(1739) 1 Paton 225
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Subject_Mutual Contract. — Passive Title— Act 1695, c. 24.—
Circumstances of an obligation incurred by an apparent heir, under which the next heir, passing him by, and serving to a remoter ancestor, was found liable, without relief against the executry, or other separate estate of the apparent heir.
[Elchies, No. 12— voce Mutual Contract.]
James, Marquis of Annandale, succeeded to the title and estate of Annandale in 1721. Shortly afterwards, by the death of his younger brother William, the succession to the maternal estate of Craigiehall opened to his sister, the Countess of Hopetoun, who was the first substitute then in existence. But the right of the Countess was
In the event of Lord Hope's not succeeding to the estate, it was provided that the entail of Craigiehall should be registered, and that the Countess should be served heir of entail. On the other hand, she, with the consent of her husband, discharged the Marquis of all claims he had for the bygone rents, and assigned to him the rents for the year 1725, and all subsequent years during their joint lives; but under certain conditions. Whence the present question arose, of which one was as follows:—
“But if it should happen the said Marquis to have no heirs of his own body to succeed to him in the estate of Annandale, and that neither the Countess, nor any of her children, should happen to succeed to him in the estate of Annandale, then, and in that case, any person who should succeed to that estate, not being procreated of his body, should be obliged not only to refund to the Countess, and her foresaids, the said rents of Craigiehall; to be received by the said Marquis during the joint lives of him and her, at the rate of L.450 yearly, with interest; the rent of the year 1725, bearing interest from Whitsunday, 1726, and so forth as to subsequent years, but also the said heirs succeeding to the estate of Annandale, who should not be procreated of the Marquis's body, should be further bound to pay to the said Countess, and her foresaid, the
further sum of L.1225, or, at the option of the Countess, a sum equal to half of the rents more.”
Marquis James died in 1730; and, upon his death, Marquis George, the appellant, (his younger brother by a second marriage) brought an action of exhibition and reduction against Lord Hope, to set aside the said settlement of 1726, as made by a person who had never been feudally vested in the estate, so as to enable him to make the said deed; and in this action, after a variety of procedure in the Court of Session, and in the House of Lords, he ultimately succeeded, and obtained decree setting aside the only feudal right to the estate of Annandale, which Marquis James had made up, and consequently also reducing the said settlement made by Marquis James in favour of Lord Hope. Upon this, the respondents brought the present action against the appellant for payment of the rents of the estate of Craigiehall; viz. L.450 for five years, being the time Marquis James was in possession of that estate, from the year 1725, until his death, together with the interest, and likewise for the sum of L.1225, which was to be paid upon the same contingency. The pursuers insisted, that although the title of Marquis James had been reduced, yet, as he had the appearance of a title, creditors might contract with him bona fide, and they founded upon the act 1695, for obviating the frauds of apparent heirs. In defence, it was maintained that, although the appellant had served himself heir to his father Marquis William, who was a remoter predecessor than Marquis James, yet the debts in question were not of the description protected by the act, that they were voluntary, and not contracted for a valuable consideration;
Dec. 17, 1725.
The Lord Ordinary found, “That the defender (the appellant) was liable in performance of the articles of agreement libelled, not by virtue of Marquis James's feudal title, since that title had been reduced, but by virtue of the act 1695, as having passed by his immediate predecessor, Marquis James, (who was more than three years in possession) and as having served himself to a remoter predecessor; and found, that the articles of agreement was an onerous transaction, and therefore repelled the defence that the same was gratuitous, and did not fall under the said act: and in respect of the conception of the said articles of agreement, found the present Marquis, the defender, had no ground of relief competent to him against the executory, or any other separate estate belonging to the said Marquis.”
June 24, 1736.
