Scottish Court of Session Decisions

Subject_1 BONA ET MALA FIDES.
Subject_2 SECT. V.

Effect of a Purchaser acquiring a Right preferable to that of his Author; and of Onerous Deeds granted by a Bona Fide Possessor.

Christian Heron, Relict of Coltrain, alias Stewart,
v.
Agnes Stewart, and Hathorn her Husband

Date: 9 February 1749
Case No. No 24.

A person, appearing from the records, to be the proprietor of an estate, burdened it in terms of his contract of marriage with a liferent infeftment. His right to the estate was reduced, but the liferent infeftment remained effectual.

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John Stewart, writer in Edinburgh, afterwards designed of Phisgill, intermarried, in the year 1668, with the daughter of Thomas Stewart, Provost of Wigton; and, by the contract of marriage, she disponed to him, and the heirs to be procreated of the marriage, the lands of Glenkirk, a small interest she had by her father; and he, on the other hand, became bound to provide her in the liferent of the half, and the heirs of the marriage in fee of all he then had or should acquire during the standing of the marriage; and, on the precept contained in this contract, he was infeft in the lands disponed by the wife.

Notwithstanding which, having purchased the lands of Phisgill, he, in 1703, expede a charter thereof under the Great Seal in favour of himself and the heirs-male of his body, whom failing, of his own nearest heirs-male, whom failing, of his heirs and assignees whatsoever; and thereon was infeft: And, in the year 1719, he expede a new charter on his own resignation in favour of himself and the heirs-male of his body, which failing, to the heirs-female of his body, the eldest succeeding without division; and this he did in the form of a strict entail, and was thereon infeft.

John Stewart some months thereafter died; and William Stewart, his third and then only surviving son, made up his titles as heir of provision by the said tailzie; and again, upon his death without issue, Agnes, his eldest daughter, succeeded, and was infeft as heir of entail to her brother. But this tailzie was afterwards, about the year 1740, reduced, at the instance of Agnes, the daughter of his second son Robert, when it was found, That both estates of husband and wife being provided, by the contract of marriage 1668, to the heirs of the marriage, John Stewart had no power to make the tailzie 1719, and that the same was contra fidem tabularum; and which judgment the House of Lords affirmed.

It has been said that Agnes, the eldest daughter of John Stewart, succeeded upon the death of William her brother. While she was yet in life, but past the age of having children, Captain John Coltrain of Drummorel, the eldest son of Elibazeth, the second daughter of John Stewart of Phisgill, and as such the presumptive heir of tailzie, intermarried with Christian Heron, daughter of Heron of that ilk; and, by the contract of marriage in 1728, in contemplation of the marriage, and of L. 500 Sterling of tocher, became bound to infeft her in a liferent of 600 merks out of the estate of Drummorel; and in case of his succeeding to the estate of Phisgill during the subsistence of the marriage, he disburdens his estate of Drummorel, and becomes bound to infeft her in a liferent of 900 merks out of the estate of Phisgill in case of children, and of 1200 merks in case of no children of the marriage.

So it happened that Agnes died in 1732, whereupon he succeeded as heir of entail to her; and having made up his titles accordingly, he, by a deed referring to his foresaid contract of marriage, provided his wife in a liferent out of the estate of Phisgill of 1200 merks in case of children, and 1500 merks in case of no children; whereon she was infeft in 1734.

Upon the death of John Coltrain, alias Stewart, who was killed at the battle of Preston, September 21. 1745, Christian Heron, his relict, pursued an action of mails and duties upon her liferent-infeftment on the lands of Phisgill; wherein compearance having been made for Agnes Stewart, now of Phisgill, and her husband, the argument will in a great measure appear from the pointed interlocutor pronounced upon report, by which

The Lords found, “That the obligation entered into by John Coltrain of Drummorel, afterwards John Stewart of Phisgill, in the marriage-settlement between him and Mrs Christian Heron the pursuer, whereby he was bound to settle upon her a liferent to the extent of L. 50 Sterling yearly, was onerous upon the part of the said Christian Heron, and rational on the part of the said John Coltrain, alias Stewart; and that he having implemented the same, by granting the liferent infeftment to that extent, when he was in the right of fee and property of the estate of Phisgill, and his right subject to no challenge from any thing that could appear upon the records, that infeftment was likeways just and onerous, and does subsist in her favour, notwithstanding the reduction afterwards brought against the right and title of the said John Coltrain upon the latent personal obligation contained in the contract of marriage entered into in anno 1668, between John Stewart writer in Edinburgh and Agnes Stewart his spouse, whereby he was bound to fettle the estate he should acquire in favour of the heir whatsoever of the marriage, and notwithstanding the decree obtained in that reduction setting afide the right of the said John Coltrain, which the Lords found cannot hurt the said onerous liferent-settlement made to Christian Heron, the pursuer, by her said husband, while he stood in the full right of property of the estate, conform to the infeftments and investiture thereof.”

