 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom House of Lords Decisions |
||
|
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> William Duff of Braco, Mr. Leslie of Melrose, and Others v. The Right Honourable David Earl of Buchan [1725] UKHL Robertson_525 (15 April 1725) URL: http://www.bailii.org/uk/cases/UKHL/1725/Robertson_525.html Cite as: [1725] UKHL Robertson_525 |
||
[New search] [Printable PDF version] [Help]
Page: 525↓
(1725) Robertson 525
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 121.
Subject_Reduction Improbation. — Union. —
The defenders in a reduction improbation having objected to the pursuer's infeftment. which was taken at the Castle of Banff, by dispensation in a charter of 1625, that by a posterior charter that cattle was disjoined from the barony; the Court found that objection not relevant to hinder the taking of terms for production, reserving this matter after production: but their judgment is reversed.
The defenders made another objection, that the pursuer claimed under a charter to heirs male, whereas a subsequent charter, as they offered to prove, had been granted to heirs general. The Court gave the same judgment on this objection as on the former, but their judgment is also reversed:
And it is ordered, that in the further progress of the cause the Court do not oblige the appellants to take a term for production until the pursuer make out his title upon which he founds his suit.
Subject_Sasine. —
The Court having repelled an objection made to a sasine written tookways, that the witnesses had only signed the last page; the judgment is reversed.
In 1722 the respondent brought an action against the appellants, before the Court of Session, of reduction improbation, and declarator of the titles by which the appellants held certain lands, the fee of which the respondent claimed as vested in him. In this action the respondent stated, that in 1625, upon the resignation of Mary Countess of Buchan, and James Areskine, son of John Earl of Mar, her husband, a charter from the crown was granted to them of the estate of the family of Buchan, in life-rent, and to James Lord Auchterhouse, their son, and the heirs male of his body, whom sailing to the heirs male of their marriage, whom sailing to the heirs male of the said James Areskine the husband:
That James Lord Auchterhouse, then Earl of Buchan, when he succeeded to the estate, charged the same with several wadsets, granted divers trust-rights, and having contracted debts, his creditors obtained apprisings of great part of his estate for small and inconsiderable sums: and that the creditors, and others, having or pretending to have rights upon the said estate, entered into possession of a great part of it, and taking advantage of the difficulties in which the family was involved, continued in possession, though their debts were considerably overpaid by receipt of the rents and profits:
That this James Earl of Buchan died in 1664, and none of the heirs of the family made up titles to the estate, till it had devolved upon the respondent, and after the act 1695, c. 24. had been passed, allowing heirs to enter cum beneficio inventarii, but that the respondent having been beyond seas when the succession
Page: 526↓
The appellants at first contended, in this action, that the title produced by the respondent was not sufficient to entitle him to maintain the action, but that he should also produce the said charter 1625, under which he claimed, together with the act of parliament allowing him to serve heir cum beneficio inventarii. The Lord Ordinary, on the 8th of January 1724, “Repelled the objection and sustained the respondent's title:” and to this interlocutor his lordship adhered on the 28th of January and 4th of February following. The appellants having, however, obtained a stay of proceedings, on the 23d of June 1724, they were ordered to proceed in the cause.
