(1720) Robertson 254
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Subject_King's annexed Property. —
Stair, 25 Feb. 1669.
A person, to whom part of the annexed property had been granted, creates a heritable security thereon: his grant is afterwards reduced, and the decree confirmed by an act of reannexation: an act of disannexation is subsequently made, and a new grant of part of the premises passed to the representative of the family of the original grantee, though not his heir: this does not revive the heritable security granted by him.
60 l. costs given against the appellants.
The lands and lordships of Orkney, Zetland, and the Isles thereto belonging, formed part of the annexed property of the crown. In 1643, King Charles the 1st, being indebted to William then Earl of Morton, in divers sums of money, lent to and disbursed for his majesty, by charter under the great seal of Scotland, granted and conveyed to the said earl and his heirs, the Isles of Orkney and Zetland redeemable on payment of 30,000 l. sterling. By virtue of this charter the earl was infeft; and the said grant was ratified in Parliament: but no previous act of dissolution was obtained.
In 1647, the said earl and Robert Lord Dalkeith his son, granted an heritable security over the said Isles, to Sir William
In 1662, King Charles the 2d made a general revocation of all grants made by any of his predecessors of any part of the annexed property of the crown; which revocation was confirmed by Parliament. Soon afterwards his majesty made a new grant of the foresaid Isles to the Viscount Grandison, for the honourable aliment, support and dignity of the family of Morton. But in 1668 an action was brought by his majesty's advocate, in the Court of Session for reduction of the grants which had been made of the said Isles, upon the ground that they were part of the annexed property of the crown, and that the king could not alienate or grant away the same, but for good causes first advised in Parliament, nor till after an act of Parliament obtained for disuniting the said possessions from the crown. In this action decree of reduction was accordingly obtained, and that decree and all the acts of annexation were afterwards ratified and confirmed by an act of Parliament 1669. c. 13.
Sir Andrew Dick and his children being thus defeated of their security upon these lands, made their application to his majesty king Charles the Second for subsistence, till his majesty should grant a reference for accommodation of the principal sum on the said heritable security; and the king made an allowance to them of the yearly sum of 132 l. sterling out of the exchequer of Scotland, still reserving the consideration of the said principal sum. This allowance was, upon the recommendation of their case from the Parliament of Scotland, continued to them by king William, and afterwards by queen Ann, till the union.
In 1693 and 1702, James late earl of Morton applied by petition to the Parliament of Scotland complaining of the said decree, and praying that the same, with the act of Parliament ratifying that decree, might be reversed; but his petitions were rejected, and he obtained only recommendations to the crown to consider the hardships complained of.
In 1707 another application was made by the late earl of Morton to the Parliament of Scotland, representing the misfortunes of his family, and praying, for the preservation of an ancient house, which he was willing to owe to the queen's bounty, that her majesty might be empowered to make him a new grant of the premises. Her majesty having signified her satisfaction that such an act might pass, an act was accordingly passed in the Parliament of Scotland, reciting the earl's former applications and the recommendations of the Parliament thereupon; and “that her majesty having considered the same; and being convinced of the hardships and stretches therein mentioned, whereby the earl and his family were very greatly lesed, and being willing
The representatives of Sir Andrew Dick, conceiving that this grant revived their right to the heritable security on the premises, and rendered the grantee liable to make satisfaction for that debt, his daughter, Elizabeth Dick, being a creditor to her father by a bond of provision for a considerable sum of money, and James Dunbar, her husband, obtained a decree of adjudication, on the ground of the said heritable security. Having afterwards assigned this adjudication and all their right to the appellants, they thereupon brought an action of mails and duties before the Court of Session against the tenants of Orkney and Zetland, to compel payment of their rents to the appellants.
The said James, late earl of Morton, appeared and made defences to this action. Pending the action he died, and his brother, the respondent, was made party thereto.
The Court, on the 29th of January 1718, found, “That the said act of dissolution, and queen's gift, proceeded and was granted per modum gratiæ, and not modum justitiæ; and therefore found, that the right granted by the earl's predecessors in favour of Sir Andrew Dick, did not thereby revive, and remitted to the Lord Ordinary to proceed in the cause accordingly.” And to this interlocutor the Court adhered on the 21st of February thereafter. The cause being called before the Lord Ordinary, his lordship, on the 28th of February, “preferred the said earl on the rights produced to the mails and duties libelled.” The appellants having reclaimed, the Court, the 17th of June 1718, “refused the desire of the petition, and adhered to the Lord Ordinary's interlocutor.”