An interlocutor so full, that it in a great measure points out, and at the same time obviates the arguments pleaded for the defender from the common-law and act 1621: As to the common-law, the maxim that resoluto jure dantis resolvitur et accipientis, holds only in three cases; 1mo, In extinguishable rights; 2do, Where the third party prevailing against the author has the preferable feudal right; or, 3tio, Where the author's right is intrinsically null, against which the records cannot save; as where his service happens to be erroneous: But the present case is different, where the feudal right was habily vested in the author, and only subject to a personal challenge; for then the purchaser on the faith of the record is safe. And as to the act 1621, though it is true that the acquirer is particeps fraudis, where he fees the defect of his author's right, yet that was what the pursuer could not see in this case: For though she saw her author's right from his grandfather to be a gratuitous settlement of succession, yet she could not see any thing on record to hinder the grandfather to make that settlement, as he stood in the absolute right by the charter and infeftment 1703, and that his obligation in the contract of marriage 1668 was a latent deed which she nor any purchaser could know of.

*** This judgment was affirmed on an appeal to the House of Lords. Fol. Dic. v. 3. p. 92. Kilkerran, (Personal and Real.) No 6. p. 389. *** D. Falconer reports the same case:

John Stewart, writer in Edinburgh, by his contract of marriage 1668, with Agnes, daughter of Thomas Stewart, Provost of Wigton, in consideration of the disposition of Provost Stewart's estate to him, and the heirs of the marriage, became bound to provide the fee of all he had, or should acquire during the marriage, to the heirs to be procreate thereof.

John Stewart acquired the estate of Phisgill, and 1719 made a tailzie thereof, which he completed by infeftment, to himself and the heirs-male of his body; which failing, to his heirs female, and the heirs male of their bodies, without division; with other substitutions; secluding Agnes the daughter of the deceased Robert Stewart his son: And dying, was succeeded by William a younger sonthan Robert, who was infeft 1720; and was succeeded 1727 by Agnes the daughter of John the tailzier; who was succeeded 1732 by John Coltrain of Drummorel, son of Elizabeth her sister, who then took the name and title of Stewart of Phisgill.

John Coltrain 1728 married Christian daughter to Patrick Heron of that ilk, with whom he received in portion L. 500 Sterling, and became bound to infeft her in an annuity, to be uplifted out of the estate of Drummorel of 600 merks Scots: And, “in case he should at any time succeed to the estate of Phisgill, he freed the lands of Drummorel of the said annuity, and obliged him to infeft her in an annuity of 900 merks in case of children, out of the estate of Phisgill.”

Agnes, the daughter of Robert, married John Hawthorn of Over-Airies; and they pursued a reduction of the tailzie, and John Stewart's service and infeftment thereon; in which they prevailed: But he, during the subsistence of his title, had granted to his lady ‘an yearly liferent provision of the full fourth part of the free rents of the lands and barony of Phisgill;’ for which she was infeft in the whole estate; because it was provided by the tailzie, that none of the heirs should grant to their spouses any annuities to be uplifted forth of the said estate, but they should be infeft in the lands themselves, or so much yearly rent; so that they might receive the same, and the succeeding heirs of tailzie not be bound for payment thereof, nor the lands afterward affected therewith.

Upon the death of John Stewart, who was killed in his Majesty's service in the battle of Preston, his lady pursued a mails and duties, as a bona fide onerous purchaser from the person in the right.

