(1723) Robertson 449
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Subject_Life-rent Escheat — Aliment of the Fiar. —
An estate being settled by entail, upon a person in life-rent, and a certain series of heirs in fee, with the burden of an aliment to the first substitute: the life-renter forfeits his life-rent escheat for treason; and the Court of Session having, in a competition with the donator, granted an aliment to the fiar, their judgment is reversed.
After the determination in the two former appeals, a new question arose between the appellant, the grantee of the life-rent escheat of Alexander Mackenzie of Fraserdale, the forfeiting person, and the respondent, the eldest son of this Alexander Mackenzie, and of Emilia, the heir female of the family of Lovat, who stiled herself Baroness of Lovat.
By the deed of entail executed by Lord Prestonhall in 1706, in the last appeal mentioned, he settled the estate of Lovat upon Alexander Mackenzie, the forfeiting person his son, in life-rent, and upon his grandson the respondent, and the heirs male of his body, in fee, with several other substitutions of heirs: and the deed contained this condition and proviso, inter alia, That the life-rent of the said Alexander should “be subject to and with the burden always of alimenting and educating the said Hugh Master of Lovat” (the respondent) “and other heirs of tailzie above mentioned, according to their rank and quality.” And in the charter and sasine subsequently obtained, the said provisions and conditions are repeated.
In April 1721, the respondent Hugh, by his father and curator Alexander Mackenzie of Fraserdale, who had then received his majesty's pardon, brought his action against the appellant before the Lords of Session in Scotland, insisting that the life-rent of the said Alexander Mackenzie had been burdened with the alimenting of the respondent; and the appellant having come in the place of the said Alexander, the respondent ought to be alimented by him.
The appellant made defences, and after a hearing of the cause, the Court, on the 6th of February 1722, “Found that the respondent is entitled to an aliment out of the estate of Lovat, whereof he is fiar.” The appellant having reclaimed, after answers for the respondent, the Court, on the 24th of February 1722 “found that the respondent the fiar of the estate of Lovat is entitled to have an aliment out of the rents of the estate of Lovat, which was life-rented by the said Alexander Mackenzie and whereto the appellant had right as donator of the said Alexander Mackenzie's life rent escheat; and allowed to either
Accordingly a proof was taken, by which it appeared that the appellant was in possession of the estate of Lovat, the yearly rent of which amounted to 10,000 merks, free of all burdens; and on the 11th of December 1722, the Court modified 2000 merks of “yearly aliment to the respondent, to commence from the date of the summons of aliment, on the 12th day of April 1721; and remitted to the Ordinary on the bills to allocate lands, out of which the same should be uplifted by the pursuer himself, free of all public burdens.”
In pursuance of this remit, the Lord Ordinary on the bills, on the 26th of the same month of December, allocated to the respondent the lands of Ingliston, Kirkton, Grolin, Fingask, and the mains of Lovat, to be possessed by him during his father's life, in payment of the said aliment.
Entered, 17 Jan. 1722–3.
The appeal was brought from “two interlocutory sentences or decrees of the Lords of Session of the 24th of February 1722, and 11th of December thereafter.”
Heads of the Appellant's Argument.
There is no colour or presence in the law or practice of Scotland, for compelling the superior or his grantee, in whose hands lands are, by the forfeiture of his vassal's life-rent escheat, to allow any aliment to such vassal's heir, or to the fiar, where the forfeiting person is tenant for life only; no casualty of superiority is more frequent in Scotland than that of life-rent escheat, and yet no single instance can be produced, where a claim of this nature was ever insisted on, or sustained.
The obligation which lay upon the forfeiting person to aliment the respondent was purely personal, and could not have afforded any real action against the estate of the forfeiting person prior to the forfeiture; wherefore by the law of Scotland, it cannot affect the appellant's gift, which is preferable to every claim that did not afford a real action against the estate prior to the forfeiture.
As this is the undoubted law of Scotland, so it has been declared by the judgments on the two former appeals; the first of which decreed, that the estate in the appellant's possession should be chargeable with such debts only as were real, and did by the law of Scotland affect the same at the time of the forefeiture; and the second adjudged, that the debt due to Alexander Mackenzie of Garloch, though made a burden on the forfeiting person by the conditions of the settlement of the estate, as being a debt of the grantor's, was not real, so as to be preferable to the appellant, because it yielded no real action against the estate at the time of the forfeiture. Now if real debts only in this sense can affect the estate, it is impossible that the respondent's claim, which was no more than an illiquid demand upon his father, and
The respondent's claim prior to the forfeiture was so unsettled and weak, that even the personal creditors of Roderick Mackenzie, the maker of the settlement, must, by the law of Scotland, have been preferred to it: Now the appellant's right having already been found by the House of Lords effectual to exclude those personal creditors, who have the very same provision made in their favour by the settlement of the estate as the respondent has, it cannot well be imagined for what reason the respondent's claim, which is less effectual than that of those other creditors, should be preferred to the appellant's grant.
Supposing an aliment had been due, which it is conceived was not, the most the Court could have done, was to have decreed the appellant to have paid the sum modified, upon which proper process might have issued. But, before the appellant was in contempt, to have turned him out of possession, and to have decreed that the respondent should be put in possession of lands, such as he thought fit to name, lying in the neighbourhood of the appellant's dwelling-house, appears to be an act in itself unreasonable, and very greivous to the appellant; tending like the other decrees already reversed, to render his majesty's grant altogether ineffectual to him.
Heads of the Respondent's Argument.
The aliment and maintenance of the respondent the minor' was, by the express appointment of the donor, who gave the life-rent of this very estate to the forfeiting person, charged upon that life-rent, and was an inseparable condition upon which it was granted; consequently the grantee could not have that life-rent but with its burden, viz. the aliment of the respondent the minor. And this is the stronger, since the life-rent of Mr. Mackenzie, was not a reserved life-rent, but a life-rent constituted by the voluntary deed of settlement of the respondent's predecessor, to whom he must have been heir. Nor can this be looked upon to be only a personal obligation upon Mr. Mackenzie to maintain his heir; because the grantor of that very life-rent to Mr. Mackenzie, has charged that life-rent with this aliment, and it was a condition upon which his life-rent was to subsist.
The reason for preferring the appellant to the creditors was, that their debts not being particulary mentioned, and specified in the deed of settlement, did not infer any real charge upon the estate in prejudice of the grantee, as they were not made real by diligence before the grant was made: but this does not meet the case in question, because the burden of the aliment of the respondent is particularly mentioned, and the life-rent subjected to it Besides the aliment could never be made more real upon the life-rent than it was; it being both a condition, and a burden, upon the life-rent estate, and consequently upon the profits of that estate in the hands of the grantee.
Judgment, 22 May 1723.
After hearing counsel, It is ordered and adjudged, that the interlocutory sentences or decrees complained of in the said appeal be reversed.
Counsel: For Appellant,
For Respondent, C. Talbot. Will. Hamilton.