Scottish Court of Session Decisions

Subject_1Trust
Subject_2Mortification
Subject_3Annual Rent
Subject_4Positive and Negative Prescription. Headnote:

This is an action of declarator and reduction at the instance of the University of Aberdeen, the Lord Provost, Magistrates, and Town Council of Aberdeen, as managers and patrons of the Grammar School of Aberdeen, the masters of the said Grammar School, and certain bursars in the University and Grammar School, against Mr Alexander Forbes Irvine of Drum. The object of the action is to declare the pursuers' right to the Lands of Kinmuck in Aberdeenshire, which are said to be worth about £700 a year.

It appears that an ancestor of the defender, Alexander Irvine of Drum, made the following provisions by his testament and last will, dated in 1629, viz.:—

“For the maintenance of letters, by thir presents, I leave, mortify, and destinate ten thousand pounds

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Scots money, which is now in possession and keeping of Marian Douglass, my spouse, all in gold and weight, appointed for the use underwritten, of her own knowledge and most willing consent, to be presently delivered to the Provost, Baillies, and Council of Aberdeen, and to be bestowed and employed by them upon land and annual rent in all time hereafter to the effect after following—to wit, £320 of the annual rent thereof to be yearly employed hereafter on four scholars at the Grammar School of Aberdeen for the space of four years, ilk ane of them fourscore pounds; and £400 to be paid yearly to other four scholars at the College of New Aberdeen, and students of Philosophy thereat, ilk ane of them ane hundred pounds during likewise the space of four years; and also I ordain to be given to other twa scholars who have passed their course of Philosophy, being made Masters, and are become students of Divinity, in the said New College, 400 merks Scots money—viz., to each one of them 200 merks of the said annual rent during the space of four years also; and the odd 20 merks, which, with the dedications above specified, complete the said haill annual rents of £10,000, I ordain to be given to any man the Town of Aberdeen shall appoint for ingathering and furth-giving of the said annual rent to the said scholars, as is above designed; which scholars of the kinds above-written I will and ordain yearly, in all time hereafter, be presented by my said executor, as my heir, and his heirs and successors, Lairds of Drum, to the town of Aberdeen, Provost and Baillies thereof, and their successors, who shall be holden to receive them yearly upon their presentation, and shall stand obliged and comptable for the said annual rent to be employed as is above appointed in all time coming.”

The testator died soon after executing this deed, and was succeeded by his son, Sir Alexander Irving. When the legacy was communicated to the Provost, Bailies, and Counsel of Aberdeen, they, on 9th May 1630, “considering that their reeeipt of the said legacy of £10,000 would make the town liable in time coming perpetually in yearly payment of £1000 for the annual rent thereof, to be bestowed for the maintenance of the said ten bursars, which the town could not undergo without their great hurt and prejudice, refused to receive the said sum on the conditions above written.” But “the Council thought it meet and expedient that the Provost and Baillies should write, and direct their letter to the said Marion Douglass, desiring her to deliver the said £10,000 to the said Sir Alexander Irving, then of Drum, his son, upon his acquittance to be given thereupon to her; to the end he may ware the same on profite to the use foresaid whereunto the same was destinate and left, and be comptable and answerable therefor till such time as the Council and he may agree on reasonable conditions thereanent, as said is.”

In 1633 Sir Alexander Irving raised an action in the Court of Session, which concluded to have it “found and decerned by the Lords of Council and Session, that it shall be leisome to the said complainer to wair and bestow the said sum of £10,000 upon buying of land therewith, upon such easy prices and conditions as may be had therefor; and the said lands to be bought therewith, maills, farms, and duties of the same, to be mortified and destinated to the use of the said four scholars in the Grammar School of Aberdeen, four scholars, students of philosophy, in the said New College of Aberdeen, and two scholars, being laureate masters, students of divinity in the said New College of Aberdeen, proportionally and pro rata, effeiring to the quantities of the annual rent of the said sum appointed to be paid to them by the said testament.”

In this action decree passed in absence on 27th February 1633, ordaining Sir Alexander to have retention and keeping of the said sum of £10,000 until Whitsunday 1640, and ordaining him then to provide for the use of the scholars and bursars sufficient well-holden lands for employing of the said sum of £10,000, worth in yearly rent to the sum of £1000 money, “which lands shall be bought and acquired by him heritably, without reversion, to the use and behoof foresaid against that term without further delay, according to the destination and mortification of the said Laird of Drum and his mind specified in his latter will.”

