Anderson v Anderson
| Jurisdiction | Scotland |
| Judgment Date | 21 March 1961 |
| Date | 21 March 1961 |
| Docket Number | No. 8. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Walker.
WritConstructionSale of heritage"Offer"Alleged seller still infeft at date of deathPurchase price not paid within alleged seller's lifetimeExercise of alleged option to purchase after granter's deathWhether writ unilateral obligation to sell, offer to sell, memorandum of sale, or nullity.
Certain subjects were disponed in 1926 to two sisters and "their assignees and to the survivor of them and the heirs and assignees whomsoever of such survivor."
On 23rd March 1943 one of the sisters granted over a sixpenny stamp a "deed of sale" of her one-half pro indiviso share of the subjects, of which the material terms were: "I Margaret J. Anderson do hereby sell my share of said holding to my brother John for the sum of 600 on this day 23rd March 1943 my brother John becomes owner of my share from this date."
Sixteen years later the granter of this deed died intestate, still infeft in her share of the property, and not having received the 600. Her brother was thereafter served as her heir, and as such, in 1960, he granted to himself as an individual a disposition of her share of the property. This disposition narrated the fact of a sale by the deceased to her brother with entry at 23rd March 1943 for the price of 600. In all other respects the disposition bore to have been granted by her brother as her heir-at-law. It stated that the 600 was instantly paid to him as such heir, the existence of the original destination to "the survivor" in the deceased's infeftment was suppressed, and the decree of general service alone was used to deduce title from the deceased.
The other sister then brought an action to have this disposition reduced.
Held (1) that the 1943 deed could not be construed either as an offer or as an obligation to sell: and that as its plain terms related to a sale which had not taken place, it was a nullity; and (2) that the subjects accordingly passed in terms of the survivorship clause in the 1926 disposition: and 1960 disposition reduced.
Annie Christina Anderson brought an action against John Anderson concluding for "production and reduction of a pretended disposition bearing to be dated 6th January 1960 by the defender as heir-at-law of the late Margaret Jane Anderson in favour of himself as an individual, and recorded in the General Register of Sasines applicable to the County of Caithness on 22nd February 1960."
The parties averred:(Cond. 1) "The pursuer is a sister of the defender and also of the late Miss Margaret Jane Anderson (hereinafter referred to as the deceased) who died intestate and domiciled in Scotland on 8th February 1959. The pursuer believes that the defender was served as heir-at-law of the deceased conform to decree of general service granted by the Sheriff of Caithness, Sutherland, Orkney and Zetland at Wick dated 9th and recorded in Chancery on llth December 1959." (Ans. 1) "Admitted. Explained that the defender is also the executor-dative of the deceased conform to confirmation in his favour by the Sheriff of Caithness dated 29th May 1959." (Cond. 2) "By virtue of a disposition executed in their favour on 12th May 1926 the defender as heir-at-law of his father the late James Anderson disponed to the pursuer and the deceased and their assignees and to the survivor of them the lands known as number one Broynach, Claredon, Thurso. The said disposition was recorded in the General Register of Sasines for the County of Caithness on 16th June 1926, and is produced herewith." (Ans. 2) "Admitted under reference to the said disposition for its terms." (Cond. 3) "By a pretended disposition dated 6th January 1960 and recorded in the General Register of Sasines for the County of Caithness on 22nd February 1960, the defender as heir-at-law aforesaid purported to dispone the deceased's one-half pro indiviso share of the said subjects to himself as an individual in consideration of the sum of 600 instantly paid to himself as heir-at-law upon a narrative that the deceased sold to him her said one-half pro indiviso share as at 23rd March 1943, but died without having granted a conveyance in his favour. A copy of the pretended disposition is produced and referred to for its terms. With reference to the averments in answer, the said holograph document is referred to for its terms, beyond which no admission is made. Explained and averred that the pursuer was unaware of the existence of the said holograph document until about October 1959. Quoad ultra the averments in answer are not known and not admitted." (Ans. 3) "Admitted that the defender as heir-at-law aforesaid disponed the deceased's one-half pro indiviso share of the said subjects to himself as an individual in consideration of the sum of 600 instantly paid to himself by disposition dated 6th January 1960 and recorded...
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Bell's Executors v Inland Revenue
...disposition was granted on 6th December 1977 and there was no contractual obligation to sell prior to that date: seeAnderson v. AndersonSC 1961 S.C. 59. John, or a successor to his pro indiviso share, could still, until that date, have raised an action of division and sale. If such an actio......