Galloway v Galloway

CourtCourt of Session
Judgment Date06 Dec 1928
Docket NumberNo. 21.
Court of Session
2d Division

Lord Justice-Clerk (Alness), Lord. Ormidale, Lord Hunter, Ld. Anderson.

No. 21.

TrustProof of trustEvidenceHusband and WifeTransaction between husband and wifeTrust or mandateMisrepresentationCompetency of proof prout de jureWrit or oathAct 1696, cap. 25.

A husband brought an action against his wife, in which he craved the Court to declare that he was the true owner of certain heritable property, the title to which was in his wife's name, and to ordain her to execute a conveyance of the property in his favour. He averred that, prior to going abroad, he transferred certain funds belonging to himself to his wife so that in emergency she might be able to intromit with them, but with no intention of donating them to her, and that, during his absence abroad, he remitted to her further sums with the intention that she should lay by for him so much of them as she did not require for the aliment of herself and their children; that the owner of the heritage in question, being desirous of selling it, approached the defender, who wrote to the pursuer and obtained his consent to the purchase; that the defender then wrote to the pursuer that, as he was abroad, the property would require to be put in her own name, but that it could be taken in the pursuer's name on his return home; that he, believing this statement, consented to the title being taken in the defender's name; that the price was paid from the funds belonging to the pursuer which were in the defender's hands; and that the defender had refused to execute a conveyance in his favour. The defender did not deny that the pursuer had handed or remitted money to her as he averred, and she did not aver that these sums were intended as a gift to her or that she had any funds of her own from which the price of the property had been paid. She contended that the pursuer's averments could be proved only by writ or oath.

Held that the case might prove to be one, not of trust, but of agency or mandate, to which the Act 1696, cap. 25, did not apply; and proof before answer allowed.

Held further, by the Lord Justice-Clerk and Lord Hunter (Lord Ormidale and Lord Anderson reserving their opinions), that the Act 1696, cap. 25, did not apply in questions between husband and wife.

Held also, by the Lord Justice-Clerk and Lord Ormidale, that the Act 1696, cap. 25, could not preclude the pursuer from proving prout de jure that his assent to the transaction had been obtained by misrepresentation.

Anderson v. Anderson's TrusteeUNK, (1898) 6 S. L. T. 204, commented on.

Anthony Galloway, Victoria Cottages, Hill of Beath, Fife, brought an action in the Sheriff Court of Fife and Kinross at Dunfermline against Mrs Elizabeth Paterson or Galloway, 16 Maygate, Dunfermline, his wife, in which he craved the Court, inter alia:(1) To find and declare that the pursuer is the true owner and heritable proprietor of the three dwelling-houses, outhouses, garden ground, and pertinents known as Victoria Cottages, Hill of Beath, in the parish of Dunfermline and county of Fife, which are presently vested in the defender; (2) to ordain the defender, within such time as the Court may decern, to execute a conveyance of the said subjects and others in favour of the pursuer, to be held by the pursuer subject to the burdens in the said titles He also craved a decree for payment of 200.

The pursuer averred that the parties were married in 1913; that there were two children of the marriage; and that on 29th March 1928 the defender left the house at Victoria Cottages, Hill of Beath, where they had been residing together, and was now living with her brother, Alexander Paterson, at 16 Maygate, Dunfermline. He also averred that from the time of his marriage until 1923, with the exception of a period of service in the army, he had been in regular employment earning good wages.

