Scottish Court of Session Decisions

Sir William Hamilton, on a charge and decree of adjudication against him, described as the heir to the above-mentioned Sir William Cunninghame, on a trust-bond granted to James Ferrier, writer to the signet: That the said Crown charter having been conveyed by Sir William Hamilton to James Ferrier and Lieutenant-Colonel Ilay Ferrier, these parties were infeft; and upon the said infeftment and superiority were enrolled as freeholders, in the county of Ayr, in the year 1780: That, in the year 1776, the said James Ferrier, and Colonel Ilay Ferrier, raised, as superiors, a process of declarator of non-entry, and of maills and duties, against the Countess of Crawfurd: That this process was allowed to fall asleep before any step of importance was taken in it: That in the year 1791 Colonel William Fullerton, then of Fullerton, and the said Sir William Hamilton of Westport, were served heirs-portioners to the foresaid Sir William Cunninghame of Cunninghamehead: That in the year 1798 the said William Fullerton and Sir William Hamilton granted a disposition and assignation, alongst with the foresaid James Ferrier and Colonel Ilay Ferrier, by which all these parties conveyed the said superiorities, with all right, title, and interest, they respectively held in them, to Alexander Walker, who made up titles to them by Crown charter in 1799, and was also enrolled in the roll of freeholders of the county of Ayr: That Alexander Walker was succeeded, in the year 1802, by his son William Fullerton Walker, from whom the right to the said superiorities was transmitted to Mrs Zelica Cheshire, and her husband William Wallace, now insisting as pursuer in these actions: That the process of maills and duties, and declarator of non-entry, raised in the year 1776, was wakened, first by Alexander Walker, in the year 1804, and afterwards by William Fullerton Walker, in the year 1824: That afterwards, in the year 1829, the said William Fullerton Walker brought an action of reduction for setting aside the Crown charter obtained in the year 1774 by the Countess of Crawfurd, and the title following thereon; and that a similar action was brought by Mrs Zelica Cheshire, who at that time had obtained right to part of the superiorities; and that these processes of reduction were conjoined with the wakened process of declarator: Finds, That the title of the pursuer in the reduction, founded on the joint conveyance by the Messrs Ferrier and both the heirs-portioners of Sir William Cunninghame the superior, has been sustained by the Court: but Finds, That the title of the Messrs Ferrier, at the time of raising of the action of declarator of non-entry in 1776, was defective, and insufficient to support the said action, being a title made up on a deduction of propinquity, admitted and proved to be erroneous, by the service of Colonel Fullerton of Fullerton and Sir William Hamilton, now founded on by the pursuer. Therefore, in the declarator, sustains the objection to the title, dismisses the action, and decerns. In the reduction, Finds, That the said action of declarator of non-entry, though brought on a title now found to be defective, was, more particularly when taken alongst with the other proceedings of Messrs Ferrier in obtaining enrolment, sufficient to interrupt proscription; and, therefore, repels the plea of exclusive title offered by the defender: Finds, That the Crown charter, and other titles sought to be reduced, were illegal, and unauthorized by the rights of the parties; and, therefore, reduces, decerns, and declares, regarding the same in terms of the libel, and decerns. And the foresaid title in favour of the Countess of Crawfurd, and others following thereon, being reduced, Finds, That the pursuer, as the sole lawful and undoubted superior of the said lands, is entitled to the whole duties and casualties appertaining to the said superiority: Finds, that the said lands are now, and have been, in non-entry, since the death of Robert Hamilton, the father of the said Countess of Crawfurd; Finds, in respect of the title produced and founded on in these actions of reduction, that the claim for the arrears of feu-duties cannot be competently insisted on in these actions prior to the death of Alexander Walker, in 1802; but decerns for the arrears of feu-duties from the said year, but without interest: lastly, Finds no expenses due, and decerns.”

Both parties reclaimed, and the Court ordered Cases, in which the pleas were renewed which have been already stated in the previous report. In addition to this, it was now contended by Lord Eglinton, that, as the Lord Ordinary had found the declarator of non-entry to have been brought upon a defective title, it could not be held to have effectually interrupted prescription.

Wallace answered, that it was in connexion with other acts of interruption, such as the infeftment expede by Messrs Ferrier, and their enrolment among the freeholders of Ayrshire, that the Lord Ordinary held the action of declarator sufficient for interruption.

In regard to the subordinate questions, emerging in the event of Wallace succeeding in his reduction, he pleaded—

1. The lands were in non-entry since the death of Patrick Montgomerie. Robert Hamilton, who bought the lands from Montgomerie, should have brought a new declarator of tinsel, and, on getting decree, have made up titles precisely as Patrick Montgomerie had done. In place of which, he got a crown charter of resignation to himself, as if the immediate vassal, which was obtained obreptione, and was not a legal entry.

2. The feu-duties were due from the date of 40 years prior to the infeftment of Messrs Ferrier in 1775, which was followed by their declarator in 1776; and as Robert Hamilton never obtained a regular entry, the composition payable on his entry, as a singular successor (which was within 40 years prior to Messrs Ferrier's infeftment and declarator), ought still to be paid by his representative. A similar composition was due on the entry of the Countess of Crawford, and each successor, including Lord Eglinton, as they entered by singular titles under Robert Hamilton's entail.

3. Interest should be allowed on all arrears of feu-duty subsequent to the judicial demand in Messrs Ferriers' declarator.

Lord Eglinton replied—

1. The reduction did not strike against the infeftment of Robert Hamilton, but only of his successor, the Countess of Crawford; and it was impossible, in this action, to find the lands in non-entry till after his death. When his infeftment should be competently challenged, it would be found irreducible.

2. The declarator was raised without a title to support the action, and so the Lord Ordinary had found. Robert Hamilton's entry being unchallengeable, there was no claim left for composition, as on the entry of a singular successor. Besides, his entry was obtained during the lifetime of the heirs against whom the decree of tinsel was obtained, which decree declared their forfeiture of “the whole benefit and casualties of the said superiority during all the days of their lifetime.” At the date of his entry, they were not entitled to the composition therefor, and, after his entry was obtained, no such composition again fell due.

3. The judicial demand in the declarator was irregularly made, and there were no circumstances in the case to sanction the demand for interest on feu-duties, contrary to the general rule.