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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mr Patrick Haldane, Advocate v Ann Haldane, and the other Five Daughters of Haldane of Lanark. [1766] Hailes 167 (27 November 1766)
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Cite as: [1766] Hailes 167
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[1766] Hailes 167
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SERVICE OF HEIRS.
Subject_3 Effect of a General Service, tanquam legitimus et propinquior hæres to a father.
Date: Mr Patrick Haldane, Advocate
v.
Ann Haldane, and the other Five Daughters of Haldane of Lanark
27 November 1766 Click here to view a pdf copy of this documet : PDF Copy
[Faculty Collection, IV. p. 379; Dict. 14,443.]
for understanding the question between the parties, the following genealogical tree is necessary:—
About the year 1450, John Haldane of Gleneaglis acquired the estate of Lanark, by his marriage with the eldest daughter of Monteath of Ruskie. In 1508, the estate of Lanark was united with the barony of Haldane. In 1650, Sir John Haldane of Haldane and Gleneaglis was killed at the battle of Dunbar, fighting in the cause of Charles the Second. He left three sons, John by his first marriage,—Mungo and Patrick by his second marriage with the widow of Sir Robert Arbuthnot of Arbuthnot. John died without issue. The pursuer is heir-male and of line of Mungo. The defenders are heirs of line of Patrick. This appears from the genealogy prefixed. There were various debts and diligences affecting the estate of Gleneaglis, comprehending Lanark. More particularly, Patrick, the third son of Sir John Haldane, had right to the following debts, in manner following:—On the 31st December 1655, he obtained an heritable bond for 3000 merks from his elder brother John. In virtue of this, he was infeft in a part of Lanark. On the 5th March 1678, he acquired right to a decreet for 12,000 merks, as the single avail of the marriage of John Haldane of Gleneaglis, to which Sir William Purves had a gift. Having deduced an adjudication against John, of the lands of Lanark and others, lying within the barony of Haldane, for the said sum,—past a charter and taken infeftment,—he was, on the 12th August 1668, preferred to the maills and duties of these lands. On the 18th February 1671, he acquired right to an apprising of Haldane and Gleneaglis, comprehending Lanark, deduced in 1654, for 9560 merks, and to a gift of recognition of Lanark, dated in 1670. On the 12th and 19th July 1672, he acquired right to a like apprising deduced in 1654, for 8376
merks, on which charter and seasine had followed. Thus, besides the gift of recognition, Patrick had right, in 1672, to the following capital sums affecting the family estate, wherein Lanark was comprehended:— 1 2
Gift of single avail,
12,000
1st apprising, 1654,
9560
2d apprising, 1654,
8376
1 2 Bond 1655,
3000
In all
32,936
merks. 1 2 It is said that at that time the rent of Lanark amounted to 71 bolls meal, and L.764 Scots, in money. This, converting the meal at L.6 per boll, is about 1563 merks per annum; at twenty years' purchase it is 31,260 merks; and, as in 1672, no land was sold at so high a rate as twenty years' purchase, it is plain that the debts in Patrick's person did certainly exceed the value of Lanark. John, the eldest son of Sir John, died without issue, and was succeeded by Mungo, his brother consanguinean. On the 13th February 1673, Patrick Haldane, for the love, &c. which he had to Mungo, his brother, and for other good respects, causes, and considerations, disponed the lands of Haldane and Gleneaglis, to which he, Patrick, had right by the apprisings and gift of recognition, to Mungo, and the heirs-male of his body, and assignees whatsoever; which failing, to him, the said Patrick, and the heirs-male of his body, and assignees whatsoever; which failing, to the said Mungo's nearest and lawful heirs whatsoever; which failing, to his heirs whomsoever, the eldest female succeeding without division; Proviso, that the whole heirs shall assume the sirname and carry the name of Haldane of Gleneaglis. In consequence of this disposition, Mungo Haldane did, on the 16th April 1673, obtain a charter of the barony of Haldane and Gleneaglis, to himself and the heirs-male of his body, and assignees whatsoever; whom failing, to Patrick Haldane of Lanark, his brother; whom failing, to the other heirs mentioned in Patrick's disposition, 13th February 1673. This charter contains a novodamus, and the holding was thereby changed from simple to taxed ward. On the 29th January 1675, a contract was entered into between Mungo and Patrick. It proceeds upon the narrative of the charter, and mentions that the charter proceeded upon the resignation of Mungo, and of Patrick his brother. It adds, that the lands therein underwritten, being part of the barony of Haldane, belonged to the said Patrick Haldane; and that it was agreed betwixt the brothers, that, after expeding the foresaid charter and infeftment, Mungo should dispone back the lands following, to Patrick, and his heirs and assignees, after specified, to be held either taxt-ward of the king, or in feu-farm of Mungo, his heirs and successors, in Patrick's option. Mungo, therefore, disponed the lands of Lanark, and others, to Patrick, and the heirs-male of his body, and assignees whatsoever; which failing, to return to Mungo and the heirs-male of his body; which failing, to the heirs-female, lawfully begotten of Patrick,—the eldest succeeding without division; which failing, to Mungo, his nearest and lawful heirs-male whatsoever; which failing, to his heirs whatsoever. For their better security, Mungo retrocessed Patrick, his heirs of tailyie, and assignees, to all the apprisings, &c. On the 16th December 1673, Patrick acquired right to an apprising of the baronies of Haldane and Gleneaglis, deduced in 1654, for 2720 merks. In 1685, Mungo died, and was succeeded by his son John. In 1686, Patrick died, without having made up any titles to the estate of Lanark. John Haldane, his son, was, at that time, an infant under the tutory of John the son of Mungo. On the 6th December
