Scottish Court of Session Decisions

In an action of declarator, adjudication, and payment originally raised at the instance of the late

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Right Hon. Clementina Elphinstone Fleeming, of Biggar and Cumbernauld, wife of the Right Hon. Cornwallis, Viscount Hawarden, with consent and concurrence of her husband, and the said Viscount Hawarden, for his interest, against the Right Hon. John Fleeming, Lord Elphinstone, formerly John Fleeming, Esq., of Biggar and Cumbernauld, now dead, and George Dunlop, writer in Edinburgh, and now insisted in by the Hon. Cornwallis Fleeming (sometime Maude), only son of the said Viscountess Hawarden, and the said Viscount Hawarden, his father, as his administrator — in — law, against James Howden, C. A., in Edinburgh, trustee on the sequestrated estate of the said deceased Lord Elphinstone and the said George Dunlop, the Lord Ordinary (Kinloch), on the 12th of November 1864, found that in a question between the pursuer Lady Hawarden and the original defender Lord Elphinstone, the succession of the latter to the peerage on or about 19th July 1860 had the effect of determining and bringing to an end, ipso facto, the right of the said Lord Elphinstone to the entailed estate libelled, and of transferring to the pursuer the right to the said estate from and after the said date.

The entail in question contains a provision to the effect “that in case it shall happen any of the heirs of tailzie mentioned, other than the heirs-male of my body, or of the body of the said Mr Charles Fleeming, to succeed to the title and dignity of peerage, then, and in that case, and how soon the person so succeeding, or having right to succeed, to my said estate, shall also succeed, or have right to succeed, to the said title and dignity of peerage, they shall be bound and obliged to denude themselves of all right, title, or interest which may be competent to them of my said estate; and the same shall from thenceforth, ipso facto, accrue and devolve upon my next heir of tailzie for the time being, sicklike as if the person so succeeding and bound to denude were naturally dead.” John Fleeming, the heir then in possession, succeeded to the peerage as Lord Elphinstone on 19th July 1860. On the 18th July last, in reviewing the interlocutor of the Lord Ordinary, the Court pronounced the following judgment:—

“Edinburgh, 18th July 1865.—The Lords of the Second Division having resumed consideration of the reclaiming note for the defenders against Lord Kinloch's interlocutor of 19th November 1864, with the revised cases for the parties, recall the interlocutor reclaimed against: Find that the late John Fleeming, the original defender, was served heir of tailzie and provision, and duly infeft in the estates claimed by the original pursuer, Lady Hawarden, on the 1st May 1841: Find that by the death of John, 13th Baron Elphinstone, on 19th July 1860, the succession to the title and honours of the barony of Elphinstone, in the peerage of Scotland, opened to the said John Fleeming as the heir next entitled to succeed to the said peerage: Find that on the 31st October 1860 the original pursuer, Lady Hawarden, being the heir of entail next entitled to succeed to the said estates after the said John Fleeming, raised the present action against the said John Fleeming, and the defender Dunlop for his interest, for the purpose of compelling the said John Fleeming to denude of the said estates in her favour, and also for the purpose of adjudging the said estates to belong to her in virtue of the said provision in the said deed of entail, and of the opening of the succession to the said title and honours of the barony of Elphinstone to the said John Fleeming: Find that the defender Dunlop was, during the lifetime of the said John Fleeming, and at the time when the present action was raised, in possession of the said estates, and had been in such possession prior to the succession of the said peerage opening to the said John Fleeming on the 19th July 1860, as disponee under the disposition, No. of process, executed in his favour by the said John Fleeming on 14th, and registered in the General Register of Sasines on the 25th November 1859: Find that the said disposition, though ex facie absolute, was truly a security for debt due by the said John Fleeming to the defender Dunlop: Find that the said John Fleeming and the defender Dunlop lodged joint defences to this action, and that thereafter the said John Fleeming died on 13th January 1861: Find that the estates of the said John Fleeming were sequestrated under the Bankrupt Act after his death on 7th July 1862, and the defender Howden is trustee in the sequestration which is still in dependence: Find that in July 1861 the said Lady Hawarden, original pursuer, was served in special as heir of tailzie and provision of the said estates to the said John Fleeming, as the heir who died last vest and seised in the said estate: Find that the entail of the said estates under which the said John Fleeming held the same was a valid and effectual entail under the statute 1845; and with these findings, appoints the revised cases for the parties, with the record and productions, to be laid before the Judges of the First Division and the permanent Lords Ordinary, for the purpose of their Lordships giving their opinions in writing on the following questions:—

