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.

Agnes Stewart of Phisgill, and John Hathorn her Husband,
v.
The Children and Creditors of Captain John Stewart, alias Coltrain, of Drummorel

Date: 4 December 1760
Case No. No 25.

A subsequent suit arose out of the case above. The granter of the liferent had, before acquiring the estate, afterwards evicted, given security to a certain extent on another estate. To that extent the pursuer of the reduction obtained relief.

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John Stewart of Phisgill, in 1668, settled his estate, in his contract of marriage, to the heirs of the marriage; and his eldest son having died without issue, the pursuer, Agnes Stewart, only child of Robert, the second son, who also predeceased his father, became the heir of the marriage, entitled to take the estate, upon her grandfather's death, under the said contract.

John Stewart, however, in 1719, executed a deed of settlement in the form of a strict entail, whereby he disinherited his grand-daughter Agnes, and provided his estate of Phisgill to his own surviving sons and daughters seriatim, and their issue.

John Stewart soon after died; and was succeeded, in virtue of this entail, by William, his third son; who having likewise soon after died without issue, was succeeded by his eldest sister: and she possessed the estate till her death, in the year 1742.

During the possession of this eldest daughter of John Stewart, John Coltrain of Drummorel, eldest son of the second daughter of John Stewart, and next presumptive heir in the entail to his aunt, who never was married, entered into a marriage-contract with Mrs Christian Heron; whereby, in consideration of 9000 merks of tocher, he became bound to infeft her in an annuity of 600 merks, to be uplifted out of his lands of Drummorel: And it was further provided, That in case he should, at any time during the marriage, succeed to the estate of Phisgill, as heir of tailzie to his aunt, the lands of Drummorel should be disburdened of the above annuity, and he should be obliged to infeft his spouse in an annuity of 900 merks, payable out of the estate of Phisgill, in case of children of the marriage, and 1200 merks in the event of no children.

Upon his aunt's decease, John Coltrain obtained himself served heir in the estate of Phisgill, in terms of the tailzie; and having completed his titles by infeftment, he, in 1734, granted a bond of provision, upon the recital of his marriage-contract, and of the tailzie of Phisgill, whereby the heirs were allowed to provide their wives in competent liferents, not exceeding one-fourth of the free rent; and that he was resolved to provide his spouse in an additional jointure out of his lands of Drummorel, over and above her liferent of the fourth part of the free rent of Phisgill, his intention being, that she should have a yearly liferent of 1200 merks in case of children, and 1500 merks in case of none; therefore he provides her to the fourth part of the free liferent of Phisgill; and further obliges himself to infeft her in a yearly liferent of 500 merks, uplistable out of Drummorel, at least so much thereof as, with the fourth of the rent of Phisgill, might completely make up the liferent provision to the amount aforesaid, of 1200 or 1500 merks.

Upon this bond infeftment followed, both in the lands of Phisgill and Drummorel; and the said John Stewart, alias Coltrain, continued in the undisturbed possession of the estate of Phisgill for several years after.—But Agnes Stewart, the pursuer, having discovered that she had a right to that estate by her grandfather's contract of marriage, which could not be defeated by any after gratuitous deed, insisted in a reduction of the entail, and obtained judgment in her favour upon the 15th July 1743; which was affirmed in the House of Lords.

Upon the death of John Coltrain, a question having ensued between his relict and Agnes Stewart, concerning the validity of her liferent-infeftment upon the estate of Phisgill, No 24. p. 1705. the Lords, upon the 22d February 1749, “found, That the obligation entered into by John Coltrain of Drummorel, afterwards John Stewart of Phisgill, in the marriage-settlement betwixt him and Mrs Christian Herron, the 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 the liferent infeftment to that extent, when he was in the right of see and property of 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 likewise just and onerous, and does subsist in her favour, notwithstanding of the reduction afterwards brought, of 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, betwixt John Stewart, writer in Edinburgh, and Agnes Stewart, his spouse, whereby he was bound to settle the estate he should acquire, in favour of the heir whatsomever of the marriage; and notwithstanding the decreet obtained in that reduction, setting aside 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 investitures thereof.” This decree was affirmed in the House of Lords; and, in consequence thereof, the relict continued to draw her liferent, to the extent of L. 50 Sterling, out of the estate of Phisgill, and the remaining 300 merks out of her husband's paternal estate of Drummorel.

Agnes Stewart and her husband afterwards brought an action against John Coltrain's children, and the trustees for his creditors, concluding, That as he had left a separate estate, descendible to his heirs at law, and which had been originally burdened with his wife's liferent, the defenders should be obliged to free, relieve, and disburden the pursuer and her estate of Phisgill, of the aforesaid life-rent-annuity.