1693, John, the son of Patrick, was, by the direction of his tutor, John, the son of Mungo, served nearest and lawful heir to his father. Before John made up titles to the estate, he acquired certain incumbrances affecting it; particularly, 1st January 1711, a disposition, to himself and his heirs and assignees, of the lands of Saughans, which had been wadsetted in 1654 for 1500 merks: 3d and 7th December 1719, a like right to the half of the lands of Cassivoir and Drunniverig, which had been feued by his grandfather in 1627. On the 26th July 1726, he obtained a charter from the crown in favour of himself, and the heirs-male of his body, and assignees whatsoever, &c. in terms of the contract 1675. On the 27th October 1726, he was infeft. After his titles were completed, he acquired the following rights:—3d January 1740, the parsonage lands of Ruskie and Lanark; 22d November 1729, Miln and Milnlands of Lanark; 23d February 1764, vicarage teinds of certain parts of the estate of Lanark. He took the dispositions to all those parcels, either to himself and his heirs, or to himself and his assignees. John Haldane, and his eldest son, Alexander, engaged in the rebellion 1745. They were both excepted out of the act of indemnity, and billa vera was found against both. On the 3d December 1746, John executed a deed, whereby, upon the narrative of love and favour, he disponed the estate of Lanark to his second son, Patrick. This disposition bears an assignation to the writs, after the granter's death; and it is thereby declared, that he had delivered the whole writings of the estate to a trustee, and he dispensed with the delivery to Patrick himself. In 1750, John, and his son Alexander, against whom billa vera had been found, went to France, and afterwards returned to Scotland. On the 4th December 1757, Patrick executed a disposition in favour of his six sisters, equally amongst them, and their heirs and assignees, equally among them; reserving his own and his father's liferent, and a power to alter. In 1761, Patrick died. In 1763, Alexander died. In 1765, John died. In 1765, Mr Patrick Haldane was served heir-male and of provision in general to Patrick Haldane of Lanark, his grand-uncle, that he might thereby establish in himself a right to the procuratory in the contract 1675. It was agreed that all objections, at the instance of John's daughters, should be reserved. Mr Haldane, having thus made up his titles, insisted in a reduction of the disposition granted by John to his son Patrick, and by Patrick to his sisters. The sisters, in their turn, insisted in a reduction of Mr Haldane's rights. The processes were conjoined.
On the 17th December 1765, The Lord Auchinleck, Ordinary, pronounced the following interlocutor:—“Finds, that, by the contract 1675, Patrick Haldane, and his heirs, had the absolute and unlimited right to the estate of Lanark, and were at full liberty to alter the order of succession, and dispone the estate to whom they pleased; and that, in respect the estate is, by that contract, confessed by his brother Mungo, the other party contractor, to have been antecedently the property of Patrick, and to have stood only in his, Mungo's, person, as a trust for behoof of Patrick, and there is no restriction from altering the order of succession in the deed,—that it has no relation to a settlement made by Mungo, so is not of the nature of a mutual tailyie; and, in respect the clause of return to Mungo, and the heirs-male of his body, is only failing Patrick, and the heirs-male of his body, and assignees whatsoever, finds, that, as Patrick did not expede a seasine on the precept contained in the said contract, John Haldane,
his son, upon the father's death, made up a proper and legal title to the personal right, which was in his father, by obtaining himself served and retoured heir in general to his deceased father; whereby he is cognosced legitimus et propinquior hæres dict. Patricii Haldane, ejus patris, which ascertained upon record not only his universal right, but also that he was heir-male of the body of Patrick, and superseded the necessity of a service as heir-male: And finds the disposition by John Haldane to his second son Patrick, his heirs and assignees whatsoever, bearing delivery to a trustee, and dispensing with the not delivery to Patrick himself, habilely conveyed the estate to the said Patrick, and his heirs general, which must now be taken up by the heirs general of Patrick, or by his assignees. And as the six defenders against Mr Patrick Haldane's reduction, who are the daughters of John, and sisters of Patrick, are both heirs to Patrick their brother, and have a disposition from him, assoilyies them from the reduction brought against them by Mr Patrick Haldane; and finds he has no right to the lands and estate of Lanark, and others, described in the summons and in the title-deeds of that estate; but that the same belongs to the said six heirs and disponees of the deceased Patrick; and decerns and declares accordingly. Pitfour. Before the year 1738, this difficulty did not occur; it then occurred in the case of Eshieshiels. A service of heir-male to his father did not carry a right as heir-male of a marriage; for the one title did not necessarily imply the other: but here legitimus et propinquior hæres patri, implies heir-male, though it does not necessarily imply heir-male and of line: Thus, suppose a man to have two sons, the eldest dies, leaving a daughter; the daughter will be the heir of line, the second son will be heir-male. In the case of Sir Robert Hay of Limplum, it was found that a general service might imply of provision, though there was no reference to the provision.
President. Here no mistake could be: constabat what the person served was. Dangerous to overturn investitures upon specialties.
The Lords adhered without a vote.
For Mr Haldane, H. Dundas. Alt. D. Græme.
The electronic version of the text was provided by the Scottish Council of Law Reporting