that day given the Doctor his bill for L.230 sterling, payable three months after date, which was to be deducted from the account due by the defender to Dr M'Neill, he thereby agreed to free the defender from all bonds and other claims that he had against the

Page: 210 ↓

Page: 211 ↓

To this judgment the Court adhered on the 4th of July 1816. *

In the meanwhile Dr M'Neill had died, leaving a deed of settlement in favour of his natural daughter, Mrs Mary Black M'Neill, spouse of Robert Jolly, of which a reduction had been brought by his heir-at-law, on the ground of fraud and facility. Issues were sent to a jury, who negatived the allegations of fraud, but found that Dr M'Neill was facile. This, however, not being sufficient of itself to set aside the deed, the Court sustained it, and Mrs Jolly and her husband thereupon became parties to this cause. At the distance of nearly five years after the last judgment, the appellant brought an appeal against the interlocutors setting aside the missive and refusing to give implement to the transaction, on the ground, —

1. That as the missive was ex facie a regular and valid deed, executed by a party sui juris, and who had homologated the same by receiving the appellant's bill for L.230, it was binding and effectual against him; and as there was no evidence either to prove facility, or to shew that the consent by Dr M'Neill had been obtained otherwise than lawfully, the judgments complained of were erroneous. And,

2. That as the terms of the agreement were quite explicit, it was impossible to allege that the Doctor had misunderstood the transaction; and it was not relevant to state that there had been inequality. To this it was answered, —

1. That at though facility of itself was not sufficient to set aside a deed, yet if it were combined with any other circumstance indicative of an undue advantage having been taken of the facile person, the deed was ineffectual: that, in the present case, Dr M'Neill was nearly 80 years of age, and it had been proved by the verdict of a jury that he was in a state of facility: that the

Footnote

* Not reported.

Page: 212 ↓

2. That at Dr M'Neill hah subjoined a qualification, that the arrangement was to be adjusted by Mr Moir, and had gone to him upon the very day on which the transaction took place, with a view to obtain his advice and as it appeared from the correspondence that he had misapprehended the nature of the transaction, there never had been any concluded agreement at all.

The House of Lords “ordered and adjudged, that the appeal be dismissed, and the interlocutors complained of affirmed, with L. 100 costs.”

Respondent's' Authorities .—4. Ersk. 1. 27.; Kames' Prin. of Equity, p. 50.; Mackie, Nov. 24. 1752, (4963.); 1. Bridgeman's Index, 58—Donald, June 12. 1821, (1. Shaw and Bal. No. 79.); Sanderson, Nov. 17. 1821, (Ib. No. 181.); Leiper, July 9. 1822, (Ib. No. 604.); Forbes, Dec. 13. 1822, (2. Shaw and Dunlop, No. 82.); E. of Roseberry, July 1. 1823, (Ib. No. 422.)

Solicitors: A. Mundell— Moncreiff and Webster, —Solicitors.