Entered, 18 Dec. 1719.
The appeal was brought from “several interlocutory sentences, or decrees, of the Lords of Session in Scotland of the 29th January, and 21st February, and also from an interlocutor of the Lord Ordinary of the 28th of the same February, and from another interlocutor of the said Lords of the 17th of June 1718.”
Heads of the Appellants' Argument.
It appears by the nature and tenor of the earl's new grant, that it was a restitution to the rights of his predecessors, and that by way of justice, since the act expressly mentions, that her majesty was convinced of the hardships and stretches done to his predecessor, by the decree in 1669, and the act following thereon, whereby he and his family were very greatly lesed, and was willing to do an act of justice as well as favour to the said earl, so that it could no way be properly called an act of mere favour. The earl having claimed and got back the estate of his predecessors, upon a narrative of hardships and injustice done to them, he cannot by this new grant exclude and bar the appellants, whose debt was so fairly contracted and secured to them by the said heritable right and infeftment, whilst the right of the said estate was in the person of his predecessor. The said earl's grant could only subsist upon the head of justice, and not of favour, because by the said act in 1669, whereby the said estate was annexed to the Crown, it is expressly declared, “That if at any time thereafter it should be thought fit to dispone or grant any right to any part of the said earldom and lordship, the general narrative of good services, weighty causes and considerations, should not be sufficient; but the particular causes and considerations whereupon his majesty and his successors might be induced to grant, and the estates to consent to such rights, should be expressed, and that all dispositions which should be granted contrary to that act should be void and null.” So that unless the said earl's new grant proceeded upon some other grounds than mere favour it could not be effectual to him.
Heads of the Respondent's Argument.
The appellant's demand might have been a charge upon the premises, in the hands of the first grantee, who was the original debtor; yet that will not charge the respondent, who is not representative of the said grantee, nor has any estate or effects descended from him. If he were such representative, no doubt he must have been liable by virtue of the personal obligation of the said Earl William to pay the money; and though the respondent be in possession of the premises, yet it is not as claiming under the first grantee, but by virtue of a free gift made by her late majesty, with consent of the parliament of Scotland, to the said James Earl of Morton, deceased.
The act of parliament, which is the foundation of the respondent's late grant, does mention hardships and stretches used against the earl's predecessors by a rigorous execution of the law, but does not speak of injustice, or say that the decree of 1669 was contrary to law, nor does it reverse or set aside that decree; and though it might be a hardship and stretch of the law in making void a right granted to the Earl of Morton for a valuable consideration of money lent as well as for good services done to the Crown, yet still the law stood against the grant, and no injustice
The act ratifying the decree of 1669 is reduced only in so far as it might be prejudicial to the grant to be made, that is in so far as that act did annex the premises to the Crown, but not in so far as it ratified the decree; and, therefore, that decree stands unreversed to this day; and of consequence the first grants made to the Earl of Morton in 1643 and 1646, and the heritable security founded on by the appellants, are void, and not revived. If the parliament, in 1707, had intended to reduce the decree in 1669, they would have proceeded in a judicative way, and the Crown would not have been enabled to make a new grant of the whole or a part of the premises, but the old one would have been revived. In fact however the whole estate contained in the old grant was not given; the office of admiralty, certain jurisdictions, superiorities, &c. are reserved, and what is given is under the rent charge of 500 l. per annum; whereas no more was payable by the tenor of the old grants, than a silver penny if demanded.
If the old grant had been revived by the new grant, it would have been so far from being a royal favour to the Earl, that it must have been of very great prejudice to him; since not only the premises would have been quite exhausted by the growing interest of this pretended heritable security from the year 1647, but the Earl's other estate would likewise have been subjected to the payment of the appellants' debt by his very using of the new grant.
The reason of the caution in the act 1669, founded on by the appellants, is plainly expressed, that it may appear the same is not granted through importunity, &c. So the act does not prohibit or lay a restraint upon the Crown's making a voluntary grant, but only that any grant to be made should proceed upon special causes and motives; and if these be not expressed in this act 1707, it is hard to say where to find them, and the act has taken care particularly to recite them.
Judgment, 3 Feb. 1719–20.
After hearing counsel, It is ordered and adjudged, that the petition and appeal be dismissed, and that the several interlocutors, sentences, or decrees therein complained of be affirmed: And it is further ordered, that the appellants do pay or cause to be paid to the respondent the sum of 60 l. for his costs in respect of the said appeal.
Counsel: For Appellants,
For Respondents, Rob. Dundas. Rob. Raymond. Sam. Mead.