(1723) Robertson 443
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Subject_Fiar and Life-renter. —
The Court of Session having found, that a fiar had the right to cut and sell woods growing on part of an estate, that was life-rented, the judgment is reversed.
In 1693, William, Duke of Hamilton, and Anne, Duchess of Hamilton, executed an entail of all their estates, settling the same upon themselves, and the longest liver of them in life-rent, whom sailing to James Earl of Arran, their eldest son, and the heirs male of his body; with several other substitutions of heirs, and with prohibitory, irritant, and resolutive clauses against selling or contracting debt; but it contained a power to the said Earl of Arran to grant a life-rent provision and jointure, out of any part or portion, or out of the whole lands and barony of Kinneill, Carridden, Abbotscars, and Lockhouse (which had formerly been the separate estate of the said Anne, Duchess of Hamilton, and of which the Earl of Arran was then in possession for his maintenance) in favour of a wife or wives whom the said Earl should marry, not exceeding the sum of 1500 l. sterling of yearly rent; provided the said William Duke of Hamilton, if then in life, should be consenting to such marriage, and should join in the settlement of such life-rent, provision, and jointure. In July 1694, this entail was duly recorded in the register of entails.
A marriage being intended between the said James Earl of Arran, (afterwards Duke of Hamilton) and the appellant, the Earl, on the 15th of July 1698, executed a bond of provision or jointure to the appellant, whereby, after reciting the said entail, and the power thereby reserved to him, he obliges himself to provide and secure the lands and barony of Kinneill, with the castles, towers, fortalices, houses, yards, parks, woods, forests, fishings, &c. in life-rent to the appellant, and to warrant the said lands and premises to have been worth, and to have paid for several years before, and to be worth and pay yearly during the said life-rent the sum of 1500 l. And in a marriage-contract of same date, this life-rent provision was accordingly settled in these terms.
James, Duke of Hamilton, however, not having been infeft at that period in the premises, it became necessary that the settlement should be confirmed by Anne, Duchess of Hamilton, his mother. And on the 30th of March and 20th of April 1702,
In January 1722, the respondent, the duke, and his curators, entered into an agreement with the other respondent. Gillies, to which the appellant was not a party, whereby they sold and disponed to the said respondent, Gillies, all the growing timber in the wood and parks of Kinneill (adjoining to which was the only house which the appellant had upon her life-rent estate) consisting of oak, ash, birch, elm, alders, and other timbers, with liberty to cut the same at the times in the said agreement mentioned, to the effect the said Gillies might cut down and dispose of the same, as also the grass in the said wood before the axe, with power to build houses in the said parks for the conveniency of the woodcutters; and with an obligation that the gates of the said parks should, during that term of years, be open to the said Gillies at pleasure, and that he should have free passage through any part of the said parks for carrying away the timber, bark, &c. In consideration thereof the said Gillies bound himself to pay 900 l. at the several times therein mentioned.
Gillies accordingly cut down part of the said wood; but when several persons to whom he had sold the same, came to carry it away, the appellant ordered the gates to be shut, prohibited Gillies from cutting any more trees, and would not allow any person to go near the said woods, and brought a suspension against Gillies before the Court of Session.
The respondents, the duke and Gillies, thereupon applied to the Court of Session, stating the circumstances of the case, and praying that the gates and passages might be opened, and that their lordships would discharge all obstructions and interruptions to the regular cutting and carrying away of the woods in terms of the foresaid agreement. The appellant having made answers, the Court, on the 12th of July 1722, “found that the respondent, Gillies, ought to be allowed to carry off and dispose of so much of the said wood and bark as he had then cut, on his giving security to pay the value to the appellant or respondent, which of them should be found to have best right in the event, and give security to fence sufficiently that ground whereon the wood he had cut was growing; and for that effect ordained the appellant to cause make open the entries and passages, that the said Gillies might have access to carry off the said cut wood and bark in the same way as before the said passages were of
The respondent, the Duke, also brought his action of declarator to have it found, that he only had a right to cut the said wood; and after defences for the appellant, and a hearing in presence, the Court, on the 25th of January 1723, “found that the appellant, the life-rentrix, might use the woods of Kinneil for her proper uses, and for keeping in repair the houses on the lands of Kinneil, which she life-rents; but that she had no right to cut or dispose of the said woods by sale or otherwise, and remitted to the Lord Ordinary to proceed accordingly.”