They now brought forward two objections to the instrument of sasine, that the witnesses had only signed the last page, and that it was therefore void: and that it was also void, having been taken at the Castle of Banff, which was no part of the earldom of Buchan, nor of the lands claimed by the respondent; for though the castle in 1625 was part of the earldom, and sasine taken at the castle was then sufficient, yet it had been conveyed by Earl James (under whom the respondent claimed) to one Sharp, who in 1662 had procured a crown charter of the Castle of Banff and certain lands to him and his heirs, and who had ever since been in possession of the premises: they objected further that the respondent could have no title under the said charter 1625, by which, he stated, the estate had been limited to the heirs male of James Earl of Buchan, formerly James Lord Auchterhouse; for that by this charter a power was reserved to James Areskine, the father of Lord Auchterhouse, to fell all or any part of the said estate; and he, in 1636, conveyed all his estate to trustees for payment of debts, upon which they were duly infeft: and that after this James the father's death, the trustees entered into a contract with James then Earl of Buchan, formerly Lord Auchterhouse, for a reconveyance of the estate; and accordingly upon the marriage of this Earl James, a procuratory of resignation was executed by the trustees with his consent, upon which a crown charter was obtained in 1652, settling the laid lands and estate to the said James Earl of Buchan, and the heirs male of his then marriage, whom sailing to the heirs male of his body of any other marriage, whom sailing to the heirs female of his body, upon which charter sasine was duly taken and recorded; of which sasine
Page: 527↓
The respondent made answers upon these points, and the Lord Ordinary, on the 28th of November 1724, “Found the objection against the respondent's title, that though sasine is taken at the Castle of Banff, by virtue of a dispensation in his predecessor's charter, yet by a charter of a posterior date, and before his taking of the sasine, the said Castle of Banff was disjoined from the barony, not competent in this state of the process to hinder the taking of terms, reserving to the appellants to be heard thereupon after the production is satisfied; and repelled the objection that by a charter posterior to that whereby the estate stands provided to heirs male, the destination of succession was altered to heirs female, reserving to the appellants to be heard thereupon after production, in case it shall then appear, that their rights flow from these heirs female; and repelled the objection formerly taken to avisandum that each page of the sasine is not signed by the witnesses but only the last.” The appellants having reclaimed, the Court, on the 5th and 15th of January 1725, adhered to the said interlocutor of the Lord Ordinary, and assigned a term for production.
Entered, 28, Jan. 1724–5.
The appeal was brought from “several interlocutory sentences of the Lords of Session of the 8th and 28th of January, and 4th of February, the 23d of June and 28th of November 1724, and the 5th and 15th of January thereafter.”
Heads of the Appellant's Argument.
When objections were made to the respondent's title, a supposition that such title might be good was not a sufficient reason to decree the appellants to produce the several titles under which they claimed: it would, in their opinion, have been much more just, to have considered the objections made to the respondent's title in the first place; for if upon these points judgment were given for the appellants, there would be an end of this suit. To what purpose would it be for the appellants to enter into an expensive suit, and produce their title deeds, when it plainly appears from the charter 1652, which the appellants insisted upon, that the respondent, the pursuer in the Court below, has no title at all? That question ought therefore to have been determined first.
The Court of Session were so far of opinion, that the objections to the respondent's title were of weight, that they have reserved to the appellants the benefit of being heard upon them after the production is satisfied; but the appellants conceive that since the respondent is attempting as heir cum beneficio inventarii, upon a charter granted 100 years since, to disturb the possession of purchasers for full and valuable considerations, and who have been in quiet possession for 70 years, great care ought to have been taken, that the title under which the respondent claims should be
Page: 528↓
The argument against the respondent's sasine is a plain bar to the action, and puts an end to the cause: when that matter was fully laid before the Court, it ought to have been determined before any further proceedings were had, because, if well founded, it overturned the respondent's title.
If the estate in question be limited to the heirs general of Earl James, under whom the respondent claims, which the appellants offered to prove, the respondent has no interest, as he claims in the character of heir male. The right under which the respondent claims was cut off by the limitation to the heirs general contained in the charter 1652, none of whom are parties to this action. After the present action is disposed of, the appellants may be sued in another action by the heirs general; whereas all those inconveniences would have been obviated had the judges obliged the respondent to make out his title in the first place.
20 March 1723–4.
An action of a similar kind with the present was brought by the Earl of Caithness against the Earl of Breadalbane and others, in which the defenders made several objections to the then pursuer's title: the judges, without determining those points, directed the defenders to produce their title deeds, reserving to them, as in this case, the benefit of their objections after production: but upon appeal, this House “reversed the interlocutors complained of, and ordered that the Lords of Session, upon the further progress of the cause, should not oblige the appellants to take a further term for production, until the respondent should have made out his title, upon which he founded his suit.”
Heads of the Respondent's Argument.