The parties further averred, inter alia:(Cond. 7) In March 1923 the pursuer resolved to go to America for employment. He had at that date at his credit with said Lochgelly Equitable Co-operative Society, Limited, share money to the value of 159, 16s. 10d. In order to enable the defender to intromit with this money in case of emergency while pursuer was in America the pursuer signed an authority to the said Co-operative Society, Limited, authorising its transfer to the defender. Said transfer was made without any intention on the part of the pursuer of donating the share money to the defender, in whom he had absolute trust and confidence, and the transfer was accepted by defender on that footing. In addition, the pursuer similarly invested for the defender 50 in Beath Mutual Public-house Society, Limited. (Ans. 7) Admitted that in or about 1923 the pursuer went to America, and that, at or about the time he left, the accumulated dividends then in the hands of the Co-operative Store were transferred to the defender. Admitted also that 50 was invested in the name of defender in Beath Mutual Public-house Society, Limited. (Cond. 8) The pursuer remained in America from March 1923 until the late summer of 1925. During this period he was in constant employment as a plasterer, earning a large wage. He sent home to the defender each week sums varying from between 8 to 10. The defender acknowledged receipt of said money. The intention of the pursuer was that the defender should lay by for him such money as was not required for the upkeep of the house and the aliment of herself and two children. While the pursuer was in America until Whitsunday 1925 the defender continued to reside in the room and kitchen house to which they had removed when they went to Lochgelly. Defender's averments, so far as not coinciding herewith, are denied. (Ans. 8) Admitted that the pursuer remained in America until late in 1925. Admitted that the pursuer made certain remittances to the defender while the pursuer was in America. Quoad ultra denied. The purpose of these remittances was for the aliment of the defender and the two children of the marriage. They were not more than sufficient for that purpose. (Cond. 9) In the early part of 1925 the defender was approached by the then owner of the heritable subjects and others known as Victoria Cottages, Hill of Beath, namely, Alexander Page, who was desirous of selling the property for 250. Defender undertook to write pursuer for his instructions. The defender accordingly communicated with the pursuer by letter, and the pursuer consented to the purchase at said price of 250. The defender wrote to the pursuer that she would arrange for her brother, the said Alexander Paterson, who was a man of business and is the whole time manager and secretary of a limited liability company, to arrange for the carrying out of the transaction. The defender also wrote to the pursuer that the property would meantime require to go in her own name in view of the fact that the pursuer was abroad, but that it could be taken in the pursuer's name when he returned home. Defender is called on to state the source of the funds with which the property was purchased. Defender had no funds other than the savings or earnings of the pursuer handed or remitted by him to her as condescended on. (Cond. 10) The pursuer assented to this being done, because he believed the defender's statement that the property could not be transferred to him while he was abroad. The pursuer returned home on vacation later in 1925, by which time the property had been conveyed to the defender. The defender had, a few months before pursuer's return in 1925, removed from Lochgelly to one of the dwelling-houses of the subjects and others purchased. Said dwelling-house was a room and kitchen house, and here the defender resided until she left as aforesaid on 29th March 1928. It is averred that payment of the purchase price of said subjects and others was made from the funds belonging to the pursuer, which were from the date of the marriage paid over by the pursuer to the defender as aforesaid. (Ans. 9 and 10) Admitted that the said cottages were purchased in or about the year 1925, and that with the consent of the pursuer the title thereto was taken in the name of the defender. Admitted that the defender and her children resided in one of these cottages until March 1928. Quoad ultra denied. (Cond. 11) On the occasion of pursuer's return in 1925 he called with defender on Mr H. M. Pearson, solicitor, Dunfermline, who had acted as agent in connexion with the purchase of the property, with a view to the title being transferred to the name of pursuer. Pursuer was then advised that the transfer would be expensive, and in order to save expense Mr Pearson suggested that the parties would each make a will in favour of the survivor. No further steps were, however, taken in the matter, the pursuer returning soon thereafter to America, as after condescended on. (Ans. 11) Not known and not admitted.

The pursuer's condescendence then contained averments with regard to his return to Scotland for a six weeks visit in 1926, and to his final return in February 1928. He also averred that his wife had in her possession considerable funds belonging to him, to which the petitory crave of the initial writ related. Condescendence and answer 16 were as follows:(Cond. 16) The pursuer has called upon the defender to convey to him the said subjects and others at Victoria Cottages, but she refuses or delays to do so. The present action has accordingly been rendered necessary. (Ans. 16) Denied that the present action is necessary. Quoad ultra admitted.

The pursuer pleaded, inter alia:(1) The defender's averments are irrelevant, and decree should be pronounced as craved. (2) The pursuer being the true owner and heritable proprietor of the heritable subjects condescended on, decree of declarator should be granted as craved under head (1), with expenses. (3) The defender having refused to execute the conveyance of the said heritable subjects to the pursuer as condescended...

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