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Page: 497↓

Nisbet's Trusts, &c.

v.

Halket No. 162.

Court of Session

2d Division F.

Feb 20 1835

Ld. Medwyn, Lord Justice-Clerk, Lord Glenlee, Lord Meadowbank.

Nisbet's Trustees, and Mrs Fergusson and Husband, Pursuers.— Rutherfurd— Dundas. Sir Charles Halket, Defender.— D. F. Hope— Cuninghame.

Subject_Passive Title—Service—Entail.—

1. Circumstances in which a party, serve as an heir of entail, was held liable in relief, under a clause of warrandice, against future augmentations granted by a remote ancestor. 2. Question as to the effect of a service in constituting a passive title, where nothing is thereby taken.

In 1682, John Wedderburn of Gosford sold to Sir John Nisbet of Dirleton the lands and barony of Innerwick, with the teinds thereof, which teinds he in the disposition granted by him “bound and obliged himself and his heirs, as well male as of line, taillie, conquest, and provision, and all others, his heirs and successors whatsomever, conjunctly and severally” to warrant, inter alia, from all future augmentations of stipend. Of the price, 62,000 merks were allowed to remain a burden on the lands in form of a wadset. Sir John Wedderburn died a few years after the date of this disposition without issue, and was succeeded by his brother, Sir Peter Wedderburn, who made up titles to him by service, as heir of line, in 1688. Sir Peter married Dame Janet Halket of Pitfirrane, by whom he had a numerous family; and, of date September 9, 1706, the spouses executed mutual tailzies of their respective estates of Gosford and Pitfirrance, in the form of procuratories of resignation in favour of themselves in liferent, and the series of heirs to which they were respectively destined in fee. By the tailzie of Pitfirrane, that estate was destined to Peter, the eldest son, afterwards Sir Peter Halket, and the heirs of his body, male and female, in their order; whom failing, to Charles Wedderburn, the second son, and so on through the rest of the family, and to a special series of heirs; whom all failing, to Lady Halket's own heirs and assignees. Gosford, again, was settled on Charles, the second son, and the heirs of his body, male and female, in their order; whom failing, the younger children ; whom failing, Peter, the eldest son; whom all failing, Sir Peter's nearest heirs and assignees. Both tailzies contained a prohibition, properly fenced, against gratuitously altering the succession, but there was no prohibition against selling or contracting debt. Each also contained a provision against the two estates being held together—that in the tailzie of Gosford declaring, that, if the succession to Pitfirrane should open to Charles, he should have his option to retain Gosford or to take Pitfirrane, denuding of Gosford in favour of the next heir, who should be “always bound and obliged to free the said Charles, and to disburden the estate of Pitfirrane of any debts or deeds contracted or done by the said Charles during his remaining in right of the estate of Gosford, before the right of succession to the said estate of Pitfirrane.” Sir Peter further, in 1725, executed a mortis causa disposition, in favour of Charles, of certain specified bonds and sums of money, including the wadset over Innerwick above mentioned, “and also, generally, all goods and gear, debts, and sums of money, heritable and movable, principal, penaltys, and a' rents qtsoever, which pertained, or were addebtted to the said Sir Peter Wedderburn, my fayr, or the said John Wedderburn, my broyr, so far as I have any right or pretence thereto;” specially declaring “that the said Charles Wedderburn, my second son, and his foresaids, by their acceptation hereof, are, and shall be burdened with, and bound and obliged to pay, my heall just and lawful debts whatsoever, that shall happen to be resting at the time of my decease, excepting allenarly in so far as the said Peter Halket, my eldest son, stands bound to pay, by a bond of relief granted by him to me.”

