(1713) Robertson 91
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Subject_Jus Exigendi. —
A Lady's jointure being secured on certain heritable debts but no infeftment taken, the husband's estate is forfeited during the Usurpation, but being afterwards restored to his heir, reserving the claims of the widow and others, and ordering those to refund, who had received grants out of the estate; the assignee of the widow's executrix had no jus exigendi of the sums received by these grants.
Subject_Forfeiture under Cromwell's Usurpution.—
The Earl of Forth, and Bramford being forfeited, and his estate seized, a bona fide creditor of the then government, is paid his debt by a grant out of the Earl's estate: on the restoration, the Court of Session found that the heir of such creditor was obliged to refund, but their judgment was reversed in the parliament of Scotland.
This last head is only mentioned incidentally but not decided in this case.
Sir Patrick Ruthven, Knight, afterwards Earl of Forth and Bramford, by deed bearing date the 29th of March 1637, in consideration of the great love and affection he bore to Dame Clara Barnard his then wife, and for her better provision and maintenance in the kingdom of Scotland, where she was a stranger, settled an annuity of 2000 merks Scots, per annum, on his Said lady for her life payable out of his real and personal estate, at the terms whitsunday and martinmas by equal portions; the first payment thereof to commence at such of the said terms as should happen next after his decease; and for the better Securing the payment thereof, he did by the same deed assign to his said lady, so much of the interest of the sum of 110,000 merks due to him by the Earl of Erroll, and of the sum of 50,000 merks due by the Earl of Southesk, for which he had heritable Security, over their respective estates, as would satisfy the said annuity. This assignment to Lady Ruthven never was completed by infeftment in her favour.
The said Earl of Forth, and Bramford in 1645, was declared to be forfeited by the then government, for his adherence to the royal cause, and his estates were seized into their hands, several gifts were made by them out of the same to different persons, and in particular one of 23,036 merks, to Sir Alexander Hope of Kerse, the respondent's grandfather, which he received out of the said debt due by the Earl of Erroll.
The Earl of Forth, and Bramford died under the said forfeiture in 1651, leaving the Countess his widow, and one daughter the Lady Jane Ruthven, afterwards married to the Lord Forrester, surviving him. In 1661 an act of parliament was passed, rescinding and annulling the said forfeiture, to the end the heirs and executors of the said Earl, might enjoy all such estate as belonged to him, as if no forfeiture had been. This act was opposed in the extracting and execution thereof, by Sir Alexander Hope and others, who had intrometted with the estate of the said Earl, and such extracting and execution were suspended by several acts of parliament for several sessions following (a), but on the 20th of August 1670, another act of parliament was passed, whereby the said act rescissory was ordained to be extracted; which was accordingly done.
An agreement was soon after entered into between the Countess of Forth and Bramford, and the Lord Forrester and his Lady, for an equal division of the said Earl's estate between them. But a representation being made to parliament in 1672 by Lord and Lady Forrester and Edward Ruthven their son, stating that they had been surprised into the said agreement, another act was passed, whereby his Majesty and estates of parliament declared their intention to have been, that for supporting the honour of the said Earl's family, he the said Edward Ruthven, the son of the Lord and Lady Forrester, should be entitled to the whole estate of the said late Earl; and therefore the agreement was thereby rescinded and made void, decreeing the said Earl's estate to belong entirely to the said Edward Ruthven, reserving a life-rent of the half thereof to Lord and Lady Forrester; and saving to the said Countess any right of terce due to her as relict, or any provision in her favour by contract of marriage with her said husband, and any action competent to her for such sums as she had expended profitably for behoof of the said Lord Forrester or his Lady.
An action was afterwards brought before the Court of Session against Sir Alexander Hope the respondent's father, for the said 23,036 merks, received as before mentioned, with interest for the same
(b). In this action a decree was made on the 15th of November 1672, decerning Sir Alexander Hope, the respondent's father, to make payment of she said sum of 23,036 merks and 14,000
l. Scots of interest for the same, to that time, with interest
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a) These expressions shew that act of parliament of that nature were considered in Scotland, at that period, only in the nature of deciees. (
b) Stair's Decisions, 9th January 1672. Sir Geo. Mackenzie's Works, vel.i
pleadings, p. 52. No.8, folio edit.
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( a) These expressions shew that act of parliament of that nature were considered in Scotland, at that period, only in the nature of deciees.
( b) Stair's Decisions, 9th January 1672. Sir Geo. Mackenzie's Works, vel.i pleadings, p. 52. No.8, folio edit.
