Arthur J. Robertson, Esq., of Inches v. Richard Pattinson, Esq., and Mandatory [1846] UKHL 5_Bell_259

UKHL

Arthur J. Robertson, Esq., of Inches v. Richard Pattinson, Esq., and Mandatory

[1846] UKHL 5_Bell_259

Where a purchaser of property under a deed of sale and conveyance, averred in general terms, that an understanding or agreement had existed, which created a variation in regard to the price of the purchase, from the terms contained in the deed, and asked a diligence for recovery of all possible documents, to prove this understanding or agreement, held , that the Court exercised a sound discretion, in requiring the party to describe, by date or otherwise, any document he averred to exist in support of his averment, and in refusing the diligence when he failed to do so.

Subject_ Sale. —

Where a purchase, generally without specification, of an heir's whole interest in the estate real and personal of a testator, was made and carried out by a deed reciting that the accounts and particulars of the estate had been examined by the purchaser, it was held , that no inquiry could be gone into, in regard to portions of the real estate having been previously sold by trustees in the management of the estate, for the general purposes of such management, whereby the land was reduced as alleged, below what the purchaser had expected, the purchase not having been of any ascertained quantity.

The respondent was the son of Richard Pattinson, deceased, by a second marriage the only issue of which were the respondent and one sister. The appellant was the husband of the deceased's only child by his first marriage. The deceased was possessed of considerable personal property, and of real estate in the two provinces of Canada. At his death he left a will, giving the respondent the option of taking his whole estate under burden of a provision for his two daughters, or of dividing it equally with them. The respondent, who was a minor at the

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In the course of the two years, after a little more was known by the parties of the value of the estate, instead of the respondent exercising the power of redemption, a new arrangement was entered into, by which the appellant agreed to pay him 8000 l . as the price of his share: this was reduced to writing by a deed, dated 20th April, 1832, duly executed, which, after reciting the will of the deceased, and the devise thereby to trustees, continued thus:—

Pattinson in hand, well and truly paid by the said Arthur John Robertson, at or immediately before the sealing and delivery of these presents,—the receipt whereof the said Pattinson doth hereby acknowledge; he, the said Richard Pattinson, hath granted, bargained, sold, assigned, transferred, and set over, and by these presents doth, without hurt or prejudice to the foresaid indenture or deed of conveyance, assignment, and transfer, but in corroboration and confirmation thereof, of new grant, bargain, sell, assign, transfer, and set over unto the said Arthur John Robertson, his heirs, executors, administrators, and assigns, all and singular the estate, both real and personal, wheresoever situated, goods, chattels, and effects, which pertained to the said Richard Pattinson his father, so far as he has right thereto by virtue of the said will or otherwise, as the heir-at-law, and one of the nearest of kin of his said father, and all interest, benefit, and advantage which he has, or can claim, in and from the estate and succession of his said father in any manner of way howsoever, together with the rents, income, and profits of the said estate, so far as he has right thereto: to have and to hold the said real estate, with its appurtenances, and the rents, profits, and produce thereof, unto the said Arthur John Robertson, and his heirs and assigns for ever: and the said personal estate, with the profits and produce thereof, unto him, his executors, administrators, and assigns, for ever, to the only proper use and behoof of him, the said Arthur John Robertson, and his heirs, executors, and administrators and assigns for ever; and the said Richard Pattinson, for himself, his heirs, executors, and administrators, doth covenant, promise, grant, and agree, to and with the said Arthur John Robertson, his heirs, executors, administrators and assigns, that he, the said Richard Pattinson, hath not, at any time or times heretofore, done, committed, or suffered any act, deed, matter, or thing howsoever, whereby, or by means whereof, the aforesaid estate, real or personal, is or shall be impeached, charged, or incumbered, in any way howsoever.”

