Stewart's Executors v Stewart
| Jurisdiction | Scotland |
| Judgment Date | 12 May 1993 |
| Date | 12 May 1993 |
| Docket Number | No. 42 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Lord Kirk wood
ContractHeritable property and conveyancingEvidenceProof by writSale of heritageInformal agreement followed by homologationWhether writ of defenders referable to agreementWhether trust disposition and settlement proposing agreement satisfactory proof by writ
PracticePleadingsRelevancyTest of the weaker alternativeWhether applicableWhether action be dismissed
In 1953 a testator died and was survived by, inter alios, two sons (A and B) and a daughter (C). In his trust disposition and settlement he, inter alia, disponed a farm, which A tenanted, equally to B and C with an express desire that A would acquire the farm from B and C at a price of 8,000 with interest at four per cent per annum. After the testator's death A stopped paying rent for the farm and, instead, paid the appropriate interest. In 1954 he paid 1,000 towards settlement of her share of the purchase price, paid interest to her on the remaining 3,000 and continued to pay B interest on his 4,000 share. In 1972 he paid the balance of her share to C. In 1973 A and B entered into a minute of agreement whereby B accepted from A aright of pre-emption in the farm should A sell any part of it. Thereafter A ceased paying interest to B but wintered B's cattle on the farm without charge and in lieu of further interest until he died in 1988. An action of declarator and implement of the obligation to grant a disposition was raised by A's executors against B and C. In procedure roll, the defenders contended, inter alia, that there were no relevant averments of a contract to sell the farm to A, or of any informal agreement which was capable of being homologated. They also contended that there were insufficient averments that the solicitors who had granted receipts for the payment of interest did so as agents for the defenders and that the receipts did not relate unequivocally to the agreement and thus failed to amount to homologation of it. The Lord Ordinary (Kirkwood) dismissed the action on the ground that the pursuers had not relevantly averred that both defenders had entered into an agreement to sell the farm to A, it being incompetent for the pursuers to succeed against B and not C where the sale averred was a sale of the whole property. The pursuers reclaimed. Before the summar roll hearing the pursuers amended their pleadings in order to introduce, in the alternative, that B and C had entered into an agreement with A separately to sell to him their respective pro indiviso shares and for implement of those agreements.
Held (rev. judgment of Lord Kirkwood) (1) that to prove an agreement the writ founded upon had to be in unequivocal terms; (2) that the acknowledgement of the obligation did not need to be expressed in the writ itself but might be established from its terms by inference; (3) that the 1954 receipt, in stipulating the capital and interest due "in terms of will", envisaged that the trust disposition and settlement was intended to be read together with its terms and those terms, when read together with the trust disposition and settlement, were sufficiently clear, distinct and unequivocal to entitle the pursuers to seek to prove the agreement to sell the farm; (4) that proof of an agreement to sell heritage had to be by way of writ or oath so that proof only of actings from which it might be established that there had to have been some form of agreement was not enough and the requirement for proof by writ or oath could not be satisfied by reference to the trust disposition and settlement; and (5) that the two-contract theory added by way of amendment was incompatible with the trust disposition and settlement which contemplated a sale of the whole farm at a cost of 8,000, not sales by E and C separately of their own pro indivisoshares; but (6) that the rule that a party perilled his case on the weaker alternative applied only where the alternative was weaker in law and that, as the pursuers would succeed if they proved their single contract case, the fact that the two-contract case was irrelevant provided no logical reason for treating the whole action as being irrelevant; and reclaiming motion allowed.
Errol v. WalkerSC1966 S.C. 93 and Morrison-Low v. PatersonSC1985 S.C. (H.L.) 49distinguished;Haigh & Ringrose Ltd. v. Barrhead Builders Ltd.UNK1981 S.L.T. 157 applied.
Mrs Maggie Bella Halkett or Stewart and Keith Douglas Falconer Stewart, Junior, the executors-nominate on the estate of the late Charles Stewart, and Mrs Maggie Bella Halkett or Stewart as an individual brought an action in the sheriffdom of Grampian, Highland and Islands at Aberdeen against Dr William James Morrison Stewart and Mrs Catherine Margaret Stewart or McCall-Smith as the surviving trustees of the late Charles Stewart as such trustees and as individuals. The cause was subsequently remitted to the Court of Session.