Sir Peter Wedderburn died in 1746, and, on this event, Charles Wedderburn, his second son, entered into possession of Gosford, and of the property conveyed by the disposition 1725, but without making up any titles, and he died in 1754, leaving two sons, John and Henry. John, the eldest, made up titles to him by service, as nearest heir-male, and of line, taillie, and provision, and thereby taking up the unexecuted procuratory in the tailzie of Gosford, executed in 1706, he obtained himself infeft therein, In 1755 he sold to Lord Elibank, for the price (as mentioned in the disposition) of £8854, 11s. 8d,, part of the estate of Gosford, comprising the lands of Ballencrieff and others; and, in 1770, the estate of Pitfirrane having opened to him by the failure of the heirs of the body of Sir Peter Halket, his uncle, after a course of succession not necessary to be detailed, he served heir of tailzie and provision to the last descendant in possession in that estate, assumed the name and title of Sir John Halket, and executed a devolution of Gosford in favour of his younger brother, Henry Wedderburn, it having been previously agreed on betwixt them that his debts, with which Henry was to be burdened, should be estimated at £15,000. Alongst with the estate of Gosford, he also conveyed to Henry the 62,000 merks wadset, “to which contract of wadset” (as the conveyance bore) “the said deceased Sir Peter Wedderburn Halket, my grandfather, had right, as heir served and retoured to the said John Wedderburn of Gosford, his brother, on the day of , and to which the said deceased Charles Wedderburn, my father, had right, by disposition from the said Sir Peter Wedderburn Halket, his father, of date,” &c. “and to which I have right as heir in general, served and retoured to my said father before the bailies of Edinburgh, 20th day of June, 1724.” Henry Wedderburn died in 1777, in very embarrassed circumstances, and a ranking and sale of Gosford having been brought by his daughter, Sir John Halket entered a claim for the £15,000 of debts devolved by him on Henry, as above mentioned, with the interest thereon. This claim was preferred in the ranking, and Sir John accordingly drew the sum of £17,205, being the amount with interest, partly in a share of the price, and partly in a reconveyance of the 62,000 merks wadset. Sir John died in 1793, and, in the following year, his son, the defender, Sir Charles Halket, expede a service as “legitimus et propinquior hæres linæ talliae et provisionis in speciali dicto demortuo Domino Joanni Halket de Pitfirrane, Baronetto, patri suo, in totis et integris dictis terris et baronia de Pitfirrane,” &c.

In the mean while, the lands of Innerwick, conveyed in 1682 by John Wedderburn of Gosford to Sir John Nisbet of Dirleton, had continued in the Nisbet family, but no augmentation of stipend, so as to give rise to a claim of relief under the clause of warrandice in the disposition formerly mentioned, took place till 1790, when an augmentation was granted, part of which was localled on the lands of Innerwick by final decree, of date June 23, 1799. In this process, the late Mr Nisbet obtained a diligence for citing Sir John Halket, who was cited accordingly, and gave in a minute, stating, that he had reason to believe that he was entitled to relief from the children of Henry Wedderburn, and craving a diligence to cite them. A diligence was accordingly granted, and executed against these parties; but no farther steps seemed to have been taken by Mr Nisbet with reference to his relief. In 1807 a second, and in 1823 a third augmentation were granted, a portion of each of which was finally localled upon the lands of Innerwick in 1825. The excess of stipend, over and above the amount payable out of the lands at the date of the original conveyance in 1682 having been paid by Mr Nisbet during his life, and after his death, which happened in 1822, by his daughter and heiress, the pursuer, Mrs Fergusson, his trustees alongst with Mrs Fergusson, and her husband, in 1832, raised the present action of relief against Sir Charles Halket, under the warrandice contained in the disposition of 1682, on the ground that he represented the granter thereof.

It was not seriously disputed that the warrandice was effectual against augmentations, and that (as decided in the late case of Horne v. Sinclair ¹) the right had not been cut off by prescription, there having been no eviction by augmentation till within the last 40 years; but the defence mainly relied on was, that Sir Charles Halket did not represent the granter of the disposition, so as to be liable in the obligation of warrandice therein contained.

The Lord Ordinary reported the cause on Cases.

Pleaded for the Pursuers—

John Wedderburn, the granter of the disposition libelled on, was sueceeded by his brother, Sir Peter Wedderburn, who served heir of line

_________________ Footnote _________________

¹ Jan. 23, 1835 (ante, 296).

