Livingstone v Allans
| Jurisdiction | Scotland |
| Judgment Date | 05 December 1900 |
| Docket Number | No. 37. |
| Date | 05 December 1900 |
| Court | Court of Session |
Lord Pearson, Lord President, Lord Adam, Lord M'Laren.
AssignationReal SecurityTantum et taleTrust Trust title for beneficiaries pro indivisoProof of purposes of trustJoint Adventures.
A feudal title to lands was taken to A and B as trustees for themselves, each to the extent of one-half pro indiviso. By ex facie absolute disposition, B conveyed to an onerous assignee his one-half pro indiviso of the lands. This disposition was recorded.
In a competition between B's disponee and A, held (1) that the disponee's right was qualified by the trust disclosed in his disponer's title; (2) that the purposes of the trust, not being set forth in the title, might be proved by parole; and (3) that, accordingly, as it was established by such proof that the purpose was a joint adventure by A and B with reference to the lands in question, the disposition by B was only effectual to the extent of his interest in the joint adventure, viz., to the extent of one-half of the free balance on an accounting with A.
Hugh Livingstone, wholesale ironmonger in Glasgow, and William Brown Alexander, wright, Bridge of Weir, acquired in 1896 an area of ground on the west side of Milbrae Crescent, Glasgow, for the purpose of a joint building speculation, and as a site for tenements to be erected and afterwards sold for their behoof. In the feu-contract of this ground, dated 10th and 25th, and recorded 27th April 1896, the title was taken to and in favour of the said Hugh Livingstone and William Brown Alexander, and the survivor of them, and the heir of the survivor, as trustees and in trust for behoof of the said Hugh Livingstone and William Brown Alexander, and their respective heirs and assignees whomsoever, each to the extent of one-half pro indiviso, heritably and irredeemably.
In Pursuance of the joint adventure a tenement, No. 17 Millbrae Crescent, was built during 189697, the main part of the outlay on which was borne by Livingstone.
By disposition dated 23d, and recorded 25th April 1898, Alexander, having borrowed 250 from James and John Allan, wholesale provision merchants in Glasgow, conveyed to them his one-half pro indiviso of the subjects described in the feu-contract. This disposition was ex facie absolute, but was qualified by a back-letter, restricting it to a conveyance in security of the loan. The disposition was duly recorded.
Disputes having arisen among the parties, the tenement No. 17 Millbrae Crescent was, by common agreement, conveyed to Mr William M. Buchan, writer in Glasgow, in order that he might sell it and hold the proceeds for whoever should be found entitled thereto.
The tenement was accordingly sold, and one-half of the proceeds was, of consent, paid to Livingstone. In regard to the other half, amounting to 273, 7s. 10d., an action of multiplepoinding was brought by Livingstone as real raiser in name of Buchan as nominal raiser, and calling Alexander and the Allans as defenders. In this action claims were lodged by Livingstone and the Allans. Livingstone claimed the whole fund in medio in liquidation of the balance due to him by Alexander arising out of the joint adventure.
He pleaded;(1) The said indebtedness of the defender Alexander to this claimant being a proper charge upon the share of the proceeds of the heritable property in question, and being in excess of the said share which forms the fund in medio, this claimant ought to be ranked and preferred in terms of one or other of his claims, with expenses.
The Allans also claimed the whole fund in medio as onerous assignees of Alexander holding a completed real security.
They pleaded;(3) The said claimant's [i.e., Livingstone's] averments of joint adventure are excluded by the terms of the title to the property; et separatim, they can only be proved by writ or oath.
On 7th March 1900 the Lord Ordinary (Pearson), before answer, allowed the parties a proof. The proof established, inter alia, the facts relating to the joint adventure, and the state of the accounts arising therefrom between Livingstone and...
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