Scottish Court of Session Decisions

The late Dr Boyd, proprietor of the lands of Culbratton and others, executed an entailed disposition of these lands in 1787, under reservation of his own liferent, to his eldest son, John, whom failing, his second son, Edward, &c.

In 1794, on the narrative that he had sundry debts, and the provisions of Edward Boyd and other younger children to secure, besides an annuity to his wife, Dr Boyd executed a trust-conveyance of the lands of Culbratton to his wife, and Edward Boyd, jointly; and, after his wife's decease, to Edward Boyd. The purposes of the trust were declared to be to pay the truster's debts; the annuity to his wife; and the provisions to his children. To secure the full execution of these purposes, it was appointed that the trust-disposition “should be in force for twenty-one years after my decease, and thereafter until the said debts, &c. are paid.” Declaring, “That on the expiration of this trust-right, my said trustees shall be bound and obliged to divest themselves of my estate, funds, and effects, and to renounce the rights standing in their persons, in favour of the heirs appointed to succeed to my said lands and estate by the deed of entail and settlement before-mentioned.”

Dr Boyd died in 1794, upon which his widow and Edward Boyd accepted the trust, and were infeft, under the conveyance in their favour, on 12th July, 1794.

John Boyd, the eldest son, survived his father, but died without making up any title. Edward Boyd expede a general service to his father, with the view of thereby taking up the open precept in the disposition 1787; and, on the assumption that he had done so, he was infeft under that precept. In 1802, he obtained from Mark Sprot and Sir William Douglas, who were trustees of his wife, a loan of £3000, and he granted a heritable bond to them. By that deed he bound himself to infeft them, for their security, “not only in all and whole an annualrent of £150 sterling,” &c., to be uplifted “furth of all and whole the lands of Culbratton,” &c.; “but also in all and whole the said lands, teinds, and others before specified, with the pertinents themselves, in farther security to the said Mark Sprot and Sir William Douglas, and the survivor of them, and his foresaids, of payment of the said sums of money.”

The procuratory of resignation not only included the annualrent, “but also all and whole the said lands, teinds, and others before specified, themselves, together with all right, title, and interest, which I have, or can pretend thereto, or to any part or portion thereof, in time coming, in real security and more sure payment,” &c.

Edward Boyd bound himself in absolute warrandice both of the annual-rent, and of “the said lands and others themselves;” and he assigned “the whole writs and evidents, rights, titles, and securities of and concerning the said lands and others,” as well as the rents “surrogating and substituting the said Mark Sprot and Sir William Douglas in my full right and place of the premises, under reversion, as said is, for their security and payment of the sums of money,” &c. It was specially provided that the trustees might either use personal diligence upon the bond, or real diligence under the heritable disposition, “or both jointly, as cumulative and distinct rights, the one without prejudice of the other, in their option, and without any innovation or confusion of rights.” The precept of sasine directed infeftment to be given both in the annualrent and in the lands themselves; and the trustees were infeft under this disposition.

In 1826, Edward Boyd's estates were sequestrated under the Bankrupt Act, and William Paul, accountant in Edinburgh, was appointed trustee. Paul was advised that the trust-conveyance of 1794 was inept, and, being desirous to avoid the entail of 1787, he gave the bankrupt a charge to enter heir in special to his father, and obtained a decree of adjudication, under which he was infeft in June, 1830. The trustees of Edward Boyd's wife assuming that the precept in Dr Boyd's disposition in 1787 was still unexecuted, now expede a service of Edward Boyd, as heir of provision to his eldest brother John. The claim of service, dated 24th August, 1829, was signed by Edward Boyd. They then infeft Edward Boyd under the precept in the disposition 1787. The lands of Culbratton were ultimately sold by Paul, the trustee, and a competition arose upon the price between him and the trustees, who were now represented by Messrs William Turnbull and Richard Campbell. During the competition, it was settled that the infeftment under the trust-deed 1794 was a valid investiture. ¹

Pleaded by Mrs Boyd's Trustees—

1. The title made up by Paul was inept. There was nothing in here-ditate jacente of Dr Boyd to be taken up by any heir. He had effectually conveyed his estates to trustees, who were infeft accordingly; and even the reversionary interest under the trust was expressly disponed away. Neither a service to Dr Boyd, nor the equivalent adopted by Paul, of charging Edward Boyd to enter heir, and then adjudging, could take up any thing whatever. ²

2. The heritable bond in 1802 was an effectual conveyance to the trustees of Edward Boyd's wife of the jus crediti, which was then vested in him, under the trust-deed of Dr Boyd, by which the whole reversionary interest under the trust was then in Edward Boyd, Though the purpose directly in view was merely to constitute a good security over the lands of Culbratton, on the erroneous supposition that Edward Boyd was feudally vested in them, still as he disponed these lands themselves with their pertinents, and with every right and interest which he had in them, and assigned their whole rents to the creditors, and bound himself in absolute warrandice, this was enough to convey his reversionary interest in these lands, under the subsisting trust which embraced them. To the effect of securing the loan, this deed was therefore as good as an express conveyance of the jus crediti would have been; and, in a competition of personal rights, which was the utmost that Paul could now contend for, such conveyance was effectual to create a preference. It was sufficiently intimated, seeing that Edward Boyd, who as a trustee was debtor under the jus crediti, was the granter of the heritable bond; ³ and the infeftment which passed was sufficient intimation to the widow of Dr Boyd, the other trustee.

3. But a good feudal title had been made up in the person of Edward, by serving him heir of provision to his brother John Boyd, and infefting him under the disposition 1787. By the principle of

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¹ Jan. 22, 1833 (ante, XI. 292).

² Renton, Dec. 20, 1833 (ante, XII. 266).

³ Turabull, June 12, 1756 (Mor. 868).