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Scottish Court of Session Decisions >>
James Maxwell v Adam Maxwell. [1662] Mor 16164 (13 February 1662)
URL: http://www.bailii.org/scot/cases/ScotCS/1662/Mor3716164-003.html Cite as:
[1662] Mor 16164
A ticket or obligation to grant a backbond found to be sufficient evidence of a trust.
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James Maxwell pursues Adam Maxwell for declaring a disposition of lands, granted by the said James' wife to the said Adam, to have been in trust to her behoof, and, after her decease, to her husband; and for adminicle libelled a bond granted by the said Adam, some months after the disposition, whereby he obliged himself to grant a back-bond to the lady, by the advice of lawyers, conform to the disposition made to him, and obliged him to deliver the said back-bond to the lady, or to the lady's husband after her death; whereupon it was alleged, that the back-bond being to be made by the advice of both their lawyers, the disposition behoved to be in trust. The defender opponed the ticket, bearing the back-bond to be conform to the disposition, in which there was an express reservation of the lady's liferent; so that the back-bond could import no more than securing of that liferent. The pursuer answered, These words, “conform to the disposition,” were set upon the margin of the ticket, which was all written by the defender's hand, and might have been added ex post facto; 2do, The ticket behoved to import more than the liferent, because the liferent was fully and clearly reserved, and oft-times repeated in that disposition, so that clause had been frustrated; 3tio, The obligation to deliver the back-bond to the lady's husband, after her death, could not be understood to be only in relation to her liferent, which and the husband's interest should cease by her death.
The Lords found the ticket sufficient to instruct trust; but because the terms of the trust were not clear, they, before answer, in relation to the probation of the terms thereof, ordained the parties to count and reckon upon all sums due by the lady to the defender in contemplation of the trust, that the same might be allowed and satisfied to the defender, before he be denuded.