to him—as such took up the estate of Gosford, and undoubtedly incurred a general representation to him. Sir Peter having married the heiress of Pitfirrane, by whom that estate was destined to their eldest son, executed in favour of Charles, their second son, a procuratory of resignation of his paternal estate of Gosford, which (although gratuitous alteration of the order of succession was prohibited) was transmitted otherwise in fee simple. To the extent of this estate, therefore, Charles, in respect of this gratuitous conveyance in his favour, was undoubtedly liable (whether primarily to his elder brother or not is of no consequence, the elder branch being now extinct) in the obligations incumbent on his father. But further, his father, by a separate mortis causa deed, conveyed certain specific sums and bonds, including the 62,000 merk wadset, and generally, all his estate to which he had right through his own father or brother, to Charles, under the express burden of being liable for his whole debts whatsoever, except certain specific obligations, for which his eldest son had granted bond. Charles took possession under these deeds, though without maKing up titles, and this undoubtedly fixed on him the obligations incumbent on his father, Sir Peter, including, of course, the personal obligation of warrandice in the disposition of Innerwick, to which he (Sir Peter) had become subject by service, as heir of line of the granter. This obligation being fixed against Charles, was, without doubt, transferred against his eldest son John, afterwards Sir John Halket, by his general service as heir of line to Charles. Again, Sir John not only took possession of the estate of Gosford, but also of the other property left by Sir Peter Wedderburn, and, in particular, the wadset which, in his after disposition to his brother Henry, he narrates that he had right to by his service to his father. Further, he sold a considerable portion of the estate of Gosford, and afterwards, upon taking up Pitfirrane, and devolving Gosford on his younger brother Henry, he also burdened him in terms of the provision of the tailzie in reference to such an event, with the debts contracted by himself while proprietor of Gosford, amounting to £15,000; and the whole of this sum, with interest, he afterwards drew out of the proceeds of Gosford in the ranking and sale. There was thus no absolute divesting of himself of the whole rights which had belonged to him as heir in the estate of Gosford, so as to give rise to a plea that his obligation ceased with his possession, even if such were well founded, for he retained a large portion of the value of the property in the proceeds of the sale to Lord Elibank, and in the amount paid out of the price in the ranking in satisfaction of his debts, while, in regard to the wadset, there was no proper devolution. Thus, the obligation remained fixed against Sir John; and the only question remaining is, whether it has been transferred against the defender, Sir Charles. Now, he has served to his father not merely as heir of tailzie and provision, but also as heir of line, which, whatever may be the result in certain cases in questions inter heredes, does necessarily import a representation quoad third parties, even when nothing is actually carried. But independently of this service as heir of line, his having taken up Pitfirrane imports an universal representation to his father. Pitfirrane is truly a fee-simple estate, the prohibition being against gratuitous alienation only, and it might have been attached for all the debts or obligations of Sir John. Consequently the defender, by taking it up, though as heir of tailzie and provision, subjected himself in every obligation incumbent on his father, and this having been so, he must necessarily be subject thereto.

Pleaded for the Defender—

The first point to be considered is, whether the obligation come under by Sir Peter Wedderburn, as heir of his brother, John Wedderburrn, granter of the disposition, passed at all against his descendants. Now there was no service by any party whatever to Sir Peter Wedderburn, and the obligation certainly was not transferred against his eldest son, Sir Peter Halket, who never represented him in any way, having merely taken up the estate of his mother under her procuratory of resignation in his favour. Then as to Charles Wedderburn, the second son, he was not heir alioqui successurus, and by taking the estate of Gosford under the procuratory in his favour (which was truly onerous as one of two mutual tailzies) he could not incur a general passive title, being a stranger to the succession, and in exactly in the same situation with any third party who had obtained a disposition, but who, even if gratuitous, would thereby have incurred no representation, and who, by infeftment and possession for forty years, would have excluded any creditors of the granter from attempting to set aside his right, and so make the property attachable for the granter's debts. Then as to the mortis causa assignation subject to the burden of Sir Peter's debts, this never could import an universal representation or liability for more than the value of the property assigned. There were, however, undoubtedly debts left by Sir Peter, and it is out of the question, at this distance of time, to require proof that they did not exceed the effects assigned, and, at all events, no universal passive title was thereby created in the person of Charles Wedderburn to be transferred against his representatives. But assuming that an obligation to the extent of the value of Gosford, and the other property left to him by Sir Peter, passed against Charles, and was taken up by his son Sir John Halket alongst with the estate of Gosford, still when he denuded of the estate of Gosford in favour of his younger brother, then become the heir under the tailzie, he became free of any obligations arising from having taken up the property, Henry being thereafter in all respects substituted in his stead. Finally, the present defender has not incurred an universal representation to his father. His service to him was a special service in the lands of Pitfirrane alone, and although in the retour he is described as heir of line, it is only with reference to his character as heir of tailzie and provision in Pitfirrane, being such in respect of his being heir of line, and the service does not import a service as heir of line, but merely as heir of tailzie and provision in that particular estate. At all events he took nothing as heir of line, and, as decided in the case of Lord Fife, ¹ such a service, when nothing is to be taken, does not import representation. He took Pitfirrane alone, and no part of any property which Sir John may have been supposed to have held or retained as succeeding to his father Charles Wedderburn, and consequently the defender has in no respect subjected himself to the claim now insisted in.