“And whereas the said trustees lately rendered to the parties interested in the said estate, full accounts of their intromissions therewith, together with schedules and estimates thereof: and whereas the said Richard Pattinson having, after a full examination of the said accounts, schedules, and estimates, come to the determination of declining to take under the said will, on the conditions therein expressed, the testator's said estate falls to be equally divided among his said children in terms of the said will: and whereas it appears from the said estimates, that the value of the share of the said estate falling to the said Richard Pattinson considerably exceeds the said sum of 5000 l .; and the said Arthur John Robertson has therefore agreed to allow and pay unto the said Richard Pattinson the further sum of 3000 l . money foresaid, as the balance of the value of his said share: and whereas one-third part of the said estate falls and belongs to the said Arthur John Robertson in right of the said Mary Ann Pattinson, his wife: and whereas the said Arthur John Robertson has settled with the said Ellen Phyllis Pattinson, for her one-third share of the said estate. Now this indenture witnesseth, that in consideration of the said additional sum of 3000 l . of lawful money of Great Britain to the said Richard

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After the execution of this deed, if not previously, the appellant corresponded with and visited the trustees in Canada, in regard to the management and winding up of the deceased's estate.

Neither the 5000 l ., the price of the original sale, nor the 3000 l ., the additional price of the second sale, were paid at the period of the respective sales; but on the occasion of the second sale, the appellant gave the respondent his promissory note for 7000 l ., and afterwards he treated the debt thus constituted against him as a fund of credit for the respondent, by honouring the drafts of the respondent upon him, and paying monies on his account. In the month of June, 1832, the parties adjusted accounts, which were docqueted by the appellant in these terms:—

“And I declare that all accounts betwixt the said Richard Pattinson and me, at and preceding the said 20th day of April, 1832, are finally settled, (with the exception of 127 l . 8 s . 9 d ., due to Mr. Shepperd,) I having granted him my note for 7000 l ., of that date.”

On the 15th May, 1833, the parties again adjusted an account which set out with the 7000 l . contained in the promissory note, and was balanced by 5000 l . in favour of the respondent, after deducting payments by the appellant on his account. For this sum of 5000 l ., the appellant gave the respondent his promissory note. This second account was docqueted in these terms:—“The above account is this day settled, and Inches” (the appellant) “has granted his promissory note at twelve months' date, for the balance of 5000 l . arising thereon, the said note being payable to Mr. Pattinson.”

At this period the respondent quitted England for military service in India; and the estate, as thitherto, was thenceforth managed by the appellant.

In the month of October, 1842, the respondent brought an

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“The pursuer subsequently availed himself of that power, and a new transaction was entered into between the parties, whereby the nominal price was fixed at 8000 l ., being 3000 l . in addition to what had been previously agreed upon. But as it was known that this would give the pursuer 1000 l . more by his father's succession than either of his two sisters (whose shares, it was ascertained, would not exceed 7000 l .), it was expressly agreed upon, and formed part of the contract, that though the price was nominally fixed at 8000 l ., yet as the defender had never seen the property, and had no proper knowledge of its real value, no more should be exacted from him than 7000 l ., in the event of his being dissatisfied with the property, or of his being a loser by becoming the purchaser of the pursuer's share. In that event, the whole members of the family were to be placed upon a footing of equality. It was further agreed, that, unless for the purpose of procuring a commission in the army, and for defraying his outfit, the pursuer was not to exact payment of the capital, but was to allow it to remain in the defender's hands until he should sell, or otherwise dispose of, the Canadian property to advantage. On the other hand, the defender agreed to pay the interest to the pursuer for his support.”

This statement he followed up by another, that he had not been enabled to dispose of the Canadian property to advantage, and had been a loser by the bargain with the appellant. Upon these grounds, he insisted that on a final adjustment of the account, he would be entitled to a deduction of 1000 l . from the price of the respondent's share.

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The appellant's defence' to the action was rested upon this statement; but in a statement of facts made by him in the course of preparing the record, he introduced this new statement:—

“On reaching Canada, the defender, (appellant,) discovered that a large and valuable section of land contained in the schedules and conveyance before mentioned, and amounting to upwards of 1600 acres, had been sold in payment of taxes due from the estate. Farther, the defender found that the pursuer's father had laid himself under an obligation to grant a title in favour of a person of the name of Connar to another section of land situated in the United States, and which was likewise represented to the defender as forming part of the estate purchased by him; and the defender was himself under the necessity of executing a conveyance of said section, in implement of the late Mr. Pattinson's obligation. He farther discovered that another section of land, consisting of about 100 acres, and situated in the London District, Township of Blenheim, and contained in said schedules, and forming part of his purchase, had likewise been sold in payment of taxes. Moreover, in the Eastern District, another small portion of land had been disposed of in payment of taxes, and which the defender afterwards redeemed for 45 l . sterling. The value of the above deficiencies in the subjects sold amounts to upwards of 3000 l . sterling.”

