James Campbell, Esq. of Bedlay - Ada - Wilson v. Mrs Steele and J. Lang - Stephens [1826] UKHL 2_WS_334

UKHL
James Campbell, Esq. of Bedlay - Ada - Wilson v. Mrs Steele and J. Lang - Stephens
[1826] UKHL 2_WS_334
A party having, by missive, feued a piece of building ground in his own name, and thereafter alleging that he had done so on behalf of a married woman, to whom he desired the feu-charter to be granted in life-rent, excluding her husband's jus mariti, and to her children in fee; and an action having been brought by her to compel the proprietor to execute the deed accordingly, — Held (reversing the judgment of the Court of Session), that there was no evidence of the trust to affect the proprietor, and that he was not bound to execute the feu-charter so demanded.

Thomson , a mason in Airdrie, wrote to Mr Campbell of Bedlay, in these terms:—

“Molinsbarn, 26th Sept. 1818. I have agreed to feu from you ninety feet from east to west along the Cumbernauld road, by the road which leads to Logie water, and to go north 40 yards from the said front; also the road that goes to Logie water to be twenty-four feet in breadth; for which I pay for a feu of these, for which I offer one shilling and eight pence per fall for the whole, also the rights that is to follow thereon. Entry of the feu to be at Martinmas next, and to be payable half-yearly; first term payable at Whitsunday 1819.”

—Mr campbell answered:—

“Molinsburn, 26th Sept. 1818. I accept of the above offer. To Mr Andrew Thomson, mason, Airdrie.”
Soon thereafter Thomson began to build a house on the ground so feued; and obtained from Campbell advances to the extent of £30, upon security of the feu, to enable him to procure materials, for which he gave him this acknowledgment:—from you at the Molins; and which sum, it is understood, shall be declared a real lien or burden upon the property in the disposition or charter which I am to obtain from you, as my right to that piece of ground.”
“ 8th Sept. 1819. I hereby acknowledge to have, of this date, received from you £12 Sterling, which, with £18 paid by you to me some time ago, is £30 Sterling; and which sums I have got from you for the purpose of enabling me to finish the house which I am building upon the piece of ground feued by me

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On the 27th November thereafter, Campbell being a creditor of James Lang, the husband of the respondent Ann Steele, and learning that Thomson was indebted to him in a sum of money for materials furnished to the house, arrested in the hands of Thomson; Thomson, on the 1st December, addressed this letter to Campbell:—
“It having been for behoof of my aunt Ann Steele, spouse of James Lang, residing in Airdrie, and her children, and at request of my grandmother, Mrs Steele of Birkenshaw, that I feued the piece of ground from you at Molinsburn, I request that you will be so kind as execute the feu-contract thereto, in terms of our original intention, in favour of Mrs Lang, in life-rent, secluding the jus mariti, &c. of her husband to her children in fee. Mrs Lang will inform you of further particulars, and pay the necessary expenses.”
Campbell declined to grant the feu-charter to the Langs, because Thomson was the person with whom he had contracted, and that he conceived the letter introducing them as the parties interested, was the result of a collusive scheme to defeat the arrestment. An action was then raised by Ann Steele, with concurrence of James Lang, her husband, against Campbell and Thomson, stating that Thomson had entered into a missive with Campbell, whereby the latter feued to Thomson, “for behoof of the pursuer and their family, a small piece of ground in the village of Molinsburn, for the purpose of building; upon which a house had since been built, in consequence of money advanced by the pursuers, amounting to the sum of £172,19s.6d.;” that it was “distinctly understood by the parties at the time, that the feu to Thomson was in trust for behoof of the pursuers and their family;” that the pursuers had ineffectually required Campbell and Thomson, conjunctly and severally, “to execute and deliver to Mrs Steele a valid and sufficient feu-contract, or other conveyance, of the said piece of ground and house erected thereon,” and to make payment of the rents intromitted with by Thomson since the date of the missive. In evidence of the trust, they founded on the letter of Thomson addressed to Campbell, on the 1st December, and they concluded that it ought to be declared, “that the foresaid missive, entered into by the said James Campbell and Andrew Thomson, was a trust in the person of the said Andrew Thomson, for the use and behoof of the pursuer and their foresaids; and the said defenders ought to be decerned and

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The Lord Ordinary found “the trust alleged by the pursuers sufficiently established by the letter founded on in the summons and the decree already pronounced against the defender, Thomson, and not reclaimed against as to him,” and decerned accordingly, and ordered a condescendence by the pursuers, of an allegation, that the £30 had not been advanced by Campbell. Thereafter his Lordship, on advising a representation by Campbell, adhered, “in respect that the granting of a feu implies no delectus personæ; and that, therefore, the person obliging himself to grant the feu, must grant the same to any person having right thereto, either in consequence of the original trust, under which the person originally acquiring it may have acted, or in consequence of any transference he may afterwards have made, saving always any claim for money advanced, or obligation entered into by the person granting the feu to the person obtaining it upon the faith of that feu, while ignorant of either the trust or of the transference; and the interlocutor completely reserves the representer's (Campbell's) right, if he shall be enabled to establish the advance made to Thomson.”Campbell then petitioned, and the Court, on advising his petition without answers, recalled the last interlocutor of the Lord Ordinary, and remitted to him to proceed in terms of the previous one. After some proceedings, the Lord Ordinary found, that in consequence of certain counter claims, the total sum to which Campbell had right, on account of his advances to Thomson, was £6, 4s. 7d. This judgment having

