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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Birrell v. Beveridge and Steedman [1867] ScotLR 5_154_1 (10 January 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0154_1.html Cite as: [1867] SLR 5_154_1, [1867] ScotLR 5_154_1 |
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Page: 154↓
Circumstances in which a claim of jus quæsitum tertio repelled.
Birrell brought this action of reduction and declarator against Beveridge and Steedman, in the following circumstances:—On 18th May 1865, Beveridge and Steedman entered into missives of sale of a house belonging to Steedman, and occupied partly by Birrell. The missives contained a stipulation that Birrell was to get a seven years' lease of the premises, and “he will have power to redeem the property at the end of the lease at the same price.” The missive was not holograph of Steedman. Shortly after, the intention of the purchaser and seller was altered, and instructions were given that the deed of conveyance, when executed, should contain a provision of lease and power of redemption in favour of Steedman, instead of Birrell. The deed was executed on 24th May. In July 1865, Steedman discharged his right of redemption for a money payment. Birrell now sought reduction of the discharge of the right of redemption granted by Steedman to Beveridge, and declarator that he was entitled to enforce the stipulation in his favour contained in the missive of 18th May. In support of this claim he produced missives, bearing to be dated 10th May, by which Steedman sold the property to him. These last missives were holograph of the parties. The defenders contended (1) that the missives of 10th May were not executed of the date they bore, and (2) that the missives of 18th May were improbative.
A proof was taken.
The Lord Ordinary ( Ormidale) found that Birrell had failed to prove that Beveridge was, on 18th May, aware that the subjects had been previously sold to Birrell; but found it proved that Beveridge, soon after the 18th, and before he and Steedman arranged the alteration on the agreement, knew that a copy of the missives of 18th May had been given to Birrell, and Birrell was thus made aware of the condition therein in his favour; and held, in these circumstances, that, in point of law, the pursuer Birrell had a right conferred on him by the missives of 18th May, which could not be defeated by any arrangement to which Birrell did not give his consent; and therefore sustained the claims of the pursuer in the present action.
The defenders reclaimed.
Lord Advocate ( Gordon) and Hall for them.
Gifford and Scott, for pursuer, in reply.
Lord President, founding his judgment upon the documentary evidence, held that Beveridge was not proved to have had any knowledge of a previous onerous claim on the part of Birrell; and further, that the pursuer had failed to prove the date of the holograph missives of 18th May.
Interlocutor reversed, and defenders assoilzed.
Solicitors: Agents for Pursuer— D. Crawford and J. Y. Guthrie, S.S.C.
Agents for Defenders— Watt & Marwick, S.S.C.