_________________ Footnote _________________

¹ March 7,1828 (ante, VI. 698).

Lord Justice-Clerk.—The obligation granted by John Wedderburn of Gosford, in his original disposition of the lordship of Innerwick, &c. to Sir John Nisbet of Dirleton, the ancestor of the pursuer, Mrs Fergusson, dated 7th August, 1682, effectually bound the granter, “and his heirs, as well male as of line, tailzie, conquest, and provision, and all others his heirs and successors whatsomever,” to warrant to his disponees “the teinds. parsonage, and vicarage of the lands and baronies thereby disponed, from all future augmentations of ministers' and schoolmasters' stipends, and from all other impositions and burdens, and all evictions of the said teinds,” There is, therefore, no question as to the nature and extent of the obligation under an exception specified in the warrandice not at all applicable to this case, and as a claim has been sustained against these teinds in certain augmentations in the parish of Innerwick to the localities of which the defender was cited, notwithstanding which the localities have been fixed burdening the pursuer to the extent specified in the summons, there can be no doubt that the eviction under the warrandice has accrued, and the only question is, whether the defender, Sir Charles Halket, who has been called in this action of relief as representative of the original granter of the obligation, is liable to fulfil that obligation of warrandice? No question arises deserving any attention, as to whether the obligation is cut off by prescription or otherwise, as the claim could never have emerged or arisen at all till the augmentations and burdens on the teinds were made effectual, and nothing has occurred to prevent the claim from being made effectual, if the liability of the defender has been made out. Now, looking to the facts in this case on the record, and particularly in the productions which have recently been discovered and produced in support of the averments in the record as to the representation incurred by the defender to the original granter of the obligation of warrandice, I am of opinion that his liability has been made out, and that the pursuer is entitled to decree. 1. There can be no doubt that John Wedderburn of Gosford, the granter of the obligation, was succeeded by his brother Peter in 1688, by a service as heir of line, and universally in all his obligations, while he inherited his succession in fee-simple. This is established by his retour as nearest and lawful heir in general. In this situation it must be held to be clear, that by no device or contrivance of an entail or otherwise could this liability to fulfil the obligation of John Wedderburn, in providing or destining the estate of Gosford, be got rid of or extinguished by the act of his brother Sir Peter. 2. It did so happen, however, that Sir Peter, having married the heiress of Pitfirrane, which was to descend to their eldest son, chose to settle, by a deed of provision or tailzie, as it is called, the estate of Gosford on the second son Charles. But while the union of the two estates was guarded against—yet if the proprietors of Gosford should come to succeed to Pitfirrane—that deed provided that the debts of the heir renouncing should be chargeable on Gosford. This entail contained no effectual prohibition against contracting debts or selling the estate. But some years after this, Sir Peter executed another very material deed, narrating that, for the better preserving of his name and family, he had settled his estate of Gosford on his second son Charles ; then stating what he had done for his eldest son Peter; and then he dispones to Charles the sums and bonds there mentioned, and particularly one debt of 62,000 merks, and the sums of £3000 and £2000 Scots, and expressly burdening him with the payment of his “heall” lawful debts that shall be resting at the time of his death. Charles, in 1746, entered into possession of Gosford, and possessed, without making up a title, till 1754, when he died ; and of course had an action, under his uncle John's obligation, arisen during his life, unquestionably he would have been liable as the holder of his father's estate, which was undeniably liable for it, as well as having been benefited by his father's succession, unless he could have shown that his elder brother Peter was liable under his right to the plenishing and furniture. But ultimately it is well known, that both lines of succession came to unite in the person of Sir John Halket, the father of the present defender. And I cannot but hold, that, under the circumstances that took place, and the full benefit that he ultimately received from the estate of Gosford, which became answerable for the large sum of debt which he recovered out of its price, his liability under the obligation in question is fixed beyond all doubt. Sir John was Charles Wedderburn's eldest son, and served heir of line, tailzie, and provision to him, acquiring his right to the procuratory in the settlement of 1706, followed by charter and infeftment, thus taking directly the benefit of the investiture of his grandfather in Gosford, and consequently liability for all his debts and obligations. Under that investiture, it now appears also that he actually availed himself of the power of selling, and sold the large property of Ballencrieff for £8854 to Lord Elibank. he also possessed Gosford down till 1770, when he succeeded to Pitfirrane, and gave up Gosford to his younger brother Henry, but under burden of his debts, amounting to £15,500, which ultimately, with the interest, became nearly equal to the value of the estate. All this is proved by the productions. While Henry became bound for the debt, Sir John conveyed to him the wadset for 62,000 merks—referring to the very words of his grandfather's conveyance, “and to which I have right as heir in general, served and retoured, to my said father.” After the estate became bankrupt, and was judicially sold, Sir John. Halket claimed and made effectual his debt for £17,205. These were debts due to him and his predecessors, whom he represented, as the contract bears. Holding that, under the above circumstances, there could exist no legal doubt that the late Sir John Halket, if called upon in his lifetime, was liable to fulfil the obligation of warrandice libelled on, the only remaining question is, whether the present defender must not be equally so? Now, seeing that he was served heir of line, tailzie, and provision to his father, and that he succeeded to his estate of Pitfirrane, which, though held under a destination and sort of tailzie, is not secured by an effectual entail; and not thinking it necessary to lay much stress on the conveyance of certain moveables in his favour, I cannot see any ground for doubting that the defender, as representative of his father, became amenable to the conclusions of this action. There is not the shadow of doubt, that, independently altogether of his mode of making up his titles and long possession of Gosford, the late Sir John Halket was lucratus by the benefit of having his debts, for which he was liable, paid out of the price of that estate. And that benefit is also now participated in by the defender, his son. I am therefore for decerning against him.