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Lord President . — The trust is clearly established, and although Mr Campbell has no doubt a good claim against Thomson, yet he has none against Lang.Lord Hermand . — I am of the same opinion. Indeed, I cannot see how the pursuers can be made liable for advances made to Thomson in his private capacity; besides, they are compensated. The claim against Lang is not relevant as a defence in this question.Lord Balgray . — I concur. The interlocutor does not deprive Campbell of his claim against Lang, if it be well founded.Campbell appealed.Appellant .— The agreement to feu was with Thomson himself, and for his behoof alone, and the appellant is ready to fulfil it, by granting him a charter, on receiving payment of the balance due him, and the arrested sum. The appellant never came under any obligation towards the Langs, and certainly is not bound to execute the feu-right they call for. He is entitled to all the casualties of superiority, of which he cannot be disappointed, by the shape in which the respondents insist that the charter shall be given. In one sense of the word, there may be no delectus personae in feuing, where a vassal has it in his power to convey and transfer his interest in the feu to whom he chooses; but still, so far as regards choosing the first vassal, the superior may exercise a delectus personae; and in this instance the appellant would not have feued to Lang.

Footnote

* See 3 Shaw and Dunlop, No. 41.

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Respondent . — There is ample evidence that the feu-right in question was taken in trust by Thomson. In feus there is no delectus personæ. The only patrimonial interest the appellant had to protect, was the debt due to him by Thomson; but the balance due has been offered to him. As the original feu-right was taken in Thomson's name, the appellant cannot pretend that he relied on the security of that right, for payment of any debt due by Lang.The House of Lords ordered and adjudged, “that the said interlocutors complained of in the said appeal be, and the same are hereby reversed, and that the said James Campbell be assoilzied from the conclusions of the libel.”Lord Gifford . — There is a case which has been heard before your Lordships, in which James Campbell, Esq. was the appellant, and Mrs Ann Steele, spouse of James Lang, residing in Airdrie, and he for his interest, were the respondents. This was an appeal against the several interlocutors of the Court of Session, pronounced in an action commenced by Mrs Steele and her husband against James Campbell, Esq. of Bedlay, and Andrew Thomson, mason in Airdrie, for the purpose of compelling Mr Campbell to execute a feu-disposition of certain property which had been contracted to be feued by Mr Campbell to a person of the name of Thomson. It appears that in the year 1818, Mr Thomson, who was a mason in Airdrie, applied to Mr Campbell for a feu-right to a piece of ground, situated in the village of Molinsburn, upon which Thomson stated himself to be desirous of erecting a dwelling-house. The appellant states, that being well pleased that Thomson should settle in the village, he readily acceded to this proposal. Accordingly, an offer was made by Mr Thomson by a letter, written by him to Mr Campbell, bearing date the 26th September 1818. — (His Lordship here read the letter.) — That letter was signed by Mr Thomson, and the offer was accepted by Mr Campbell.Your Lordships perceive, that by these letters there was a contract entered into by Mr Campbell, to feu to Mr Thomson this piece of ground situated in the village of Molinsburn. Thomson accordingly, as is stated, and not denied, entered upon this land, and commenced the building of a house. On the 8th of September 1819, a letter was written by Mr Thomson to Mr Campbell, at least a letter of that date — whether it was sent at that or a posterior time, does not distinctly appear; nor does it

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My Lords,upon this summons defences were put in by Mr Campbell; and he stated, that he knew nothing of any pretended trust supposed to be subsisting between the pursuers and defender Thomson, and he could not be affected by collusive agreements on this subject, concerted between these parties; that he never agreed to sell or feu to the pursuers, the property libelled, or any other property; that he never dealt with Thomson, as trustee for the pursuers, to any extent whatever; and he denied in toto the right of the pursuers to call upon him to denude of the property in question, or to execute or deliver any deed in their favour.The case came before the Lord Ordinary, and he pronounced the first interlocutor which is appealed against; and, by that interlocutor, he found the trust alleged by the pursuers sufficiently established by the letter founded on in the summons, and the decree already pronounced against the defender Thomson, not reclaimed against as to him, and decerned accordingly. I should have stated to your Lordships, that no defence was made by Thomson, and therefore the Lord Ordinary referred to the decree pronounced against Thomson, as one of the grounds upon which he considered that a trust had been sufficiently established. Then he goes on, “but before farther answer, as to the claim of the defender, James Campbell, for his debt of £30, allows the pursuers to give in a condescendence, framed in terms of the act of sederunt, of the facts and circumstances they offer to prove in support of their statement, that no such sum was advanced by the said James Campbell”.Your Lordships perceive, therefore, by this interlocutor, that although the Lord Ordinary had distinctly found that this trust was sufficiently established by the letter founded upon in the summons, and the decree pronounced against Thomson, and, therefore, that the trust was a trust declared at the time of the contract, yet, at the same time, (as it appears to me, a little inconsistently,) he is of opinion, that although Thomson contracted as a trustee, and that trust had been established, Mr Campbell had a right to be paid a debt due from Thomson, the trustee. If the fact was, that Thomson had actually contracted qua trustee for those persons, and that Mr Campbell contracted with him qua trustee, it is a little difficult to see how Mr Campbell could insist on being paid the debt due from the trustee, before he executed his feu-contract to the cestui que trust. However, such was the interlocutor of the Lord Ordinary.The appellant presented a representation against this interlocutor; and then the Lord Ordinary pronounced another interlocutor, as follows: “In respect that the granting of a feu implies no delectus personæ, and that, therefore, the person obliging himself to grant the feu must grant the same to any person having right thereto, either in consequence of

