Weissenbruch v Weissenbruch
| Jurisdiction | Scotland |
| Judgment Date | 24 May 1961 |
| Docket Number | No. 36. |
| Date | 24 May 1961 |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Cameron.
TrustProof of trustEvidenceHusband and WifeHeritable and moveable property bought during subsistence of marriage by husband in wife's nameSubsequent divorceWhether proof of ownership restricted to writ or oathAct 1696, cap. 25.
A husband bought a farm in his wife's name in order to facilitate the obtaining of a building society loan. For the same reason he bought, and later sold, two houses in his wife's name. The proceeds of sale of the houses were lodged on deposit receipt in the wife's name. When the husband turned his engineering business into a private limited company, he took 1500 of the shares in his wife's name so that he would not appear on the register of the company as the sole shareholder. He later sold these shares at par. Thereafter, the wife divorced her husband. Before the divorce proceedings were concluded, the husband raised an action for declarator that he was in right of the property held in his wife's name. In her defences the wife pleaded that the husband's averments amounted to allegations of trust and could only be proved by writ or oath in terms of the Act 1696, cap. 25.
Held by the Lord Ordinary (Cameron) (1) (followingInglis v, Smyth's Executrix, 1959 S. L. T. (Notes) 78) that proof of the averments relating to the ownership of the farm fell to be restricted to the writ or oath of the defender; but (2) that proof of the averments relating to the sum on deposit receipt and to the proceeds of the sale of the shares did not fall to be so restricted.
Galloway v. Galloway, 1929 S. C. 160,considered.
Adriaan Johannes Cornelis Hendricus Weissenbruch, residing at 42 Camphill Avenue, Glasgow, brought an action against his wife, Mrs Eva Weissenbruch, residing at Ellan Vanin Farm, Cullicudden, Conon Bridge, Ross-shire, in which he concluded as follows:"1. For declarator that the disposition dated 26th January and recorded in the Division of the General Register of Sasines applicable to Ross and Cromarty 20th February 1957 whereby Mrs Inez Elena Burnett or Macdonald in consideration of the sum of 4000 sold and disponed to the defender and her heirs and assignees whomsoever heritably and irredeemably All and Whole the subjects known as Ellan Vanin Farm, Cullicudden, Conon Bridge, Ross-shire, was a disposition in trust in the person of the defender for the use and behoof of the pursuer and his assignees. 2. For decree ordaining the defender to denude of the said subjects...
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Stack v Dowden
...made to the purchase of the house and to its upkeep and improvement during their relationship: Galloway v Galloway, 1929 SC 160; Wissenbruch v Wissenbruch, 1961 SC 340; Denvir v Denvir, 1969 SLT 301. Proof of these matters has been made easier by the abolition of the requirement of proof ......