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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Alexander Munro the younger of Auchinbowie v. Grizel Bruce of Riddoch [1721] UKHL Robertson_387 (17 June 1721) URL: http://www.bailii.org/uk/cases/UKHL/1721/Robertson_387.html Cite as: [1721] UKHL Robertson_387 |
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Page: 387↓
(1721) Robertson 387
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 86.
Subject_Vis et metus. —
A disposition is granted by a woman to her heir at law, reserving her own life-rent, and the courtesy of a future husband, and declaring that it should not affect the heirs of her own body, and is followed by a more formal disposition a few days afterwards, on which infeftment followed: the brings an action for reduction on the ground, that being under arrest at London at the suit of a creditor, her heir had refused to bail her, unless she executed the deed first mentioned, and the bailiff threatening to carry her to Newgate, she gave her consent, and executed the deed as soon as bail was granted, and before the left the spunging-house: The Court reduces the deed and all that followed thereon; but the judgment is reversed.
The respondent was proprietor of the estate of Riddoch and other lands in the county of Stirling, of considerable yearly value; and she was also possessed of a considerable personal estate. Of these estates, she had executed a voluntary and revocable settlement in favour of a person in Scotland, who was a distant relation, and to whom she had also granted powers to receive her rents.
Being in London in 1714, she was betrayed into a marriage with a person of the name of Colquhoun, who had been a serjeant
Page: 388↓
The appellant, who states himself to be heir at law to the respondent, mentions, that hearing of her misfortune, he went and visited her, and in consequence of an offer from him to do all he could to relieve her, a prosecution for bigamy was instituted against Colquhoun, in which the appellant was aiding to her both with his credit and his own personal services: That the respondent thereupon declared her intention to make a settlement of her estate upon the appellant and his heirs, sailing issue of her own body: That the factor in Scotland having declined to remit any money to the respondent, or to answer her bills, she incurred several debts; and in May 1715, as she and the appellant were in a coach together, she was arrested at the suit of one Cuerton an attorney: That the appellant procured bail for the respondent, and she was set at liberty accordingly; and the appellant paid all the expences of the respondent while she remained in the spunging-house: That the respondent proposed instantly to execute the deed in the appellant's favour which she formerly intended, and to put it out of her power afterwards to do deeds to his prejudice; and such deed was drawn and executed accordingly. But this first deed not being written upon stamped paper, a second deed was drawn by Sir David Dalrymple, then Lord Advocate; and this second deed, after she was admitted to bail and at her free liberty, was read over to her, approved of and executed in the presence of Henry Cunninghame Esq; a member of the House of Commons, Thomas Crawford of Lincoln's Inn, then attorney for the respondent, and Thomas Buchanan, clerk to Sir David Dalrymple; and she in the presence of these witnesses declared the said deed to be exactly according to her intentions, and that the executed the same freely and voluntarily: That by this deed, which was in terms of the former one, the respondent conveyed her real estate to the appellant, her heir at law, and the heirs of his body, whom sailing, to the respondent's heirs whatsoever, reserving her own life-rent of the premises, and with a power to give any husband she should marry the life-rent thereof; under a proviso that the issue of the respondent's body should not be prejudiced thereby, but that they should have full power and liberty to enjoy the same freely as if the said right had never been past; and thereupon the appellant was infeft: That after the execution of this deed the appellant continued about two months in London in perfect friendship with the respondent, assisted her in prosecuting the said Colquhoun, and furnished her with several sums of money for that purpose; and accordingly judgment was obtained against him, and he was burnt in the hand.
The respondent afterwards brought an action against the appellant before the Court of Session, to have the disposition set aside and declared void, on the ground that the same had been obtained by concussion, and that she had been compelled to execute the same vi et metu.
Page: 389↓
An act and commission being granted to examine witnesses in England, witnesses were accordingly examined, and it appeared by the evidence of two of the instrumentary witnesses, that the deed in question was all read over to the respondent, several clauses were read a second time, and she approved thereof and executed the same, and declared she did it voluntarily and willingly, and that she delivered the same to the appellant in their presence; all which was after the bail-bond given, the bailiff paid his fees, and she declared at liberty; that nothing of force or constraint was used, but every thing transacted according to her own directions, and with her approbation. The appellant's witnesses swore that she was in the bailiff's house at the time of executing the deed in question; that the appellant refused to procure her to be bailed, or to give her any money, unless she would execute the said deed; and that the bailiff threatened to carry her to Newgate, and that they believed the same was executed through fear. These depositions related solely to the deed first executed.