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My Lords,on these interlocutors being brought under the review of the Court of Session, they recalled that interlocutor, and therefore they disaffirmed that interlocutor, proceeding upon the ground that the granting of a feu implies no delectus personæ, and remitted the case to the Lord Ordinary to proceed in terms of his previous interlocutor; that is, upon the ground that the trust had been sufficiently established, and that therefore the pursuers were entitled to call for this feu-contract under that trust.My Lords,proceedings then took place before the Lord Ordinary, with respect to the amount of the debt due from Thomson to Mr Campbell. It appeared, at last, that there was a balance only, I think, of £6, 4s. 7d. — the difference between £23,15s. 5d. and £30, due to Mr Campbell. Various proceedings took place, and Mr Campbell, I should have stated to your Lordships, contended that even if he were compelled to grant this feu-right to Mr and Mrs Lang, still Mr Lang was indebted to him — that this action was a contrivance to prevent his being enabled to recover his debt against Mr Lang — and that if he were compelled to convey this feu to Mr Lang, he, Mr Campbell, should be allowed to deduct the amount due to him. He did not, however, succeed in that; and the decision of the Court of Session was, that he was bound to convey this

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My Lords,this case is a very unfortunate one. The value of this property is, I believe, not very large, and therefore it is a matter of more anxious consideration with me than it would otherwise be; but after the most attentive consideration of this question, I am unable to coincide with the finding of the Lord Ordinary; and I will state to your Lordships why.That the original contract was made with Mr Thomson, without any reference to any trust, is perfectly clear from the letter. That letter bore date in the month of September 1818. Things remained in that situation till the month of December 1819, Mr Thomson having gone on building this house; and, as Mr Campbell alleges, he during all that time being in perfect ignorance of this trust; and no evidence whatever has been given, except this letter, in the month of December 1819, to show that he ever contracted with Mr Thomson qua trustee. Now, my Lords, that letter is dated fifteen months after the original contract. In that letter certainly Mr Thomson states, that at the time of the original contract, it was made for the behoof of his aunt, and requests that Mr Campbell will be so kind as execute the feu-contract thereto, in terms of the original intention. It is true, Mr Thomson has suffered judgment in this case to pass against him. As between him and the Langs, to be sure, he has admitted that this contract was made by him for their behoof; but the ground of this action, and this summons, is, that not only was the contract so entered into by him for the benefit of Mrs Lang and her children, but that that contract was so made by Mr Campbell, and that Mr Campbell knew that that was the nature of the trust existing at that time. Now, my Lords, I must confess that on looking through these proceedings, I do not see that there is any evidence to bear out the respondents in that allegation.Upon the other ground, if it were necessary to go through it, I think a great deal of observation might be made. I mean, supposing there was no trust originally, whether it would be competent for Mr and Mrs Lang to compel the performance of this contract by Mr Campbell; particularly, to compel him to grant this feu-right to Mrs Steele and her children, secluding the jus mariti of the husband. But it is unnecessary to consider that point, because the Court of Session have not considered it. The whole ground of this decision is, that it has been established by sufficient evidence, that there was this trust at the time when the contract was entered into, between Mr Campbell and Mr Thomson; and, of course, if so, that that was known to Mr Campbell; because, if it were not, it appears to me extremely difficult, indeed impossible, to support this action. The summons proceeds directly on the allegation, not only that there was this trust, but that the contract was entered into by Mr Thomson and Mr Campbell, with the knowledge of that trust. Upon that there is really no evidence, except this letter, written fifteen months after the transaction; and although, as I have stated to your Lordships, that the other letter, written by Thomson on the 8th of

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My Lords,taking into consideration all these facts, however unfortunate the circumstances of this case may be for the respondents, it appears to me, that, consistently with the facts proved in this case, the form of the action, and the ground of the action stated in the summons, it is impossible that your Lordships can sustain these interlocutors. It will be my duty, therefore, to move your Lordships, that these interlocutors be reversed, and that Mr Campbell be assoilzied from this action.Solicitors: Fraser, A. Dobie,, Solicitors .