Lord Glenlee.—I am also for decerning in terms of the libel. To be sure, if the case had rested mainly on Sir John having once taken up the right to Gosford, and afterwards his right having become defeasible, I would have doubted if the obligation could have been perpetuated, notwithstanding his having denuded, and his right having evanished. It would have required great consideration, whether his passive title had not also evanished. But when I see what appears as to the wadset right, I thought it unnecessary to consider the other question, as it fixes that Sir Peter represented John Wedderburn, the grantor, and that Sir John Halket had right to it, as heir in general, served and retoured, to his father, Charles Wedderhurn. If Sir John had still this wadset, it is impossible but that he would have been liable to the extent of the wadset at least. And what difference does it make that, as heir of line to his father, he made it over to Henry, and got value for it from him? This representation is therefore fully made out. It makes no ditterence that he got it back to the amount of his claims in the ranking. The original sin of possessing under the wadset and selling remained. This fastens the representation on Sir John, and Sir Charles, the defender, again represents him. It is said as to this last point, that a service as heir of line, where nothing is taken, is not attended with any effect; and that lately we had a case, where an exception to the effect of a general service was sustained. But it is a general rule, that, unless you can show effectual grounds for setting aside the effect of a service as heir of line, it must stand good as a passive title ; and Sir Charles might have taken something by it. But then comes the other point, Esto, nothing is to be rested on the general service as heir of line, he took up Pitfirrane as heir of Sir John, who was under this obligation, and so he must also be liable in it.

Lord Meadowbank.—I entirely agree.

Lord Medwyn.—I am entirely of the same opinion. The only question of difficulty I had, was as to Sir John Halket taking up Pitfirrane, and devolving Gosford on his brother, if by a nearer heir emerging, passive representation would have been lost. But here he had his option, and chose Pitfirrane, and was not obliged to give it up to his brother, and it looks as if he had sold it. It was truly a sale, and he did not get quit of the representation by choosing the more valuable estate of Pitfirrane, and giving Gosford to Henry. I have no hesitation in saying, that, as Sir Charles represents his father, he is liable to the claim now made.

The Court accordingly found the defender liable in relief, and remitted to the Lord Ordinary to ascertain the amount due.

Solicitors: Dundas and Wilson, C.S.—W. H. Sands, W.S. Agents.

SS 13 SS 497 1835