Upon this statement, the appellant founded a plea, that he was entitled to a deduction from the sum sued for, corresponding to the deficiency in the value of the property sold to him.

After the record had been closed, the appellant craved a fishing diligence for recovery of all writings, “tending to show the value” of the property purchased, at the date of the conveyance in April, 1832, “to instruct what passed between the pursuer and defender, or between the pursuer's agent and the

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The diligence asked by the appellant was refused by the Lord Ordinary, and afterwards by the Court. The cause then returned to the Lord Ordinary, who, on 23rd December, 1843, pronounced the following interlocutor, adding the subjoined note:—

“Finds it admitted by the defender, and proved otherwise by writings produced, that he did, by indenture dated 26th August, 1830, purchase and acquire right to the whole succession, real and personal, which the pursuer, his near relative, was entitled to claim, either by the will or otherwise, as a legatee or heir of the deceased Richard Pattinson, of Montreal, his father, subject to a power of redemption by the pursuer at Whitsunday, 1832, if then disposed to exercise it: Finds that the pursuer, in virtue of the said reservation, insisted upon a farther consideration and sum being paid to him as the value of his share of the said succession; and accordingly, by indenture, dated 20th April, 1832, produced, the defender agreed to pay 3000 l . additional to the pursuer: Finds that the said indenture contained a clause, “whereby

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Note :—The pleas or claims of abatement urged by the defender seem to be twofold:—

1 st . Upon the averments in statement 3rd of his revised answers to condescendence, a deduction of 1000 l . is claimed by the defender, as it is said to have been agreed to by the pursuer at or prior to the execution of the indenture of 28th

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2 nd . The defender, upon his allegations in statement 7th of condescendence, sets forth that sundry large properties, said to have been specified in the schedules referred to in the indenture, turned out to have been sold for payment of taxes, or otherwise alienated, for which he is entitled to a large deduction from the covenanted price. But it is thought that such a claim is clearly irrelevant and untenable, on the following grounds:—

(1.) The demand of the defender is of the nature of a claim quanti minoris . He has never offered to give up the whole succession and account for all his intromissions, but seeks abatement from the price. On obvious grounds of law such a claim is not maintainable.

(2.) The claim of deduction urged by the defender is inconsistent with the terms and meaning of the contract. The pursuer was not asked to guarantee the schedules; all that he became bound for was, “that he hath not done anything, &c., whereby the said estate may be impeached or encumbered.” It is not alleged that the pursuer has violated that obligation.

(3.) The allegations of the defender, of errors and defalcations in the schedules, come too late . The defender says he discovered them in 1833. But he did not propose then to abandon his bargain, and give back the estate to the pursuer. He seems not to have given any intimation of this claim to the pursuer, till he lodged Revised Answers in this cause in 1843. Even in his Defences , lodged 7th December, 1842, he does not distinctly set forth the claim now chiefly insisted upon.

(4.) As Pattinson, senior, died many years prior to 1832,—

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There is one schedule produced, (No. 28 of process,) marked 1832, to which no specific objection is made; and unless there be some great error in that state, it would appear that there was then above 24,000 l . of assets, which was more than sufficient to pay the price of the pursuer's share. But the defender took his chance of this, and knew, at least as well as a youth who had arrived at the years of majority only two years before that agreement, what the estate was likely to yield.

The Lord Ordinary conceives that the granting such a diligence as the defender asked, would lead to long and vexatious delay in the constitution of a liquid claim. If such a diligence was necessary, it should have been asked for long ago.”

The appellant reclaimed, and on the 16th February, 1844, the Court before answer, allowed him to put in a minute “descriptive by date or otherwise, of any document or writing which he can aver to exist in support of the averment” that the respondent had agreed to restrict the purchase-money to 7000 l .