The following narrative is taken from the opinion of the Lord Ordinary (Kirkwood): "In this action the pursuers are the executors-nominate of the late Charles Stewart, farmer, who resided at Cocklarachy, Huntly, Aberdeenshire, and who died on 10th June 1988. The defenders are the brother and sister of the said Charles Stewart.
"The pursuers seek inter alia decree of declarator that the defenders have failed to implement an agreement entered into between them and the said late Charles Stewart, Farmer of Cocklarachy, Huntly, Aberdeenshire, on or about 18th January 1953, and in particular have failed to make, execute and deliver to the said Charles Stewart, a valid Disposition of All and Whole the Farm of Cocklarachy in the Parish of Drumblade and County of Aberdeen, together with Eighty acres or thereby of the Ba'hill Wood adjoining the said farm. The second crave seeks decree ordaining the defenders to implement and fulfil said agreement in all respects within one month from the date of decree to follow hereon, and in particular to make, execute and deliver to the pursuers, in return for the balance of the purchase price, a valid disposition of the said subjects in favour of the pursuers, the executors-nominate of the said Charles Stewart, and to make and execute such other deeds as may be necessary in order to give the pursuers a valid title to the said subjects. The pursuers also crave the court, failing the execution of said deed or deeds, to dispense with the granting of them by the defenders and to direct the Depute Principal Clerk of Session to execute the same. Alternatively, the pursuers seek payment (a) by the first-named defender (Dr Stewart) of the sum of 196,000 and (b) by the second-named defender (Mrs McCall-Smith, formerly Miss Catherine M. Stewart) of the sum of 200,000, with interest.
"The late William Stewart, who was the father of Charles Stewart and the defenders, died on 18th January 1953 leaving a trust disposition and settlement dated 31st March 1952 and registered in the Books of Council and Session on 10th February 1953. Clause (second) of the said trust disposition and settlement provided as follows: I leave and bequeath free of government duties and all expenses the Farm of Cocklarachy belonging to me, and of which my son Charles Stewart is tenant, equally between my son William James Morrison Stewart and my daughter Catherine Margaret Stewart: declaring that it is my desire that the said Charles Stewart, will acquire the farm from his brother and sister at the price of Eight Thousand Pounds and that he will pay to his said brother and sister interest at the rate of four per centum per annum on the value of the farm or on such portion I thereof as shall remain unpaid.
"I was informed that at the time of his father's death Charles Stewart was the tenant of the farm and that he paid his father a rent of 307 a year.
"The pursuers aver that upon the death of William Stewart the defenders agreed with their brother, the said Charles Stewart, to sell to him the farm and lands of Cocklarachy as directed by and on the terms and conditions stipulated in their father's said trust disposition and settlement. The pursuers aver that interest at the rate of four per cent per annum on the said sum of 8,000 was paid by Charles Stewart to the defenders as from the date of their father's death, and refer 3 to a receipted Statement of Sums due by Mr Charles Stewart dated 9th June 1954 and issued by Messrs Murdoch McMath & Mitchell, solicitors, Huntly, who then acted for the defenders. That document (which is no. 39 of process) gives details of inter alia sums paid as interest due to Dr William J. M. Stewart and Miss Catherine M. Stewart jointly in terms of will. The statement acknowledges payment of interest to the terms of Martinmas 1953 and Whitsunday 1954 as well as a proportion of interest from the date of death of the said William Stewart to 15th May 1953. The pursuers go on to aver that after the issue of that statement, payments of interest on the outstanding balances due to the defenders were acknowledged by further half-yearly receipts issued by said solicitors on behalf of each of the defenders and the receipts narrated that the sums acknowledged were collected on behalf of Dr W. J. M. Stewart and on behalf of Mrs M. McCall-Smith respectively. In any event, by accepting these sums from said solicitors the second defender ratified the solicitors' actings on her behalf. In or about 1954 Charles Stewart paid 1,000 to his sister towards settlement of her share of the u purchase price and he thereafter paid interest at the rate of four per cent per annum to his brother on 4,000 and to his sister on 3,000. The pursuers produce and found on two receipts dated 27th April 1972 (nos. 40 and 41 of process) in terms of which it is averred that the solicitors acknowledged having received from Charles Stewart interest in respect of the farm of Cocklarachy amounting to 80 and 60 on behalf of the first and second defenders respectively. These amounts of 80 and 60 represented one...
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