The Court, on the 8th of July 1720, having considered the state of the process, and writs produced, and testimonies of the witnesses aduced, and having advised the same with the debate, they, by a majority of one vote, “found the reason of reduction, viz. that the disposition quarrelled was elicited from the respondent by concussion is relevant and proved, and therefore reduced the said disposition, with all that had followed thereupon:” and to this interlocutor the Court adhered on the 13th of January 1721.
Entered, 18 Feb. 1720–1.
The appeal was brought from “an interlocutory sentence or decree of the Lords of Session in Scotland of the 8th of July 1720, whereby they found that the disposition quarrelled was elicited from the respondent by concussion, was relevant and proved, and therefore reduced the said disposition with all that followed thereupon; and also from another interlocutor of the said Lords, of the 13th of January 1721, affirming the former interlocutor.”
Heads of the Appellant's Argument.
There is no concussion proved in this case; for where a deed is questioned upon presence of concussion, one of two things ought to be proved; either that the restraint and compulsion were imposed by the person to whom the deed was granted; or that, though it were imposed by another person, yet it was in view and in order to extort the deed: but neither of these is found in this case. Though the respondent was in custody of a bailiff, yet that was not at the suit, nor by the procurement of the appellant, the grantee. It is not attempted to be proved that the appellant was in any concert with the person who arrested her, or that he ever saw him; and the bailiff himself swears, that it was at the suit of one Cuerton; that he never saw nor knew any thing of the appellant, till he saw him in the coach with the respondent when the was arrested. There is not the least presence, that the respondent
Page: 390↓
The most that was pretended against the appellant was, that he would not interpose to relieve her from restraint and procure her bail, unless such deed was granted. Surely this was no concussion in the appellant, in order to have a deed executed that his natural right of succession should not be set aside by posterior, rash and unnecessary deeds; nor was it extortion in the appellant, that he would not interpose his credit for a person of a pretty inconstant temper, unless she would give some reasonable security not to evacuate the appellant's right of succession. There can be no extortion, but where there is some positive fact, done by the extorter, imposing the fear: but refusing to do, to interpose credit, or grant any other favour, was no extortion.
The deed itself was a rational deed, being a settlement of the estate upon the appellant her right heir, upon failure of issue of her own body: the life-rent of the whole was reserved to her; her future husband was safe as to his courtesy, and the issue of her body as to the estate. So that the only bar put upon the respondent was a stop to importunities upon her to settle the estate from the right heir, and prevent her from disinheriting the appellant.
This deed was executed willingly and freely, and so the respondent declared to the two instrumentary witnesses, and likewise to the gentleman who was bail for her. Had she been under any force, it is most probable she would then have declared it, that gentlemen of character, as they were, might have relieved her from that force. But in fact, she was at liberty when the when the deed was executed; the bail-bond was given, the bailiff paid his fees, and she declared to be at liberty. So, had she been under any constraint, that was at an end before the deed was signed.
All the depositions of the witnesses for the respondent respecting the appellant's refusing his assistance to her, unless she executed a deed, relate to the first deed, and not to the second, which is the deed in question. And, supposing and undue methods had been used to procure the first (which is positively denied,) there is no inference that it was so with regard to the second, nor is there any proof of it.
(The respondent's case contains no argument whatever on her part; she merely states the circumstances of the case, with regard to the first deed.)
Judgment, 17 May 1721.
After hearing counsel, It is ordered and adjudged, that the said interlocutor of the 8th of July 1720, and the said interlocutor of the 13th of January in affirmance thereof, be reversed.
Counsel: For Appellant,
Ro. Dundas.
Tho. Kennedy.
Will. Hamilton.
For Respondent,
Rob. Raymond.
C. Talbot.
Page: 391↓
In the appellant's case, several interlocutors of the Court are stated as to the admissibility of female witnesses, to other facts than those within doors, and in their own houses; and as to the allowing of objections to the characters of witnesses: he also uses argument thereon, but these formed no part of the judgment appealed from.
