Scottish Court of Session Decisions

This was an action raised by Charles Stewart, Esq., of Ardsheal, Argyllshire, against Robert Tennant, Esq., of Ballachelish, and others, to have it found and declared that the pursuer has good and undoubted right to sell the estate of Ardsheal, and to have the defender ordained to pay the price he has by minute of agreement with the pursuer consented to give therefor. The defender demurred to complete the transaction and pay the stipulated price, on the ground that the pursuer's right over the estate was limited, and certain interests in the estate had been created by deeds executed by his grandfather and his father. It appeared that Duncan Stewart of Ardsheal, the pursuer's grandfather, by last will and testament (in the English form) dated 9th August 1792, made a settlement of his whole estate, both real and personal. His personal estate he gave and bequeathed to and among all his children equally, share and share alike, in the terms and under the conditions therein mentioned; and by the same deed he further gave and devised his lands and estate of Ardsheal and other lands in Argyllshire, held by him in fee-simple, to trustees for the uses and purposes, and upon the trusts therein expressed and declared, with a direction to such trustees from time to time to nominate and appoint a new trustee or trustees in

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room of any of their number who might die or refuse to act, so that the number of trustees should always be kept or filled up to the number of three. The testator died about a year after the date of this deed, survived by his widow and a numerous family of children. This will having been framed as aforesaid in the English form, was ineffectual and inoperative so far as it purported to convey or to constitute a trust of the Scotch heritable estate, in respect that it did not contain the proper technical words of conveyance, and was neither executed nor authenticated in the manner required by the law of Scotland. On the testator's death, however, his eldest son and heir, Charles Stewart, did not attempt to challenge or impugn the validity of the will, or the settlement of the heritage thereby made, but on 4th August 1794 he voluntarily executed a disposition in the Scotch form, disponing, conveying, and making over the lands of Ardsheal and others to and in favour of the testamentary trustees, and their heirs and assigns upon trust, for the uses and purposes expressed in the will; and in the narrative of the disposition he specially set forth, as the consideration or cause of granting it, that the settlement made by his deceased father “does not contain procuratory of resignation, precept of sasine, or other clauses necessary to enable the said trustees to make up proper feudal titles to the lands and estates thereby conveyed.” In order to give efficacy to this deed, Charles Stewart at the same time completed regular feudal titles to the estate in his own person, in fee-simple, as his father's heir-at-law.

The trustees having taken infeftment on the supplementary disposition thus granted in their favour, entered into possession of Ardsheal and the other lands, and continued to possess and manage the same until the death of Mrs Stewart, the testator's widow, which happened in the year 1804. Though Mrs Stewart was herself a trustee, no new trustee was named to supply her place in the trust, nor were any new trustees ever assumed or appointed by the original trustees, or the survivors or survivor of them, in terms of the direction to that effect contained in the will, and the last survivor died so long ago as 6th February 1821.

Immediately after the death of the widow (all the provisions in favour of the younger children being by that time paid or provided for), the said Charles Stewart, the testator's eldest son and heir, and who had made up titles in that character, took possession of the estate, and was thenceforth allowed, without interruption or objection from any quarter, to occupy and possess it, and receive the rents, till the year 1844, when he died.

On the death of the said Charles Stewart he was succeeded by his only son, also named Charles, the present proprietor, who is the grandson and nearest and lawful heir-male of the body of the testator. This last-mentioned Charles Stewart completed titles connected with the investitures of the property which had been established in his father's person. He was confirmed by the Crown in the superiority of the estates which his father had acquired in 1815 from the Duke of Argyll. He further took certain proceedings in the Court of Session in Scotland by way of adjudication against the heirs of the deceased trustees of the will, the result of which proceedings was, that the lands and estate of Ardsheal and others were on 17th November 1846 adjudged from the said heirs, and decerned and declared to belong heritably and irredeemably to him, the said Charles Stewart, and the heirs-male of his body, whom failing, the other heirs therein specified—these being the whole existing heirs and representatives of the several beneficiaries under the said will of Duncan Stewart, according to the destination, and in the order in which they were by that will called to the succession of the estate. Finally, the said Charles Stewart, having completed titles under the decree so obtained by him, consolidated the property with the superiority by granting to himself a disposition of said lands, followed by an instrument of resignation ad reman entiam.

Being thus formally, and, as he had no doubt conceived effectually, vested in the estate in fee-simple, Mr Stewart, in 1865, agreed with the defender, Mr Tennant, for a sale of the estate. The defender agreed to purchase, but was doubtful of the pursuer's title.

For the purpose of trying this question, and having the true extent of his right judicially ascertained, Mr Stewart raised this action, calling as defenders the said Robert Tennant, the beneficiaries under the will, and the heir of the last survivor of the trustees, and concluding to have it found and declared that he, the pursuer, had a good and undoubted right and title to sell the lands and estate of Ardsheal, and to grant a valid and effectual disposition of the said lands and estate to the said Robert Tennant, who had purchased the same from him.

Defences to this summons were lodged on the part of Mr John Stewart, barrister-at-law, grandson of the testator, and the next heir entitled to succeed under the limitations of the will, assuming those limitations to be still in force and capable of taking effect.

