(1820) 6 Paton 644
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.
[2 Bligh, p. 197.]
House of Lords,
Subject_Entail — Power of Leasing — Exercise of that Power — Homologation — Turpe Pactum.
Leases were granted by the late Duke of thirty or forty of his farms, at a rent less than two-thirds of their value at the time, and less than one-third of their present value, to John Boyes, the Duke's own confidential factor, who sub-let them, deriving a yearly surplus, or increase of rent, of £1376. These leases were let for the period of twenty-one years. The entail contained a prohibition against alienating. It permitted leases, but not to exceed twenty-one years' duration, and they were not to be let “ with evident diminution of the rental.”Accordingly, it was stated, the above was a device formed to hurt the succeeding heirs of entail, and to benefit the respondent, who had lived with the Duke, and had begot him a daughter. An obligation under the hand of Mr Boyes was adduced, stating that it was agreed between the Duke and him, that he should hold whatever increase of rent he might derive from the sub-letting, or assigning, these leases, in trust for behoof of the said Mrs Esten, and her daughter, Ann Douglas Hamilton, and any other child or children that may be procreated between the said Duke and her, “and she has further reposed in me the trust and charge of collecting the surplus money rents.”After the Duke's death, in 1799, the present Duke, ignorant of his rights, acquiesced in Boyes so appropriating
Against these interlocutors the present appeal was brought.
After hearing counsel,
The Lords find, that the leases in question were not warranted by the power contained in the deed of entail, and therefore subject to reduction, unless the same were homologated by the late appellant, Archibald, Duke of Hamilton, deceased, and by the appellant, Alexander, now Duke of Hamilton; and so far as the same were not so homologated, respectively, it is ordered and adjudged, that the interlocutors complained of be reversed; and it is further ordered that the cause be remitted back to the Court of Session, to review the same, subject to the above finding.
Counsel: For the Appellants,
For the Respondents, Alex. Maconochie, Sir Saml. Romilly, J. Blackwell.