William Spence v. Alexander Ross - Lushingto - Ivory [1829] UKHL 3_WS_380

UKHL
William Spence v. Alexander Ross - Lushingto - Ivory
[1829] UKHL 3_WS_380 · 1814-10-18
A father having, by missive letter, sold a piece of land, taking the purchaser bound to grant a bond in favour of himself in liferent, for his liferent use allenarly, and of his sons nominatim in fee; and having caused his sons to sign a postscript to the missive, agreeing to allow the money to lie in the purchaser's hands for eight years certain;—Held, (affirming the judgment of the Court of Session), in a question between the father and the creditors of the sons, that although no bond had been delivered, and no disposition prepared, the fee had irrevocably vested in the sons.William Spence , the appellant, was proprietor of a piece of ground near Musselburgh. He had two sons, William and George. On the 18th October 1814 he agreed to sell the property to Sir John Hope of Pinkie, by the following missive:—titles that they are good, and to be at the mutual expense of conveying it over to you.”
“I agree to sell you the ground near Musselburgh belonging to me, and presently occupied by Government as barracks, for the price of L.2000 sterling; your entry to be Martinmas old style; from which term the price is to bear interest. The said sum of L.2000 is to be declared by the disposition a burden on the subject, and to remain in your hands at interest, on a bond granted to me in liferent, for my liferent use allenarly, and to my sons William and George, equally between them, and their heirs, in fee, the interest being payable to me during my life, and, after my death, the same to be payable to my sons, equally between them, for two years thereafter; and the principal to be paid them at the elapse of two years after my decease. You are to rest satisfied with the

Page: 381 ↓

Sir John having stated his wish that Spence's two sons should consent that the sum should lie for at least eight years certain in his hands, Spence wrote, and the sons signed, a postscript to the missive, in these terms:—
“We, William and George Spence, sons of the foresaid William Spence, proprietor of the barrack ground, hereby agree, that the above sum shall remain in Sir John Hope's hands at least for eight years certain after Martinmas first, 1814.”
Thereupon Sir John accepted the offer, on condition of his “agent being satisfied with the regularity and goodness of your titles.” A disposition in favour of Sir John was then executed by the appellant, and a bond in terms of the missive was granted by Sir John; but neither the disposition nor the bond was ever delivered. Sir John in virtue of the missive entered into possession, and thenceforth paid the interest to the appellant as it fell due.William Spence, the eldest son, died in 1819, unmarried and intestate; and his brother George having thereafter become bankrupt, a sequestration followed, and Ross was appointed trustee.Ross advertised the bond for sale, as being the property of George, subject to the liferent of the appellant. Of this the appellant brought a suspension and interdict, in which he maintained, 1 st , That as neither the disposition nor the bond had been delivered, he was not divested of the property, and therefore was entitled to the price; and, 2 d , That the transaction being in relation to the sons mortis causa and gratuitous, he was entitled to resile quoad them. To this it was answered, 1 st , That although there had been no actual delivery, yet the transaction was rei interventu so complete, that the appellant could not resile, and could be compelled by legal process to give the disposition on receiving the bond in terms of the missive; and, 2 d , That the fee was expressly vested in the sons, delivery made to them, and an act of ownership exercised by them, with the consent and full knowledge of the appellant. The Lord Ordinary repelled the reasons of suspension, with expenses; adding in a note, “The Lord Ordinary considers the communication to the sons as of the strongest kind; for it not only made them acquainted with the conveyance in favour of the father in liferent allenarly and of them in fee, but it required an actual and present exercise by them of the right vested in them under that conveyance, which exercise did take place accordingly. This seems far stronger than putting a conveyance on record.” Spence having reclaimed, the Court, after ordering a note of

Page: 382 ↓

William Spence appealed; but having died, the House of Lords, on petition, ordered (8th July 1828) that the case should stand revived in the name of his disponee, William Spence, a minor, and his curator, John Horatio Savigny.Appellant .—The original appellant was absolute fiar, and could dispose of his property as he chose. By his missive, he merely intended to supersede the necessity of a family settlement, which would have been, as far as destination was in question, revocable at pleasure. This transaction was no doubt onerous with Sir John Hope; but it was purely gratuitous as to the sons. It never was made real, but remained personal. Neither the bond nor the disposition has been delivered; and the records are silent as to both. In dubio, a father is never presumed to part with his property to his children; and here the missive merely imports the indication of an intention to transfer a real right to the sons; but which intention has not been carried into execution. The real right remained with the father. He and Sir John Hope could have departed from the bargain, and cancelled the whole transaction. The sons had merely a spes successionis. The postscript signed by them merely shews, that they were acquainted with the views their father entertained as to the distribution of his estate; but that did not alter the right inherent in the father, nor divest him of it. Besides, that missive cannot be regarded in any other light than a mortis causa deed, which is revocable if not delivered or recorded. To listen to the respondent's claim, would be visiting the father with the most grievous hardship. He never contemplated placing these lands out of his controul, or that the fruit of his industry should be carried away by his son's creditors.Respondent .—The father, by his own deliberate act, restricted his interest in the lands to a mere liferent, and conferred on his sons the character of fiars. The transaction is complete and indefeasible. The missive has been delivered to a third party to hold for the sons' behoof; and that delivery is equivalent to recording. The missive was thus put beyond the father's controul. Sir John was vested with the absolute right of

Footnote

* 5. Shaw and Dunlop, No. 9. p. 17.

Page: 383 ↓

The House of Lords ordered and adjudged, that the interlocutors complained of be affirmed.Appellant's Authorities .—3. Ersk. 8. 35. and 3. 5. 3.; Baird, Jan. 4. 1774, (7737); Hill, July 2. 1755, (11,580.); Monimusk, Feb. 21. 1628, (11,566.); Inglis, Nov. 14. 1676, (11,567.); Simpson, Nov. 16. 1697, (11,570.); Holwell, May 31. 1796, (11,583.); Somerville, May 18. 1819, (F. C.); Miller, July 11. 1826, (4. Shaw and Dunlop, 499. p. 822.) Respondent's Authorities. —Leckie, Nov. 22. 1776, (No. 1. Ap. Presump.); Turner, Jan. 23. 1783,(11,582.); Fairlie, June 11. 1630, (11,567.); Trotters, Nov. 20.

Page: 384 ↓

Solicitors: J. & A. Smith— Richardson and Connell,—Solicitors.