There was a cross action at the instance of the defender, Mr Tennant, against the pursuer, brought in the form of a suspension of a threatened charge by the pursuer for payment of £33,000, the agreed on price of the estate. In this process the Lord Ordinary had, on 22d February last, pronounced an interlocutor repelling the reasons of suspension, and finding the letters and charge orderly proceeded. In the note to his interlocutor his Lordship said:—“The question depends very much upon whether the trust is still to be held as existing to the effect of creating an objection as in a question with the complainer as purchaser of the lands in question to the title which the charger has it in his power to give, or whether the trust must not be held as entirely at an end, or at least entirely obviated in regard to any questions with the complainer in consequence of having, so far as it ever could have had, any effect, been struck at by the negative prescription, while another adverse title (being that now founded on by the charger) stands fortified by the positive prescription.

It is important to notice that the complainer does not aver there has been any possession of the lands in question by any trustees under the trust title for the last sixty years. It is clear, on the contrary, that in point of fact the possession since 1803 has been by Charles Stewart, the charger's father, or by others for him till his death in 1844, and subsequently by the charger himself.

The inquiry which then suggests itself is—Under what description of title has such possession been had? Was it a title which, in its nature and terms was calculated to keep alive the trust of 1794 and the interests thereby created? Or was it a title which excludes the trust interests, and is now perfectly good and unobjectionable as in any question

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at least with a purchaser of or singular successor in the lands?

Now, first in regard to these questions, it has to be kept in view that Charles Stewart, the charger's father, made up his title to the lands by charter and sasine in 1794. It is true that a title flowing from Charles Stewart was also made up in 1794 in favour of the trustees, but while they have had no possession under either that or any other title since 1803, Charles Stewart and his son, the charger, have, under their individual titles, successively possessed the the lands in question fully and uninterruptedly since that date.

In this state of matters, and supposing there had been nothing more in the case, there could, the Lord Ordinary thinks, be no reasonable ground for doubting that the charger's title, fortified as it is by the positive prescription, is complete and unobjectionable.

Nor does the Lord Ordinary think that the trust title has been saved from the operation of the negative prescription by the circumstance of the disposition in favour of the trustees in 1794 having been granted by Charles Stewart, who is now represented by the charger, or the circumstance that Charles Stewart had himself a substantial interest under the trust; for while the possession which was had under the trust-title did not extend to more than about nine or ten years at most, the possession which followed (extending to upwards of sixty years) was under a different title altogether—which not only did not include the objects of the trust, but was adverse to and exclusive of them. The case of Ogilvie v. Erskine, 26th May 1837, 15 S. 1028, cited and chiefly relied on by the complainer in regard to this point, appears to the Lord Ordinary to be inapplicable, for there the two titles in the same individual who possessed were equally unlimited, whereas in the present case there was only one title in Charles Stewart, without any limitation or burden whatever, while the other title was not in him, but in a set of trustees under limitations and conditions and for behoof of others as well as Charles Stewart. The opinions of the judges in the case of Waddell v. Pollock and Others, 19th June 1828, 6 S. 999, illustrate the distinction. The Lord Ordinary therefore holds that not only has the positive prescription run on the charger's individual title, but that the trust title and all interests under it have been cut off and extinguished by the negative prescription on the principles recognised and given effect to in many cases, and among others in the cases of Kinloch and Others v. Rocheid, 27th May 1800, M., “Prescription” App. Nos. 4 and 7; Paul v. Reid, 8th February 1814, F.C.; and Barnes and Others v. Hill or Taitand Others, 5th March 1857, 19 D. 626.

The superiority title made up by the respondent's father in 1815 is also important, and if not sufficient in itself, with the possession of more than forty years which has followed upon it, is at least strongly confirmatory of that which the charger otherwise has under and by the terms of that title. Although made up more immediately with reference to the superiority, the plenum dominium quoad lands and superiority was and must be held to be carried. Robertson v. Duke of Atholl, 16th February 1808, Hume 463, and Wilson v. Pollock, 29th November 1839, 2 D. 159.

The proceedings taken and titles made up by the charger himself in 1845, after the succession had opened to him through the death of his father, are likewise, in the view the Lord Ordinary takes of them, corroborative and confirmative of the charger's title otherwise, for he cannot concur in the suggestion which was made on the part of the complainer that these proceedings and titles must be taken as a recognition of the trust, and are therefore inconsistent with the contention of the charger that it had been then or has been yet cut off by the negative prescription. It appears to the Lord Ordinary to be a conclusive answer to any such view that the proceedings and titles referred to were taken and expede plainly and manifestly for the purpose of putting an end to the form of any feudal trust-title, and merging such title solely and exclusively in the individual title of Charles Stewart. Even if it could be held that there was by the proceedings referred to some recognition (with whatever object) of the trust, the Lord Ordinary cannot see how, in any sound view, the interests which were created, or might be supposed to have been created by the trust not having been in any way or anywhere made real burdens or fenced by irritant and resolutive clauses, can, in the circumstances, come into collision or competition with the complainer as a purchaser of and singular successor in the lands in question under the title which the charger is ready to give him.”

The suspender reclaimed. The Lord Ordinary then made avizandum with the declarator to the First Division in order that both processes might be considered and disposed of together.