The Lords found, “That notwithstanding the reduction of Marquis James's title, the onerous debts of the said Marquis may affect the estate of Annandale; and they adhered to the interlocutor of the Lord Ordinary, finding the transaction between Marquis James and the Earl and Countess of Hopetoun, an onerous transaction; but they found that in as far as the pursuer founded their claims upon the act of Parliament, 1695, relief was competent to the
The Court (6th July, 1737) adhered as to the finding that the transaction in question was onerous, and that such onerous deeds affected the estate; and remitted to the Lord Ordinary to hear parties upon the point of relief.”
Jan. 31, 1738.
Upon the report of the Lord Ordinary, the Court found, “that so far as the Marquis of Annandale is liable on the act, 1695, there is relief competent to him against the separate estate; but found, that Marquis James, having stood infeft by charter and seisin, which infeftment was effectual to creditors, that he, having charged the present Marquis, the heir succeeding to him in that estate, in favour of the Countess; that Lord Annandale had no relief against the separate estate.”
Entered Feb. 17, 1738.
An appeal was brought by the Marquis of Annandale from those parts of the above interlocutors which found the transaction in question onerous; and that he was liable to perform the same, by virtue of the act 1695: and it also complained of that part of the last interlocutor, in so far as it found that, by reason of Marquis James's feudal title, he had no relief against the separate estate.
Entered March 20.
A cross appeal was brought by the Earl and Countess of Hopetoun from those parts of the above interlocutor, which found that the appellant, the present Marquis, in so far as he was liable upon the act 1695, had relief competent to him against the separate estate.
Pleaded for the Appellant (the Marquis:)—Marquis James never enjoyed the estate by any good
Now the statute does not apply: for Marquis James did hot enjoy the estate as apparent heir, but under a bad title, constituted by charter and seisin, which have since been reduced, and therefore the case is not within the act 1695. But, besides this, the respondent, the Countess of Hopetoun, was no creditor of Marquis James within the meaning of the act; for, as against him, she could never have made any demand; and, as against the appellant, her demand is not onerous, ( i. e. for a valuable consideration, and such only are within the act,) but merely gratuitous and fraudulent, which appears from the nature of the transaction, and all the circumstances attending it.
Pleaded for the Respondents, (the Earl and Countess of Hopetoun:)—The debt claimed is for a full and valuable consideration. The Countess of Hopetoun had an undoubted right to the rents of Craigiehall from 1724, to the death of Marquis James; and those rents, having been received by the said Marquis, are, without doubt, a full consideration for the claim in so far as regards them. With regard to the sum of L.1225, this is also an onerous debt, being for the previous rents from 1721, when the succession opened, which would have amounted to a greater sum.
Pleaded for the Appellants, (the Earland Countess of Hopetoun:)—The statute 1695, so far as it subjects the heir to the debts of the immediate predecessor, gives the creditor the same claim against the estate of the deceased debtor, as he would have had if the debtor had made up a regular feudal title. In that case, the next heir could neither contest the debt, nor have any claim of relief; and the present statute has not pointed out, or intended to give him any such relief. Besides, it being the evident intention of the deceased person, that his executor and other separate estate should be free, and the particular estate charged with the debt, it would be unjust and contrary to this intention, to allow the heir passing by his immediate predecessor to throw this burden upon the executry.
Pleaded for the Respondent, (the Marquis:)—The act 1695 was not passed for the sake of the debtor, nor for the relief of any separate estate belonging to him, but as a further security to fair and onerous creditors; and therefore if the heir, for the advantage of the executor, be obliged to pay a debt properly moveable, he has an undoubted claim of relief upon the executry, to which the debt properly belonged.
Judgment, Feb. 15, 1739.
After hearing counsel, “it is ordered and adjudged, that such parts of the interlocutor of the 21th January, 1736, and 31st January, 1738, whereby it is found, “That in as far as the respondents, the Earl and Countess of Hopetoun, founded their claim upon the act of Parliament 1695, and the appellant was found liable on the said act, relief was competent to him against the
Counsel: For Appellant,
James Erskine and
For Respondents, Ch. Areskine and J. Sharp.