(1.) Whether the devolution of the estates provided by the said clause of the deed of entail took effect ipso facto on the succession to the said peerage opening to the said John Fleeming so as to entitle the said Lady Hawarden to immediate possession of the said estates, and to the rents and profits thenceforth accruing without any decree of declarator giving effect to the devolution?

(2.) Whether assuming that the debt which the disposition to the defender Dunlop was intended to secure, is a subsisting debt, the said Lady Hawarden was, in competition with the said defender, as disponee and assignee of the said John Fleeming, entitled to the rents and profits of the said estates for the period between the succession to the said peerage opening to the said John Fleeming on the 19th July 1860 and the raising of the present action, or for the period between the raising of the present action and the death of the said John Fleeming?

(3.) Whether the said Lady Hawarden was, in competition with the trusteee on the sequestrated estate of the said John Fleeming, entitled to the said rents or profits, or any part of the same?”

The following is the opinion returned by the Lord President, Lord Curriehill, Lord Ardmillan, Lord Jerviswoode, Lord Ormidale, and Lord Mure, in which the judges of the Second Division to-day concurred:—

We are (1) of opinion that upon the succession to the peerage opening to John Fleeming, the devolution of the estates provided by the clause of the deed of entail took effect so as to entitle Lady Hawarden to immediate possession of the estates, and to the rents and profits thenceforth accruing, without any decree of declarator. The event referred to—namely, the succession to the peerage—was not a contravention of any of the provisions or conditions of the deed of entail. It was not an act prohibited to be done, or an omission of anything that the heir in possession was enjoined to do. It was an occurrence of a character altogether different from those matters in reference to which the statute 1685 contemplates an action of declarator. It was not a penal irritancy; it was not, in the sense of the entail, or in any proper sense, an irritancy. It was a provision or condition for regulating the course of succession. John Fleeming took the estates, not only subject to the condition that if he succeeded to the peerage (or it might have been if he succeeded to a certain other estate of greater value), the estates now in question should from thenceforth devolve on and accrue to the next heir, but also subject to an express obligation on him, as soon as the succession to the peerage opened to him, to denude, which is tantamount to an obligation on him forthwith to convey the estates in question to the next heir. If John Fleeming refused to cede possession, an action at the instance of the next heir might be necessary, not to give her the right,

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but to enforce it, and compel implement of the obligation; nor could John Fleeming, by resisting such action, prolong the period of his lawful enjoyment of the rents, or postpone until decree in that action the period when the rights of the next heir would commence. It has been suggested that at least the instituting of an action at the instance of the next heir was necessary to put an end to the right of John Fleeming. We do not think so; but we would observe, that whether the date of succeeding to the peerage, or the date of instituting the action, be taken as the date at which John Fleeming's right ceased and that of the next heir commenced, the practical consequences in this case appear to us to be the same, because both of these events occurred during the currency of the half year between Whitsunday and Martinmas, and there being no unusual condition in the leases, no right to any part of the rents of that half-year ever belonged to John Fleeming. (2.) As regards the competition referred to between Lady Hawarden and the defender Mr Dunlop, we are of opinion that Lady Hawarden was entitled to the rents and profits of the estates for the period between the date when the succession to the peerage opened to John Fleeming and the date of his death. When John Fleeming's right ceased, that of Mr Dunlop, derived from him, also ceased. This, we think, follows on principle, and from the terms of Mr Dunlop's title. (3.) We are of opinion that Lady Hawarden was, in competition with the trustee on the sequestrated estate of John Fleeming, entitled to the rents or profits in question.”

Lord Deas, Lord Kinloch, and Lord Barcaple returned separate opinions, in which they arrived substantially at the same result.