The pursuers averred that Sir Alexander appropriated to his own use the said sum of £10,000 Scots, and in consideration thereof, in 1656, mortified by deed the lands of Kinmuck and others for the use and behoof foresaid. The lands so mortified were then of the value of £10,000 Scots, and no more. In this deed Sir Alexander bound and obliged himself, and his heirs and successors, “to make, seal, subscribe, and deliver to the said ten scholars, and their successors to the said burses, all contracts, dispositions, charters, procuratories of resignation, and other securities requisite, containing all clauses necessary, with absolute and ample warrandice at all hands, and that at what time and how soon I and my foresaids might be desired.”

The defender contends that this deed was only a bond granted for the purpose of securing to the bursars the annual payment of £1000 Scots, which sum he is and has always been willing to pay as his ancestors have always done. The deed does not contain, he says, any absolute conveyance of the lands, and it was never followed by possession or acted on in any way. On the contrary, the lands have remained all along in the possession of the Irvines of Drum, as part of the estate of Drum.

The defender is now in possession, under a deed of entail, executed by his grandfather in 1821, which (along with the deeds following upon it) the pursuers now seek to reduce, on the ground that it proceeded a non habente potestatem. In the course of this process Mr Irvine has made up another title to the lands by serving himself as heir in special to Alexander Irvine of Drum, who died in 1735, and then stood infeft. He thus holds, he maintains, a double or cumulative title to the lands of Kinmuck.

The pursuers plead that in virtue of the decree of 1633, and the deed of mortification of 1656, they are entitled to the lands and the whole free rents thereof that the entail of 1821 forms no good title for the reason already stated; and that even if the title which the defender has expede pendente processu were valid, it could only vest him with the lands subject to the obligation of implementing the bond and deed of mortification granted by his ancestor.

The defender pleads that the pursuers have no title to sue, in respect neither they nor their predecessors ever held any title to the lands, or ever had any possession thereof: that he, in virtue of his titles and of the possession, by himself and his predecessors, for more than forty years, has a complete prescriptive title to the lands; and that the bond and decree founded on by the pursuers never having been followed by possession or acted on in any way for far more than forty years, all claim thereon is excluded by the negative prescription.

The Lord Ordinary (Kinloch), on 2d December 1863, found that according to the sound construction of the testament of 1629, the decree of 1633, and the deed of mortification of 1656, the whole beneficial interest in the lands of Kinmuck was transferred and made over for behoof of the bursars, and that the pursuers were entitled to have this right declared and enforced against the defender, as vested with the feudal title to the lands. His Lordship held that so far from its being intended to give the bursars a definite sum of £1000 Scots per annum, the object of all concerned, when the lands were mortified, was to avoid this result, which at the time was thought to involve a serious responsibility. Hence it was that the money was laid out on lands, the rents of which are expressly declared to come in room of the interest of the money, all concerned being discharged of further liability. If the rents did not amount to £1000 Scots per annum the bursars of course suffered, as by the necessity of all such cases. If the rents exceeded this sum it was only the fair counterpart that they

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should enjoy the benefit of the excess. The clear object of the transaction was simply to mortify these lands, that the objects of the mortification might enjoy their whole proceeds, whatever these might be. In regard to the defender's pleas of prescription the Lord Ordinary held that they were not applicable to this case. The deed of 1656 substantially created a trust right in the person of Sir Alexander Irving and his heirs. The feudal title remained in their person on their original absolute right, and the lands might have been alienated to a bona fide purchaser. The rule is fixed that so long as the trust-subject remains entire in the hands of the trustee no lapse of time will bar a claim to it by the beneficiary. The whole foundation of the negative prescription, which is presumed dereliction of the right, fails in the case of property still subsisting in the truster's hands. ( Barns v. Barns' Trustees, 19 D. 626). In regard to the positive prescription pleaded, his Lordship observed, that as in a question with the beneficiaries the defender's title was not an absolute one, because it was qualified by a concurrent deed, which contained a declaration of trust; but besides there had not been, on the defender's own showing, possession corresponding to an absolute title, because what he maintains is that to the extent of £1000 Scots per annum the rents had been all along drawn for, and applied to the use of the beneficiaries. These circumstances prevented the operation of the positive prescription.

The defender reclaimed, and on 30th March 1864, the Court, after a debate, allowed to both parties a proof before answer of their respective averments on record. This proof was led, and the case has been again fully debated. The Court to-day made avizandum.

In the course of the renewed debate a new view of the case was started by Lord Curriehill. His Lordship suggested that the Court might possibly have granted the decree in the action at the instance of Sir Alexander Irving in 1633 on the understanding that Sir Alexander should grant a bond of annual rent over his lands of Kinmuck for £1000 Scots, which was, under the will of 1829, to be annually paid to the bursars. Such deeds were very common in these days. In this view, the bond of 1656 would create a mere burden over the subjects to the extent of this annual payment.