Scottish Court of Session Decisions

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¹ See ante, VII. 200; IX. 911; 5 W. and S. 32.

^* “It may be thought that the objections to the constitution and subsistence of the debts sued on is prejudicial. But if there be not any sufficient facts in this record to render the defenders liable for the debts of Walter Colquhoun, the defence of non representation appears to be equally prejudicial with the objections to the validity of the debt. If the defenders do not represent the debtor, they are not bound to investigate the merits of the debt.

“The original action, raised in 1805, was laid in very general terms against Robert Colquhoun, as heir served, or executor confirmed, to his father and grandfather, as charged to enter, or as representing them on one or other of the passive titles. The summons contained no allusion to the act 1695.

“The supplementary summons, raised in 1832, proceeds on the narrative of the former summons, and of a summons of wakening and transference, and is laid entirely on the act 1695 in its two branches. It is admitted that the defender, R. G. Colquhoun, represents his father; so that the question is, whether Robert the second represented Walter?

“The statute 1695 was an equitable infringement on the feudal law for the protection of creditors against the frauds of apparent heirs; and the authorities state, that ‘it has received a strict interpretation’ (Ersk. 3, 8, 94). Walter Colquhoun was the heir apparent or conditional institute in the estate of Camstradden under the entail 1774. He was the heir apparent of line of his father, and is said to have been the heir in a postnuptial contract. It is certain that he made up no titles to the estate: For, though a precept of clare constat as heir of entail was once made out in his name, it was not even delivered, and was never acted on; and it would have been inept according to the late decision. The question, therefore, on the first branch of the act 1695 is, whether Walter was three years in possession of the estate of Camstradden.

“The Lord Ordinary understands the meaning of this in the statute to be, not that a man survives his predecessor three years, having the character of heir apparent, nor even that he is so situated that he might have possession of the estate, but that, as a plain matter of fact, he has the possession and enjoyment of it, at least to some real extent. It is settled, on the one hand, that the possession of a tutor (and it is said even of a protutor), will be held the possession of the heir (Elchies, 4 Passive Title), and that the possession of a disponee of the heir will be taken as his possession. On the other hand, it is equally settled that the mere existence of a right of fee, where the liferenter has the actual possession, is not a possession of the heir within the statute; M'Caul, June 26, 1745, Morr. 9748; Johnston, Dec. 17, 1733, Morr. 9809; and that the possession of a judicial factor in a ranking and sale will not infer the passive title in the heir passing by; Buchan v. M'Donald, Dec. 7, 1796. The Lord Ordinary thinks this last an important authority in the present case.

“The present case, independent of some specialties, is this:—Robert, the first, had executed an entail, reserving power to alter. Then he executed a trust-deed for the payment of his debts, annuities, and provisions. That deed may be defective, in so far as it does not convey the property. But it was plainly intended to enable the trustees to take entire possession of the estate, and to draw all the rents and profits; and it expressly gives them power to sell the unentailed lands, taking the heir bound to concur with them in any measure necessary for extricating the trust. Now, the fact is, that these trustees did take entire possession of the estate, and of all the truster's effects; that they, and they alone, by their factor, levied all the rents; that they cut woods and sold them, and continued their possession, not only during the whole lifetime of Walter Colquhoun, but for at least about 18 years after his death. This is not a case in which there can be any doubt or ambiguity; for all the progressive accounts of the factors are regularly kept and preserved, and the Lord Ordinary has minutely examined them, Walter Colquhoun died on the 12th February, 1802 (see condescendence in first action, p. 8). And whatever else there may be in the case, it is certain that, down to that date, and long after, the whole rents, issues, and profits of the estate were drawn by the trustees alone.

“The Lord Ordinary is of opinion, that the possession of these trustees was not the possession of the heir. If, indeed, it could be shown that the immediate purposes of the trust bad been answered in Walter's lifetime, the idea would be intelligible, that after that they were possessing for the heir. But if the debts were not paid, and the annuities not provided for, the possession under such a trust was no more the possession of the heir than the possession of a judicial factor was so in Buchan's case.

“The Lord Ordinary apprehends, farther, that even if the trustees had found it necessary to ask the concurrence of the heir to enable them to extricate the trust under the clause in the trust-deed, such concurrence, though given, would not have been a possession by the heir, in the sense of the statute. But, in fact, no such thing took place. At first, the trustees made a minute, bearing that nothing could be done till Walter should be informed of the state of his father's settlements and affairs. But they went on to act upon the trust-deed; and the plain fact is, that Walternever attempted to take any possession, and did no act regarding the estate, except one to be afterwards mentioned.

“It is clear that, at first, and for many years, the income of the trust-estate was barely sufficient, and sometimes not sufficient to cover the annual charges on it without the possibility of liquidating any part of the capital debt; and, in 1796, the trustees made a minute, bearing that it would be impossible to go on without selling some part of the unentailed lands, unless Walter chose to advance money. But Walter was a commissioned bankrupt, and advanced no money. By great good management, the trust affairs afterwards improved; and, about the time of Walter's death, there was a considerable turn in its favour, chiefly by the sale of coppice wood. But at his death the debts were not paid, nor was there even an approach to the liquidation of them. For example, there was a debt of £2000 to Mr Dennistoun of Colgrain remaining, after payment of a sum to account of a larger debt, which was not extinguished till the 2d of June, 1820; and there were various other large debts and annuities which remained burdens on the trust during many years after Walter's death.