The appellant applied to a solicitor, who had been the common agent of himself and the respondent, for inspection of all letters which had passed from either of them to the other, but was refused inspection of any but his own letters. He then complied with the order of the Court by putting in a minute, which did not describe either by date or otherwise any document

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The Court, on the 6th of March, 1844, pronounced this interlocutor:—

“In respect that the demand for payment in the summons, is founded on an express obligation contained in the contract libelled on, find that the defender has failed to prove, by any writings under the hand of the pursuer, or to aver the existence of any writings sufficient to prove the conditions which he alleges formed part of the agreement of parties at the time when the said contract was entered into: And further, find that the claim of deduction stated in respect of the alleged deficiency in the extent of the Canadian property, has not been competently introduced into this record, and, as stated, is now wholly barred by the facts of the case: Therefore refuse the said reclaiming note, and adhere to the interlocutor reclaimed against, so far as it repels the defences and decerns.”

The appeal was against these different interlocutors.

The Attorney-General and Mr. Anderson for the Appellant.—I. The averment of the record, in regard to the sale of parts of the land previous to the sale to the appellant, was timeously stated, so long as it was done before the record was closed. At the time the defences were prepared, the appellant was not possessed of the information which enabled him afterwards to make that statement; and the very object of papers additional to the summons and defence being allowed, was to give the parties the benefit of laying before the Court any new statement or information. Even were this otherwise, the statement would have been admissible upon payment of costs, Donaldson v. Bannatyne , 9 S. & D. 333; but the respondent, by pleading over waived all right to ask for costs. Indeed, in Watson v. Edwards , 13 S. & D. 196, the Court allowed a new plea to be stated after the record had been closed, and refused to order payment of costs.

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II. Admitting this matter to be well pleaded in form, it is good in substance, for although the Courts in Scotland do not allow a rebate where the party claiming it is the actor, they do allow it where he is the defender, upon the same principle that in this country, the Courts require a party seeking to enforce a foreign decree, to establish that the decree is good and regular; whereas, if the party be defending himself upon a foreign judgment, the Courts assume the decree to be good and regular until the contrary is shown. Although the actio quanti minoris is not a favourite of the law, it is nevertheless admissible in some cases. Moreover, as the contract relates to land in Canada, the question must be regulated by the law of Canada, lex rei sitae , according to which a rebate is claimable. This in truth, however, is not a question upon the actio quanti minoris , in which the contract is affirmed but some abatement of the price or damage is demanded; here the action is for specific performance, and the abatement is only set up in defence, which is perfectly competent.

III. With regard to the diligence it was not possible for a party to remember the dates and particulars of a variety of letters and documents so as to be able to describe them, and it was not necessary that he should describe them. He was bound to prove any variation from the deed of 1832 scripto ; this he undertook to do, and he was entitled to the diligence he asked, in order to enable him to do so without any such clog being put upon his demand as had been imposed by the Court below.

[ Lord Chancellor .—Is not that matter of discretion for the Court?]

I admit it is.

[ Lord Chancellor .—Then it has been exercised here.]

Mr. Bethel and the Honourable Mr. Wortley were heard for the Respondents.

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Lord Chancellor .—My Lords, this case arises between parties who claimed under the will of the testator giving an estate in Canada to his son, subject to certain charges for the benefit of his younger children. The appellant having married one of the daughters, the son it appears gave up his interest in the estate, and the appellant agreed to purchase whatever interest the son might have in it. All this is contained in the deed to which I shall have occasion to advert for another purpose. Upon that purchase, the brother-in-law, the appellant, who married the sister, agreed to pay to the son of the testator, the brother of his wife, a certain sum of money for his interest in this property. But not being prepared to pay, or it being more convenient to him to postpone the payment, he gave him a promissory note for a sum, the balance of the purchase-money which remained unpaid; and upon application by the brother for the payment of this sum of money, he failed to obtain payment.

Upon this, a proceeding was instituted in the Court of Session, for the purpose of compelling the payment of that balance of the purchase-money. The case was met by two grounds of defence. The first is to be found in the 8th page of the appellant's case, in which he says:

to London and to Canada, and otherwise, in the settlement and adjustment of accounts with the trustees and others in the management of the estates; no more should be exacted from him, than 7000 l ., in the event of his being dissatisfied with the property, or of his being a loser by becoming the purchaser of the pursuer's share. In that event, the whole members of the family were to be placed upon a footing of equality. It was further agreed, that unless for the purpose of procuring a commission in the army, and for defraying his outfit, the pursuer was not to exact payment of the capital, but was to allow it to remain in the defender's, hands, until he should sell or otherwise dispose of the Canadian property to advantage.”