The cause being accordingly heard before the Ordinary, his lordship, on the first of February 1723, “found that the appellant must allow the respondent and the said Alexander Gillies, and the persons employed by him, free passage in cutting and carrying away the said wood and timber thereof, and to proceed, in cutting of the said wood, and executing the haill powers granted to the said Alexander Gillies by the contract made concerning the cutting of the said wood, carrying away the timber thereof, and the whole other powers in the said contract contained, and discharged the appellant to obstruct or hinder the same; and found and declared, at the Respondents' instance, conform to the conclusion of the said summons of declarator against the appellant, and the interlocutor of the Lords in presence, and suspended the letters at the appellant's instance against the said Alexander Gillies, and decerned in the above terms; but found that the respondent must make up to the appellant what prejudice she shall suffer in the grass, through cutting and carrying away the said wood and timber thereof, and by the straying of cattle through the keeping of the gates and passages open; and that he must either leave so much of the woods standing as may answer the uses competent to her as life-rentrix, in terms of the interlocutor in presence, or furnish her with other timber in place thereof.”
Entered 28 Feb. 1722–3.
The appeal was brought from “an interlocutory sentence or decree of the Lords of Session of the 25th of January 1723.”
Heads of the Appellant's Argument.
The appellant having the lands and barony of Kinneill, and parks and woods secured to her for life, the Duke of Hamilton (a), who has the reversion, cannot enter thereupon, or cut or dispose of any wood growing upon the same without her consent. And the appellant is in a much stronger case than if she had only a life-rent in the lands; because the very woods themselves are expressly made over to her in life-rent, which she is advised does entitle her to cut and dispose of those woods in a proper course, if the same happen to be fit for cutting during her life, because otherwise the conveyance of the woods can have no meaning at all; and consequently for the duke to dispose thereof, is to take to himself part of the profits to which the appellant is entitled.
If the appellant be not entitled to cut or dispose of the said wood for her own use and profit, yet at least the respondent can have no power during her life to cut the same, and thereby not only to deprive her of the ornament and shelter the said wood gives to her dwelling-house, but to render the park (to which her right is undoubted) useless and unprofitable to her for a term of years, that may be as long as her life. But the decree seems inconsistent with itself, since it finds that the appellant may use the woods for her proper uses, and for keeping in repair the houses on the lands which she has for her jointure; and yet decrees, that the Duke of Hamilton may cut or dispose of the same woods by sale or otherwise.
It was contended for the respondent, that the late Duke of Hamilton, by the entail of his estate, was so tied up, that he could make no jointure to a lady exceeding 1500 l. per annum, and that the rent of the barony of Kinneill, over and above the woods, extends to that sum; and therefore that the appellant cannot be understood to have got a right to cut and dispose of the woods. But the appellant's right flows from Anne, Duchess of Hamilton, who was under no limitation, as well as from the late duke. And the limitation in the entail concerns only the rents of lands, but there is no restriction as to the power of disposing of woods. If the rents of the appellant's life-rent estate were higher (as they are not) than the sum which the late duke was empowered to grant by way of jointure, the respondent may take his remedy so far to avoid the settlement by due course of law, but cannot seize the appellant's park, destroy the wood, and render it useless on pretence her jointure is too large. But the decree over-rules this objection; for it presupposes and admits that the appellant has a life-rent in the woods, though it deprives her of the benefit of it.
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( a) It is nowhere stated in either of the Cases, whether or not the appellant was the respondent, the duke's mother; but from Douglas's Peerage it appears that she was so.
Heads of the Respondents' Argument.
1491, c. 25.
1535, c. 15.