Answered for the defenders: The liferent provided by John Coltrain to his widow, was, in every respect, rational, and even moderate; neither is there the smallest appearance of his having had in view to do any wrongful act, to the prejudice of his heirs, who might succeed in the estate of Phisgill, or indeed that he had any apprehension, that he was to be excluded, by other heirs, from the possession of that estate. He was the only person that could be considered as proprietor of the estate at the time; and it has already been found by the Court of Session and House of Lords, That the security granted by him to his wife was an onerous and valid deed. It does not therefore appear, upon what footing he or his heirs can be subjected to a claim of damages for granting this deed. Had his relict, in place of getting a liferent-annuity, succeeded to a terce of the lands in which he stood infeft, by his decease, before the challenge was brought, this terce must have been sustained to exclude the pursuer; and, in that case, it seems plain, that there could have been no pretence to claim relief or repetition of the rents so drawn by the relict, against any separate estate left by the husband. It is true, the pursuer prevailed in a reduction of the tailzie, upon a personal ground of challenge, competent to her by her grandfather's contract of marriage; but this reduction could have no effect retro. John Coltrain was the real proprietor of the estate by all the investitures, before his right was brought under challenge; and consequently, every lawful act of administration performed by him during that period, must have the same effect as if the challenge had never been brought. Suppose, for example, he had set long tacks at the old rent, in terms of the tailzie, and the pursuer, after prevailing in the reduction, had found that she could get double the rent, if the tacks were open; there is no doubt that these tacks would have been sustained, and the pursuer thereby deprived of a profit which she might otherwise have reaped; and yet it seems impossible, that this could have founded her in any claim of damages.

The case of borrowing money is somewhat different. For there it might be said, that the money was still in his hands, and he ought not to be allowed to retain it. But here there is nothing in the hands of John Coltrain, or his heirs, in consequence of the liferent-infeftment granted to the widow. Nothing has been taken out of the estate, which either he or his heirs can be called upon to restore. The liferent provision was suitable to his supposed circumstances at the time; and neither he nor his heirs can be said to have profited by it.

Replied, 1mo, It seems admitted, that if John Coltrain had granted an infeftment upon this estate, in security of borrowed money; though the creditor would have been secure, the pursuer would have had good action against John Coltrain, and his proper estate, to relieve the estate of Phisgill of such incumbrance; because in so far he would have profited in his private estate and patrimony. Now, upon this very principle, the pursuer falls undoubtedly to be relieved, in so far as respects the 600 merks originally secured upon Drummorel. For it is plain, that John Coltrain, by transferring this original provision to the estate of Phisgill, was in so far profited in his own private estate.—600 merks was agreed to be a suitable provision out of the estate of Drummorel, and in so far that estate ought still to take the burden, according to the defender's own principles.

2do, The pursuer apprehends, she is well-founded in her claim for a total relief. The favour of the law to onerous purchasers, is, in many cases, very great, and no less just: But that a party, who has charged an estate which did not of right belong to him, should be entitled to the like favour, in order to keep his proper estate indemnis, seems unreasonable, and contrary to the established principles of law. A father who, by his marriage-contract, provides an estate to the heir of the marriage, remains fiar, and every security granted by him to creditors or onerous purchasers, will be good; but if he has a separate estate, the heir of the marriage is entitled to relief. In the same way, purchasers and creditors contracting with an heir of entail, who neglects any of the formalities prescribed by the act 1685, are secure; but the next heir of entail has action of relief against the other representatives of that heir, who charged the tailzied lands with his proper contractions. For the same reason, though John Coltrain's infeftment enabled him to grant an effectual provision to his wife, and her own, bona fides protected her; yet his title being liable to challenge, and afterwards reduced, his separate estate must be liable in relief of all incumbrances laid by him on the estate of Phisgill.

“The Lords found the pursuer entitled to relief of the annuity of 600 merks originally contracted to be paid out of the estate of Drummorel, and thereafter transferred to that of Phisgill; but not entitled to any relief of the additional 300 merks, imposed on Phisgill by the contract of marriage.”

Pleaded in a reclaiming bill for the defenders:—It seems to have been the intention of the Court, to lay no greater burden upon the lands of Drummorel than the annuity of 600 merks, with which it was originally burdened by the contract of marriage; but as Drummorel at present stands charged with 300 merks of the lady's annuity, by the bond of provision in 1734, the above interlocutor, by transferring 600 merks from Phisgill to Drummorel, burdens this last estate with 900 merks of the annuity, and leaves only 300 merks as a burden upon Phisgill.—The defenders admit, that in so far as John Coltrain can be said to have profited in his private estate and patrimony, by an incumbrance laid on the estate of Phisgill, he and his heirs are liable in relief to the pursuer.—In so far, therefore, as he freed his own estate of a jointure to his wife, suitable and adequate to the circumstances of that estate, he may be considered as a profiter, and may be obliged to relieve the estate of Phisgill; but to no greater extent; because he was in no shape lucratus, by establishing an additional jointure upon the estate of Phisgill, suitable to that estate, of which he was truly proprietor at the time. The pursuer, therefore, ought not to be entitled to have her lands relieved of any more than 300 merks of the above annuity; which, added to the 300 already paid out of Drummorel, will make a burden upon that estate of 600 merks yearly, being the amount of the original annuity.

Answered, By the judgment of the Court in 1749, sustaining the widow's claim to an annuity out of the estate of Phisgill, her claim is not sustained to the full extent of her husband's postnuptial deed, but only in so far as it was onerous, viz. to the extent of 900 merks contained in the contract of marriage. It is therefore a point adjudged, that the widow had no title to demand the additional 300 merks out of the estate of Phisgill. This was a voluntary gratuitous deed, which could not be effectual against the estate, after the title of the granter was reduced; and therefore, in this question, the matter must be considered as if no additional annuity had been granted.

‘The Lords, on the 21st January 1761, adhered.’

Act. Garden and Lockhart. Alt. Ferguson and Advocatus. Fol. Dic. v. 3. p. 92. Fac. Col. No 253. p. 461.