Pleaded for the defender, It is a maxim, that no person can convey to another a greater right than is in himself: John Coltrain was not proprietor of the estate, and therefore could not lay a burden upon it; and supposing the pursuer's bona fides, that can never make valid a title a non domino: bona fides does not make a right; as neither can the onerosity of the purchase be of any consideration. However there was no bona fides; a process of exhibition of old John's contract of marriage was raised in his own lifetime, in which John Coltrain was called, as was William Stewart, who after possest the estate; but he served himself tutor at law to Agnes his niece, and on that title got up from her agent the process upon his receipt, and by these means she was, by her tutor and relations, kept out of her estate. It is true, this process does not now appear; nor is it clear, by the receipt, it related to the contract of marriage; but that it did, is made evident by the oath of the agent for this family, taken in the process of reduction; and the contract itself was recovered out of the charter-chest of Phisgill, to which the pursuers of the reduction were directed by the oath of Heron, taken in an action of proving the tenor thereof. Neither was this pursuer's acquisition onerous, as her husband was not possest of the estate at the time, and might never have possest it, but provided her out of his own estate: The obligation to give her an annuity out of Phisgill was conditional, on his succeeding to it; which must be understood of his succeeding justly, not of succeeding in fact by a bad right, which he could not hold. It is plain that the estate being evicted, he cannot be liable in warrandice on this obligation, which therefore cannot be reckoned onerous.

Pleaded for the pursuer, She founds no claim on her bona fides, but on a conveyance from the person in the right; and only uses that, with the onerosity, to save from the reduction which lay against her husband, and gratuitous or mala fide purchasers from him. Old John Stewart was proprietor of the estate, under a personal obligation, which did not disable him from disponing; he accordingly made the tailzie, and was infeft upon it, to which her husband succeeded; and when she contracted he was undoubtedly the true and only dominus of the subject, having power to contract thereon, and only liable, as representing the tailzier, in a personal obligation. It cannot be pretended the pursuer is not in bona fide, whatever some of the heirs of Phisgill might have been in; and even, with respect to them, it does not appear the process of exhibition related to the contract of marriage. The pursuer's right is onerous, notwithstanding that, if the estate of Phisgill had been evicted before it was granted her, no warrandice might have followed on the obligation for it; since, in order to a claim of warrandice, not only must there be onerosity, but the warrandice must be contravened. She acquired, by her contract of marriage, a right to have the annuity on his succession, and it was his succession on the tailzie was the condition of the obligation, which, when it happened, was the onerous cause of the right granted her. Lastly, That a marriage contract was a sufficient onerous cause to validate the disposition of an estate made by the person in the feudal right, who lay under a personal obligation to denude, was found in the case of the estate of Mackerston. See Personal and Real.

Replied, The pursuer does not claim as purchaser from a gratuitous assignee, but from a false and putative heir, who not having right, could convey none.

The Lords, 7th February, “Found, that the obligation entered into by John Coltrain of Drummorel, afterwards John Stewart of Phisgill, in the marriage settlement betwixt him and Christian Heron, pursuer, whereby he was bound to settle upon her a liferent provision, to the extent of L. 50 Sterling yearly, was onerous on the part of the said Christian Heron, and rational on the part of the said John Coltrain alias Stewart; and that he having implemented the same, by granting of the liferent infeftment to that extent, when he was in the right of fee and property in the estate of Phisgill, and his right subject to no challenge, from any thing that did or could appear upon the records, that infeftment was like wise just and onerous, and did subsist in her favour, notwithstanding the reduction afterwards brought against the right and title of the said John Coltrain, upon the latent personal obligation, contained in the contract of marriage entered into, anno 1668, betwixt John Stewart, then writer in Edinburgh, and Agnes Stewart his spouse, whereby he was bound to settle the estate he should acquire, in favour of the heirs whatsoever of the marriage; and, notwithstanding the decreet obtained in that reduction, letting aside the right of the said John Coltrain, which the Lords found could not hurt the said onerous liferent settlement made to Christian Heron, the pursuer, by her said husband, while he stood in the full right of property of the estate, conform to the infeftments and investitures thereof.”

Pleaded in a reclaiming bill, The right given to the lady is disconform to the obligation in her contract: of marriage, which was to grant her an annuity of 900 merks; whereas there is given her a liferent of a fourth part of the free rents of the estate, which cannot be supported by the obligation. The tailzie incapacitates the heirs to grant any annuities to their spouses, but solely liferent rights to the extent of one-fourth of the estate; and the contract itself provides, that no clause in it should be effectual, that was contrary to the sanctions of the tailzie, on which account the form of the lady's right has been varied; but then it is not what the husband bound himself to grant; neither is it a right agreeable to his powers by the tailzie, which restricted him to the constitution of a special locality, and is in itself anomalous, and cannot be sustained, being a liferent of the fourth part of the free rents of the whole lands, and an infeftment in the whole estate in security thereof.

The Lords refused and adhered.

D. Falconer, v. 2. No 59. p. 61.