Though the act of parliament, allowing sasines to be written bookways, founded on by the appellants, contains the proviso that the witnesses should sign every page; yet by a posterior act 1696, c. 15., it is enacted, that where any security or title deed is written bookways, it shall be signed by the witnesses on the last page only; and the respondent's sasine being a security, and signed according to the directions of the latter statute, the notary having signed each page, and the witnesses the last, in the same manner that almost all the sasines posterior to the said statute are signed, the objection was without any foundation.
It is the known right and prerogative of the crown to appoint one particular place for taking sasine, in lands, however discontiguous; and the Castle of Banff having been appointed the place at which sasine for the whole earldom of Buchan was to be taken, the proprietor's aliening, and the crown's of course granting the said lands to another person without declaring the union to be dissolved, did not defeat the effect of the prior appointment; and the respondent could not be seised in any other manner upon his retour to James Earl of Buchan, than agreeable to the directions of the
Page: 529↓
No such charter, as was suggested by the appellants, altering the settlement made in the year 1625, appeared, or was so much as pretended to be extant in the records: their allegation, therefore, of such charter could not be regarded, as being without any manner of proof. The copy of the sasine which the appellants gave in evidence afforded no proof at all, for it was no more than a copy; and though the principal sasine itself had been produced, yet it being no more than the assertion of a notary, without the charter, its foundation and warrant, it could signify nothing. If the appellants imagined they could produce such charter, or any other writing which could serve for their defence, the respondent was willing to agree that a term should be assigned them for that purpose, yet so as they should have the same term assigned for production of their rights called for. Besides, though such deed had been produced under which the heirs general might have claimed, as after the strictest search into the records none did appear; yet these heirs general being no parties to this action, having at no time claimed this estate, nor made any conveyances to the appellants, the appellants could not found any plea on such charter, nor force the respondent to debate the validity or import of it; because, should the respondent prevail, he might be again sued at the instance of these heirs general, so that he could have no advantage of a judgment in the present question.
The respondent conceives it is improper to take any notice here of the pretended long possession of the appellants, in consequence of their title deeds, if they any have, no evidence having been brought of such possession, or so much as offered or founded on in the Court below. Besides, length of possession upon redeemable rights can never bar the right of reversion, nor can it appear whether the rights of the appellants are subject to a right of reversion or are irredeemable, but by a discovery of their title deeds, which is the scope of the present action.
The case of the Earl of Caithness against the Earl of Breadalbane is no ways the same with the present. The Earl of Breadalbane and other appellants there pleaded, that the right under which the Earl of Caithness the respondent claimed, which was no more than an ancient apprising for a pretended debt of very small value, was prescribed, no possession having been had of any of the lands therein contained in 40 years after the date of it, and consequently that it was utterly void. That the 40 years were elapsed, appeared upon the face of Lord Caithness's title, and the only answer given was, that he said he could prove that several steps had been taken to interrupt that prescription. Whereas in the present case, the respondent, as heir male, being legally vested in this estate by the retour and sasine in his favour, the
Page: 530↓
The interlocutors appealed from are so plainly founded on the uniform practice of the Court below in the like cases, that the whole judges were unanimous in them, which never happens but in the clearest cases.
Judgment, 25 April 1725.
After hearing counsel, It is ordered and adjudged, that the several interlocutory sentences complained of in the appeal be reversed: And it is further ordered, that the Lords of Session in the further progress of this cause, do not oblige the appellants to take a term for production, until the respondent, the pursuer below, have made out his title upon which he founds his suit.
Counsel: For Appellants,
C. Wearg.
C. Talbot.
Will. Hamilton.
For Respondent,
P. Yorke.
Dun. Forbes.
Ch. Areskine.
On the point of the union, the interlocutor of the Court of Session here reversed, is stated as an existing precedent in the Dictionary, Vol. II. p. 496.
With regard to the witnesses signing only the first page of the sasine Lord Bankton B. 2. Tit. 3. § 40. rightly states that the judgment of the Court was reversed: Erskine on the contrary, B. 3. Tit. 2. § 16. mentions this as an existing decision.