“The trust, therefore, subsisted necessarily for its proper purposes, during all the 15 years that Walter survived his father. And how then could it be said, in any reasonable sense, that Walter possessed the estate as heir apparent?

“The pursuers found on certain special circumstances:—

“1. The trust-deed appointed the trustees to pay to the heir an annuity from certain slate quarries; but it was not acted on. It is very doubtful whether, in any view, this, though acted on, could have made a possession by the heir. The state of the trust did not enable the trustees to pay these annuities. But the conclusive fact is, that, while all the rents of the slate quarries are entered in the factory accounts, there is no trace of any part of them, or any annuity, or any money whatever, having been paid to Walter Colquhoun. If he did not ask and receive the annuities, the clause being in the deed could never constitute a possession by him.

“2. Certain bonds or bills were paid, in which Walter was a joint obligant with his father, The nature of these obligations is not ascertained. But Walter was a bankrupt. In respect of the creditors, these were debts of Robert, the father, and the trustees were obliged to provide for them. But surely the circumstance of their paying the interest, or ultimately the principal of those debts, for which the truster was bound, could never make a possession of the estate by Walter, whether they might have a claim of relief against his bankrupt estate or not.

“3. At an early period, the assignees on Walter's estate, seeing that there was scarcely any chance of benefit from the estate during Walter's life, determined to sell the reversion; and, on the 29th January, 1789, they did sell it to Mr David Erskine for £52, 10s. Mr David Erskine, in his settlements, declared that he held the right, not for Walter, but, after payment of his outlays and expenses, ‘for the benefit of the children of Walter Colquhoun,’ and it was subsequently conveyed by Mr Erskine's trustees to Robert Colquhoun in 1811. The pursuers found on this transaction as bringing the case within the second branch of the statute; but they seem also to found on it under the first; and they say that the price was paid out of the rents of the estate. It would be very hard to convert such an act of the assignees into a possession of the estate, to create a passive title in the next heir, where there was nothing to possess as a reversion, and the money was, in fact, at first paid by Mr Erskine out of his own funds. The defender's counsel urged, that the sale of the reversion being considerably within three years after the father's death, rendered it impossible that there could have been three years' possession; and that if the price was paid from the rents as a reversion, it was only paid from the thing purchased, as a third party might have done. The Lord Ordinary doubts whether this argument is solid; because the possession of a disponee from the heir has been held to be imputable as his possession; and the pursuer's notion seems to lie in this subtlety, that the possession of the 50 guineas by the assignees, if paid from the rents, was a possession of the estate. But the plea is answered by the plain fact. There was no reversion to Walter, from which that or any sum could be paid. The deed of Mr Erskine's trustees bears, that his advances had been paid to them in 1802. Walter died on the 12th February, 1802 (the date is blank in this record, but will be found in the pursuer's old condescendence above referred to). Now, upon turning to the accounts of the trust, it appears that the debt to Mr Erskine, amounting to £144, 18s., was paid on the 18th June, 1802. At this time the trustees, so far as they held the estate for the heir, held it for Robert Colquhoun, not for Walter; and they are only enabled to pay this and some other debts by means of an instalment of the price of copsewood, amounting to £750, received on the 21st May, 1802, three months after Walter's death. In this view of the point, there seems to be no substance in it The sale and the purchase were a mere speculation, and the conveyance by Mr Erskine's trustees was of no use or importance, except to put an end to the apparent title in Mr Erskine.

“The Lord Ordinary is, therefore, of opinion, that no grounds have been laid for inferring representation under the first branch of the act 1695.

“The plea on the second branch of that statute appears to be altogether untenable. What the statute contemplated was, not such a transaction as the sale and purchase of a reversion, but the purchase of rights affecting the estate, held by third parties, to be made the ground of a title to the estate. But it is a sufficient answer, at any rate, that Walter made no purchase, and none was made for him, the purchase being declared by Mr Erskine to hare been, not for him, but for his family.

“The pursuers have alleged, in general terms, representation by actual intromission with Walter's effects; but the only special averment is, that Robert took possession of the furniture in the house of Camstradden. In the 11th article of the defender's statement, which, though not admitted, is not denied, it is explained that the house and furniture were held in lease by the unmarried daughters of old Robert, by a tack dated in 1781, subject to a power in the trustees to give the heir possession as a tenant for a fixed rent; and that one of these daughters is still alive. The tack seems not to be produced; but the statement in the article is strongly confirmed by this fact, that, during the short time that Robert lived in the mansion-house, he did pay a rent for it. He was then acting as factor, and he charges himself with a rent of £56, 10s. This part of the case therefore will not do; and any other allegations of intromission in the condescendence are a great deal too vague and indefinite, especially post tantum temporis.

“Much was said to the Lord Ordinary about a marriage-contract in 1741, and it was assumed that Walter could have reduced the entail. The entail probably could not have been reduced on this ground. But the point is foreign to the case. It is enough that Walter never did reduce, or attempt to reduce the entail. Neither was it ever reduced. The title made up by Robert under it was, indeed, reduced as inept, in consequence of its being by service to old Robert; and a fee-simple title having been in the mean time made up, and a bona fide sale made to a third party, the estate was found to be validly alienated. But so far from reducing the entail in respect of the marriage-contract, the Court expressly reserved the claim of the substitutes to the price.”