“By that transaction the nominal price of the pursuer's interest, in his father's succession, was fixed at 8000 l ., being 3000 l . in addition to what had been previously agreed upon. At this period it was ascertained that the shares of the pursuer's two sisters, would not amount to more than 7000 l . each, and the defender accordingly purchased Mrs. Rose's share for that sum. Since the pursuer was in this way to get 1000 l . more by his father's succession, than either of his sisters, it was expressly agreed upon and formed part of the contract, that though the price was nominally fixed at 8000 l ., yet as the defender had never seen the property, and had no proper knowledge of its real value, and would be put to very heavy expenses in journeys

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That is one of the allegations. And to test, therefore, the probable truth of that statement, I will now refer your lordships to what is stated in the deed itself, by which Richard Pattinson, the respondent, transferred to Robertson, the appellant, his interest in the father's property. It states, that by a certain indenture, of the 26th of August, 1830, Richard Pattinson, the son of the testator, in consideration of the sum of 5000 l , to him paid, by Arthur John Robertson, did bargain, sell, assign, and so on, “to Robertson, all and singular, the estate, both real and personal, chattels and effects which pertained to Richard Pattinson, his father, at the time of his death, so far as he, Richard Pattinson, had any right thereto, in virtue of the last will and testament therein before recited, or otherwise, as heir-at-law of his father, to have and to hold the real estate to Robertson, and his heirs for ever, and the personal estate, with the profits and produce thereof, unto him and his heirs for ever, subject nevertheless to the conditions and provisions specified and contained in the will of the father.”

Then comes this recital, “And whereas, the said trustees lately rendered to the parties interested in the said estate, full accounts of their intromissions therewith, together with

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We have this deed, therefore, reciting that to be the offer of the appellant. He is satisfied from the state of the accounts, that his brother-in-law's share exceeds 5000 l ., and he therefore offers and agrees to give him 3000 l . more, in consideration of which Richard Pattinson transfers and hands over, (the usual words,) in behalf of John Robertson, “all and singular the estate, both real and personal, wheresoever situate, goods, chattels, and effects, which pertained to the said Richard Pattinson, so far as he has right thereto, by virtue of the said will or otherwise.”

Is it possible, therefore, for words to express more distinctly the absolute purchase out and out of whatever right and interest the son might have in his father's property? And yet that being expressed on the face of the deed, the brother-in-law taking the property from the son, by an assignment of all his estate and interest therein, he says it was part of that contract and agreement, that all that was so recited in the instrument, should go for nothing; that that 8000 l . was merely a nominal sum, not being the sum contracted for between the parties; and that the sum actually agreed to be paid, was to be the result of future inquiries aud future contingencies, as to whether it might

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That, however, my Lords, he puts forward as his defence.—I am now addressing myself to the occasion of the production of the instrument; and he then applies to the Lord Ordinary for a diligence against havers, upon which the Lord Ordinary states this:—

“The Lord Ordinary having heard counsel on the closed record, and more especially on the motion of the defender for a diligence against havers, to recover the writs set forth in the specification No. 50 of process, which he insisted on his right to obtain in modum probationis , and before debating the case on the merits, refuses the diligence craved in hoc statu , and appoints the debate on the merits to proceed at the Lord Ordinary's first hour in November.”

And so the case went on upon the merits; the record was closed, and the Lord Ordinary made his interlocutor, which I shall presently refer to; and then, when it came before the Inner House, the appellant again applied for this diligence against havers, for the purpose, as he said, of proving his case.

The application which the Lord Ordinary had refused in the first instance, was the subject of an application to the Inner House, and it was again refused. But when the case came to be heard upon the merits, the second division of the Court pronounced the following interlocutor:—

“The Lords having advised the reclaiming note of Arthur John Robertson, against Lord Cuninghame's interlocutor, dated the 23rd day of December last, and heard counsel for the parties thereon before answer, allow the defender to put in a minute, descriptive by date and otherwise, of any document or writing which he can aver to exist in support of the averments contained in the third statement of the record.”