As the law does not give the mere life-renter any power of cutting woods, so the inserting of the words “ the woods” in the bond of provision is only in course of stile, amongst other pertinents of the estate granted, and cannot give any power inconsistent with the right of the life-renter: the import can only be that the appellant may have the use of them for necessary repairs; especially since a life renter is, by several acts of parliament in Scotland, directed to find security not to cut the woods. The wood in question is not underwood, or silvæ cadua, to be cut by yearly proportions, but is such a wood as is cut only once in 40 or 50 years: woods of that kind are pars soli, and do not belong to the life-renter, that would be giving the appellant an advantage that was not at all intended for her.
The late Duke of Hamilton had no power to settle a jointure but what was given to him by the deed of entail; in that he is restricted to settle a jointure out of the lands and barony of Kinneill, without any mention of woods; and if therefore the inserting the woods in the bond of provision, could be construed to be of any import, they are beyond the power which the duke had, and consequently of no effect. The late duke by the said entail, could not provide a jointure exceeding 1500 l. per annum; and the appellant has so much exclusive of the woods, consequently there is no reason for the appellant to claim the profit of these woods.
The appellant contended, that this entail was not compleated in the late duke's person by infeftment, and the late duchess, (whose the estate was,) having joined with the duke in this bond of provision to the appellant; whatever they granted to her ought to be effectual, especially since infeftment was made to her prior to any sasine upon the entail. The act of parliament 1685, concerning entails does indeed require the irritant clauses to be inserted in the procuratories of resignation, precepts of sasine, &c. but no where declares them of no force if no infeftment is made; on the contrary it expressly says, “That the original entail once produced before the Lords of Session judicially, and recorded in the register appointed for that effect, the entail so insert shall be real and effectual not only against the contraveners and their heirs, but also against their creditors and other singular successors, whether by legal or other conventional titles.” And the consequence is, that this settlement being recorded is binding upon the appellant. Besides, the appellant had full notice of this entail; it is expressly recited and taken notice of in her bond of provision, and the jointure granted in pursuance of the power thereby given to the late duke; if then he had no power to settle the woods, as he had not, then the appellant can have no claim thereto.
Nor will it alter the case, that the late Dutchess of Hamilton joined in the settlement upon the appellant; she was but a life-rentrix at that time, and she conveys nothing but only consents to the settlement made by her son. It is to be remarked that the
Notwithstanding the settlement of a jointure, the fiar has a power to cut the woods, because otherwise the woods upon the estates that are life-rented might become altogether useless, and decay, by not being cut when at a proper growth; and indeed this is the case of the woods in question, for if they are not cut they will in a little time be good for nothing. It is the undoubted law of Scotland, that the fiar has the power of cutting the woods; thus the learned Craig L. 2. Dieg. 8. pag. 189. Says “Neque enim unquam tertia terræ impedimento suit Domino, quo minus universam suam Silvam vendere potuit, quod nuper inter Ramseum de Dalhoussie, & Mariam Ballandinam, prædecessoris sui conjugem, factum vidi.” He likewise says, “That even the grantee of the life-rent escheat has no power to cut woods:” and thus the judges determine in all such like cases.
Since the respondent, the duke, has a right to cut, he must also have the use of the ways and passages, because necessary to his right; but the decree has abundantly provided a satisfaction to the appellant for any loss she may sustain thereby, which satisfaction is to be paid in the first place out of these woods.
As these woods will necessarily decay and grow good for nothing if not now cut, so it would seem unreasonable that had the appellant any right to hinder the respondent from cutting them, she should do it, under the notion of the pleasure of the woods in a place where she has not been two months in ten years, that she has been in possession of the estate; and the respondent would be as far from destroying the pleasure of that place as the appellant; but he justly apprehends that if the wood be not cut, the pleasure will be destroyed, especially as one-sixth of the whole is now cut. If the residue be cut, in a very few years it will be more pleasant than now.
The respondent is very far from calling in question, or endeavouring to diminish the appellant's jointure. His father had a power of settling 1500 l. per annum; and the appellant is in possession of that income, exclusive of the woods. The respondent did before the Court agree, that she should have 1500 l. per annum, and if there should be any deficiency in the rental, that he should make it up to the appellant.
Judgment, 21 May 1723.
After hearing counsel, It is ordered and adjudged, that the said interlocutory sentence or decree be reversed.
Counsel: For Appellant,
For Respondents, Dun. Forbes. C. Talbot. Will. Hamilton.