Newton v. Newton [1922] ScotLR 6 (26 October 1922)

Newton v. Newton [1922] ScotLR 6 (26 October 1922)

The action was one of declarator of trust, and under Act 1696, cap. 25, proof of trust must be by writ or oath of the alleged trustee. The defender's averment of donation did not shift the burden of proof or entitle the pursuer to parole evidence. The pursuer, alleging trust, bore the burden of proof, and the statutory restriction on mode of proof applied. The interlocutor allowing proof at large was recalled, and proof was restricted to the writ or oath of the defender.

Citation
[1922] ScotLR 6
Parties
Pursuer: James Martin Newton; Defender: Mrs Agnes Money or Newton
Jurisdiction
Scotland
Judgment Date
26 October 1922
Procedural Posture
Civil / Appeal (reclaiming Motion) From Interlocutor of Lord Ordinary
Outcome
interlocutor of Lord Ordinary recalled; defender's fourth plea-in-law sustained; case remitted for proof restricted to writ or oath of defender
Legal Topics
Declarator of Trust, Donation, Burden of Proof, Mode of Proof, Act 1696 Cap. 25, Marriage and Property, Delivery of Title Deeds
Trusts Property Law Family Law Declarator of Trust Donation Burden of Proof Mode of Proof Act 1696 Cap. 25 +2 more

Case Brief

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Parties

James Martin Newton

Pursuer

Mrs Agnes Money or Newton

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Interlocutor of Lord Ordinary

Legal Issues

  1. 1 Whether property conveyed to a fiancée in contemplation of marriage is held in trust for the purchaser or as an absolute gift
  2. 2 Whether proof of trust can be led by parole evidence or is restricted to writ or oath under Act 1696, cap. 25
  3. 3 On whom lies the burden of proof when donation is averred and denied

Ratio Decidendi

The action was one of declarator of trust, and under Act 1696, cap. 25, proof of trust must be by writ or oath of the alleged trustee. The defender's averment of donation did not shift the burden of proof or entitle the pursuer to parole evidence. The pursuer, alleging trust, bore the burden of proof, and the statutory restriction on mode of proof applied. The interlocutor allowing proof at large was recalled, and proof was restricted to the writ or oath of the defender.

Court Disposition

interlocutor of Lord Ordinary recalled; defender's fourth plea-in-law sustained; case remitted for proof restricted to writ or oath of defender

Orders

  • Proof restricted to writ or oath of the defender
  • Case remitted to Lord Ordinary for further procedure