Now nothing can be more indulgent than this mode of proceeding. He makes his statement in very general terms. Still if there were any truth in the allegation, he states a

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Now, my Lords, nothing can be much more general than the terms in which he describes, in the first instance, what it is that he requires. It is not necessary to refer to it, because the reading it through would be merely reading through a description of every possible document that could have existed at any time. But a letter is produced in the correspondence between the solicitors, in which we see a little what it is that he was relying upon, or rather, we see that there was nothing upon which he had to rely when he put in his defence. He says, “with reference to the conversation which Mr. Belford and I had with you to-day, I have to request that you will, at your very earliest convenience, examine the correspondence in your possession, between the late Mr. Alexander Shepperd, solicitor, here, Mr. Pattinson, and Mr. Robertson, during the years 1833, 1834, 1835, and 1836, with the view of ascertaining the exact understanding entered into between Mr. Pattinson and Mr. Robertson, as to the disposal of Mr. Pattinson's interest in the property in Canada, which belonged to his father.”

Now these parties had come to a final conclusion—they had executed a deed in which the contract between them was distinctly specified. It is perfectly immaterial, therefore, what

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Now, my Lords, the powers of the Court in making these orders are discretionary. By “discretionary,” I mean, of course, that they are to be regulated by the rules which regulate the administration of justice; but it is not a matter of right to which the party is entitled as a matter of course, but it is in the discretion of the Court to be regulated according to the circumstances of the case. In this case, I think the Court have exercised a most wise and salutary discretion, having put the party to specify what it is that he wants, and when he cannot tell them, not to delay the administration of justice on this ground. So much, my Lords, for the first point in this case, as to refusing the diligence against havers.

Now, my Lords, the second ground of defence which the appellant rests upon is to be found, not in the original defence, but is to be found in the statement of facts by the defender, which he put in after having put in his regular defences; the answer to the summons being totally silent in this respect,

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“On reaching Canada, the defender discovered that a large and valuable section of land, contained in the schedules and conveyance before mentioned, and amounting to upwards of 1600 acres had been sold in payment of taxes due from the estate. Further, the defender found that the pursuer's father had laid himself under an obligation to grant a title in favour of a person of the name of Connar, to another section of land, situated in the United States, and which was likewise represented to the defender as forming part of the estate purchased by him; and the defender was himself under the necessity of executing a conveyance of said section, in implement of the late Mr. Pattinson's obligation. He further discovered that another section of land, consisting of about 100 acres, and situated in the London district, township of Blenheim, and contained in said schedules, and forming part of his purchase, had likewise been sold in payment of taxes. Moreover, in the eastern district, another small portion of land had been disposed of in payment of taxes, and which the defender afterwards redeemed for 45 l . sterling. The value of the above deficiencies in the subjects sold amounts to upwards 3000 l . sterling.”

That is his statement, therefore, that he found the landed property was not such as he had expected; that he found that certain portions had been sold for the payment of taxes, and other circumstances connected with the property, which diminished the value. This he does not state, as I before observed, in the defence to the summons, but in his statement of facts.

Now all this is perfectly immaterial, for what he has purchased is not an ascertained quantity of land to be paid for so much by the acre, giving the means by which the Court can ascertain to what extent he ought to be relieved from the purchase-money. It is perfectly immaterial, if what he has purchased was all the interest of the party from whom he

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Now it is impossible to find terms which can more distinctly express the purchase of all such interest as the son had. There is no reference to quantity; nothing by which it was to be ascertained whether the sum was too much or too little; but, whatever it might be, it was purchased by the brother-in-law at the sum fixed.

Under these circumstances it is quite immaterial to consider whether the statement I have alluded to was properly introduced, or not properly introduced into the record. It has no reference to the subject matter of the transaction between the parties; and, therefore, in my opinion, this defence on this ground totally fails; and I should, therefore, advise your lordships to affirm, with costs, the interlocutor appealed from; and I must say, that this is one of the most ungracious defences against a legitimate demand which has come under my consideration.

It is ordered and adjudged, That the said petition and appeal be, and is hereby, dismissed this House; and that the said interlocutors, therein complained of, be, and the same are hereby affirmed. And it is further ordered. That the appellant do pay, or cause to be

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Solicitors: George Parsons — Richardson and Connell, Agents.