Scottish Court of Session Decisions

Subject_1 FRAUD.
Subject_2 SECT. III.

Underhand dealing.

Crichton
v.
Crichton and Carruthers of Holmains

Date: 1 December 1671
Case No. No 17.

Fraud practised in filling up the endurance of a tack which had been left blank, found not to affect a singular successor, ignorant of the fraud.

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Mr George. Crichton being a minister in Ireland, and being long out of the country, and having interest by wadset in some lands possessed by the Laird of Holmains, he gave a tack of the said lands to John Crichton, wherein the tack-duty is twelve pennies Scots, and the years of endurance insert with a several hand from that which writes the body, and is fourscore one years; and there is a back-bond of the same date with the tack, bearing, that though the tack-duty was but twelve pennies Scots, yet the tacksman obliged himself, so soon as he attained possession, to pay yearly L. 6 Sterling, which back-bond bears in the narrative, that the tack was set for nineteen years, and these words, nineteen years, are insert with another hand in a large blank. The said tacksman coming to Scotland, did transact with Holmains, who possessed the lands upon another title, and paid him a sum of money, for which he assigned the tack. Now, Mr George Crichton having assigned his right to John Crichton, his goodson, he pursues a reduction of the tack against the said John Crichton tacksman, and against Holmains, on this reason, that the tack when it was subscribed and delivered, was blank in the time of endurance, and so was null, at the least it ought only to be holden as for the space of nineteen years, which was the time communed and expressed in the back-bond. Upon the debate, the Ordinary in the outer-house ordained the writer and witnesses insert to be examined, and the setter of the tack himself, whether the tack was blank when it was delivered, and whether the communing was for nineteen years: The minister and witnesses insert, whose designations bear them to be his servants, depone affirmative. The cause now coming to be disputed, the defender alleged, That as to Holmains's right, the tack must stand valid, because whatsoever may be founded upon the back-bond against the tacksman subscriber thereof, or upon any communing contrary to the tack, the same cannot prejudge a singular successor contracting bona fide for an onerous cause; because the foresaid back-bond and communing being of the same date with the tack, is a most fraudulent contrivance, and could have no other intent or effect than to deceive a singular successor contracting bona fide; as the Lords did most justly find in the like case, where a bond being granted by one party to another, and he having granted an absolute discharge thereof of the same date, an assignee to the bond pursuing thereupon, and the debtor excepting upon the discharge, the Lords repelled the exception in respect of the fraud, that the discharge was absolute and of the same date with the bond*, so here there can be no just intent pretended that the tack should have been altered in the substantials by a back-bond, or that it should have been delivered blank in the endurance; for, though the tacksman might, contrary to his communing or his back-bond, have filled it up; yet the setter of the tack did evidently give the snare to the singular successor by delivering the tack of another date than was communed or blank; seeing he might and ought to have filled up the time of endurance in the blank before he delivered the same; neither can this blank be taken away by witnesses, who cannot prove the contrary of any substantial of the tack; much less can the oath of the pursuer or his author operate any thing in their own favours; nor the testimonies of witnesses who were the setter's servants; and, though they were taken ex officio, of course in the outer house, it is entire to the defender to allege that his tack cannot be taken away by witnesses. The pursuer answered, That his reason stood most relevant; but if any fraud was, it was in the tacksman, who contrary to the back-bond and agreement, filled up the tack; whereunto the setter being a stranger, not having been in Scotland since his youth, and being wholly ignorant of the forms of writs, was deceived by the tacksman; whose fraud is vitium reale and annuls his right, and all rights founded thereupon in consequence; whose bona fides in a voluntary act hath no effect, as it might have in payment or any other act to which the party might have been compelled; and not only the back-bond, but also the witnesses making it appear, that the tacksman had filled up the endurance unwarrantably contrary to the communing; the same ought not to be without effect, though ordinarily witnesses be not received to take away writ; neither can

* See Sect. 4. h. t.

Holmains pretend bona fides, seeing the endurance of the tack was extraordinary, and was filled up with another hand, and so in effect without witnessses. The pursuer answered, That though fraud might annul the tack as to the tacksman, yet our law extends the effect only to the partakers of the fraud, and not to contracters bona fide for an onerous cause; but especially where the granter of the tack was either in dolo in the contrivance with the tacksman, or at least in lata culpa, delivering a blank tack without any just reason, wherefore the same was not then filled up, and so gave the occasion to the tacksman to cheat the defender; who had no just ground to suspect the tack, knowing that the setter valued it not, and never intended to follow it, being a minister residing in Ireland, where tacks of longer endurance are ordinary; and for the filling up of the endurance with another hand, there is nothing more ordinary; and the expressing the writer of the body of the writ is sufficient, and the witnesses are presumed to have subscribed the writ as it was filled up; and any decision in the contrary would overthrow the most important writs in the kingdom. Likewise, the nineteen years in the back-bond is filled up with a several hand from the writer of the body.

The Lodds found the defence proponed for the singular successor relevant, and that the reason of reduction could have no effect against him, unless it were proven that he knew, and so were partaker of the fraud.

Stair, v. 2. p. 15. *** Gosford reports the same case:

In a reduction of a tack of the teinds of some lands belonging to Holmains, upon this reason. That the tack was granted to John Crichton, Holmains's author, and was blank the time of the subscription, as might appear by a back-bond of that same date, bearing, that albeit the tack was granted for payment of sixpence yearly; yet, that the said John, whensoever he attained possession, should pay L. 80 yearly; whereupon it was offered to be proven by the witnesses insert, that the tack was subscribed blank as to the years of endurance, which should have been filled up with 19 years only, whereas it did bear 81 years. It was answered for Holmains, That the reason was not relevant, because the tack being filled up with 81 years, as the endurance thereof, when he acquired right from the tacksman, any private back-bond granted to the pursuer could not take away the same, nor the depositions of the witnesses; otherwise it would open a door to all fraud and circumvention; upon which account, the Lords did find lately in a case between ———— and ————, that back-bonds of declarations made and subscribed the time of a disposition could not prejudge the same.

The Lords did assoilzie from the reason of reduction; and found, that the tack being subscribed and delivered blank, and entrusted to the tacksman to fill up the years of endurance, that he could never make use of any back-bond against a third person, who was in bona fide to acquire a right thereto.

Gosford, MS. No 411. p. 207.