Re Ruthven's Trusts

• Jurisdiction: Ireland
• Judgment Date: 18 January 1906
• Date: 18 January 1906
• Court: Court of Appeal (Ireland)

In re Ruthven's Trusts (1).

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1906.

Trustee Act, 1903 (56 & 67 Vict. c. 61, section 26 (6) — Constructive trustee — Contract to convey real estate — Refusal to execute conveyance — Vesting order.

Held (reversing the decision of Barton, J.), that A was a trustee within section 26 of the Trustee Act of 1893, and that a vesting order should be made.

In, and prior to, 1892 Lord Ruthven was seised in fee of the lands of Harperstown, in the county of Wexford, subject to certain charges and incumbrances. He was indebted to a considerable extent, and, amongst other debts, he owed £11,000 to his eldest son, the Master of Ruthven, and £9000 to other creditors; the said Lord Ruthven, having borrowed, with the consent of the Master of Ruthven, various sums of money on the security of a fund of £30,000, being the balance of the purchase-money of an entailed estate of freehold in Perthshire, in Scotland, of which Lord

Ruthven was first heir of entail, and the Master of Ruthven was the next heir of entail. Lord Ruthven asked his son to break the entail, which he agreed to do upon the terms mentioned in the following documents:—

By power of attorney, dated the 16th January, 1892, Lord Ruthven appointed George Auldjo Jamieson, whom failing Charles J. G. Paterson, his attorney, to enter into agreements, and to do everything in the premises to the same effect as he could himself, and to grant, subscribe, enter into, and deliver all writs, deeds, and other documents of every kind necessary or proper for the due execution of any of the powers therein given.

By agreement, dated the 30th March, and the 11th April, 1892 (1) (registered in the books of Council and Session, in Scotland, on the 7th June, 1892), made between the said George Auldjo Jamieson, as attorney of Lord Ruthven, and James Haldane, of the first part, and the Master of Ruthven of the second part, the Master of Ruthven agreed to disentail the £30,000 on the following conditions:—That the Master of Ruthven was to forego payment of the £11,000; that a sum of £9000 should be applied in payment of Lord Ruthven's debts; that a sum of £1800 should be set apart, as a balance, to complete a fund to provide portions for younger children; that an annuity of £1000 a year should be provided for Lord Ruthven and Lady Ruthven, and for the survivor; that a sum of £6000 should be paid to the Master of Ruthven in certain events therein named, and that the residue of the fund should be paid to the Master of Ruthven. For these considerations Lord Ruthven was to convey the lands of Harperstown, in the county of Wexford, to George Auldjo Jamieson (and failing him by death or resignation, to Charles J. G. Paterson, in his room) and to Archibald R. C. Pitman, as trustees, with extensive powers of management, and also a power of sale.

A declaration of trust was granted by the trustees under the said agreement, with consent and concurrence of Lord and Lady Ruthven, and of the Master of Ruthven, dated the 18th and 24th August, the 15th and 16th September, and the 3rd and 5th October, 1892 (1), whereby the purposes for which the above balance

of the £30,000 fund, and a certain mortgage for £6989 (being the last mortgage on Harperstown), and the reversion of the Harperstown estate, were held were set forth. These purposes were the same as those stated in the above agreement, and this declaration of trust was signed by Lord Ruthven on the 3rd of October, 1892.

George Auldjo Jamieson died on the 18th July, 1900.

The terms of the agreement had been carried out, except the conveyance of Harperstown; the £9000 had been applied in payment of Lord Ruthven's debts; the annuity for Lord and Lady Ruthven had been secured; the younger children's portion had been provided for; and the balance of the £30,000, and the mortgage for £6989 (being the last mortgage on Harperstown) had been received by the trustees.

The trustees of the agreement having resolved to sell the Harperstown estate to the tenants, through the Irish Land Purchase Acts, and having found it necessary for that purpose to get in the legal estate in Harperstown, which was vested in Lord Ruthven, required him to convey the same to them, which lie refused to do. In 1905 the trustees, and the Master of Ruthven, raised a summons in the Court of Session in Edinburgh, against Lord Ruthven, for a decree that Lord Ruthven should be ordered to execute the conveyance, and on the 27th March, 1905, Lord Stormonth Darling, by interlocutor, found that the defender was bound to execute to the trustees a conveyance of Harperstown. On account of a technical mistake in the decree, the pursuers reclaimed to the Inner Division, and on the 26th of May, 1905, the Inner Division recalled the interlocutor, and remitted the cause to the Lord Ordinary to proceed therein and discern, and on the 30th May, 1905, Lord Johnston, the Lord Ordinary, ordered Lord Ruthven to execute and deliver to the trustees a conveyance of Harperstown within fifteen days. An application was made on the 18th July, 1905, to the Court in Scotland for an order, under its general jurisdiction, directing an officer of the Court to execute a conveyance in the name of Lord Ruthven, but Lord Johnston held that there was no jurisdiction to make such order.

Lord Ruthven still refused to execute the conveyance; and as the Trustee Act, 1893, did not apply to Scotland, and the lands were situate in Ireland, the Master of Ruthven, and the trustees of the agreement, Charles J. G. Paterson and Archibald R. C. Pitman, applied for an order, under section 26 of the Trustee Act, 1893, that the estate of Lord Ruthven in the lands of Harperstown should vest in the trustees on the trusts of the agreement of the 30th March, 1892, and of the declaration of trust made in conformity therewith.

The case came before Barton, J., on the 18th November, 1905, when his Lordship refused the application, and the Master of Ruthven and the trustees appealed.

H. D. Conner, K.C., and Jefferson, for the appellants:—

We submit that Lord Ruthven is a trustee within sect. 26 of the Trustee Act of 1893. If the purchase-money of a property has been paid to the vendor in his lifetime, he becomes a trustee of the legal estate: Re Cuming(1). Where a contract is executed, the Court will make a vesting order under the Trustee Act of 1850: Re Bradley's Settled Estate (2). Where a decree for specific performance would be made as a matter of course, the Court will make a vesting order: Re Pagani (3); Re Beaufort's Will (4). Re Carpenter (5) and Re Colling (6) do not apply, because there was no written contract in those cases; and whether the heir was bound, was a question which could not be decided without a suit for specific performance.

G. N. Oulton, K.C. (with him The Right Hon. J. H. Campbell, K.C., and A. C. Meredith), for Lord Ruthven:—

This case falls within sect. 31 of the Trustee Act, 1893, and not within sect. 26. Sect. 26 only applies to cases of express trusts. Lord Ruthven is not a trustee, and the Court will not make a vesting order unless a decree for specific performance has been pronounced. In cases relating to real estate the vendor, or his representative, cannot be declared a trustee, unless the right to specific performance has been...