In 1690 the respondent brought his appeal before the parliament of Scotland (according to the method then practised,) against the said decrees of 1672 and 1677, upon the ground that his father had been a bona side creditor to the usurping government and that he had received the said sum as payment of a debt, and not as a gratuity and that though the act of parliament did appoint restitution to be made by all such as had received any of the said sums of money, though even by warrant from the government, yet that was to be understood of such only who had received the same gratuitously, and not of such as were creditors who were not concerned out of what fund the government paid them; and in this case the money was paid to the curators of the respondent's father when a minor. This matter having been Several times under the consideration of the Said parliament, they on the 12th of July 1695, remitted the same to the Court of Session to review the Said decrees, and determine finally therein. The cause was heard Several times before the Lords of Session, and on the 18th of February 1697 (a), the Court Sustained the reasons of reduction against the decrees of Session obtained in 1672 and 1677, and reduced the same particularly upon this ground, that in the Said decrees this defence was repelled, that qui suum recipit conditione non tenetur, and that the respondent's father being creditor to the goverment bona fide for the time for onerous causes, what he had received was for payment of his own debt by warrant and order from the government then having authority, so that in effect it was the government who was receiver and not the respondent, who was not bound to take notice out of what funds he got his payment. And afterwards the Court, on the 16th of February 1698, adhered to their former interlocutor, and assoilzied the respondent from any further payment of the sums craved by him to be reduced, than what was already paid, and reduced the foresaid decrees as to the Surplus, without prejudice to the respondent to insist for repetition of what he had paid.
The Countess of Forth and Bramford executed a testament on the 21st of August 1676, in which she appointed Janet Urrie her executrix, and died in August 1679. Janet Urrie having confirmed the said testament, did, by a deed on the 3d of May 1680, for the causes therein Specified, assign to the appellant all her right and title to she arrears of the Countefs's annuity, and in and to
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Vide Fountainhall of that date.
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( a) Vide Fountainhall of that date.
In November 1713 the appellant commenced his action against the respondent, before the Court of Session, for payment of the said Sum of 23,036 merks, and 14,000 l. Scots as the interest thereof to the 15th of November 1672, with all interest that had grown due since that time, or so much thereof as might be Sufficient to Satisfy and pay the appellant what was due to him in respect of the said annuity, amounting in the whole to the sum of 64,000 merks and upwards. To this action the respondent appeared and made defences; and the Court, by interlocutor on the 16th of February 1714, “Found that by the act of parliament and decree of the Lords in 1672, Edward Ruthven had the jus exigendi of the Sums due by the respondent.”
Entered, 12 April 1714.
The appeal was brought from “an interlocutor or decree of the Lords of Council and Session of the 16th of February 1714.”
Heads of the Appellant's Argument.
The first action against the respondent's father was brought by the Countess; and in that action Edward Ruthven, appeared by his curator for his interest.
Both in the act of parliament, and the decree subsequent thereto, the Countess's right of terce or by contract of marriage was sufficiently reserved to her; so that her bond of provision, which came in place of the marriage contract, was thereby rather strengthened than weakened. Her legal provision, therefore, was supported by the saving clause, which could bear no other interpretation than the reserving and establishing those rights in their original force, and was wholly useless in any other sense; for the Countess, without such reservation, might have sued the said Edward Ruthven, and all others who had intromitted with the said Earl's estate. The said decree, too, was only relative to and to be explained by the said act in 1672; by which, though the said Edward Ruthven was preferred to the sums, to which the Countess before that act had right by her contract, and to the fee of the whole sums, and the right of exacting payment thereof established in his person both by the act and decree; yet that right was expressly burdened with the reservation in the Countess's favour. And more especially as to the interest of the sums in question, received by the respondent's predecessor, there can be no doubt of her preference, for the same had been particularly assigned to her by her said deed of provision, and were reserved to her by the said act and decree. The preference in the decree being only in respect of the principal sum, ought not to prejudice her as to the interest thereof.
Heads of the Respondent's Argument.
The Countess did not produce any marriage contract, or claim her terce against Lord and Lady Forrester, Mr. Ruthven their son, or the respondent, though she lived till 1680. Neither did
The act of parliament and decree of the Court of Session in 1672 do expressly ordain the right of all sums of money and estate belonging to the Earl of Bramford, or that might be recovered by virtue of the act of restitution, to be paid to the said Edward Ruthven, as the party having the best right thereto, without distinction of principal or interest. In the decree of 1672 the respondent's father is decreed to pay, not only the principal Sum of 23,036 merks, but likewise the interest, then amounting to 14000 l. Scots, and the interest that should afterwards grow due. And by the decree in 1677 the payments made by the respondent and his father to the said Edward Ruthven are expressly imputed to the payment of the interest, and not of the principal sum, which could never have been done, if they had intended by the reservation in the Countess's favour to entitle her to sue for and receive the interest equivalent to her annuity. But the decree in 1677, notwithstanding the reservation in favour of the Lord and Lady Forrester of the liferent of half of the sums, directed the respondent's father to pay the principal and interest entirely to the said Edward Ruthven. The reservation in their favour could afford them action against Edward Ruthven; and by the same reason the reservation in favour of the Countess could not entitle her to an action against the respondent for the interest; but he being obliged to pay the same to Edward Ruthven, the Countess had an action against him; and this the more especially, since the Countess's right was but a personal obligation not completed by infeftment.
If the Said reservation had not been made, it was a question if Edward Ruthven, in whom the estate was vested by an act of parliament, and in effect gifted to him, would have been obliged in the performance of the Earl of Forth and Branford's deeds.
Judgment, 3 June 1714.
After hearing counsel, It is ordered and adjudged, that the petition and appeal be dismissed and that the interlocutor or decree therein complained of be affirmed.
Counsel: For Appellant,
For Respondent, J. Jekyll. John Pratt.