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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Watson or M'Gowan v. Watson [1867] ScotLR 3_336 (21 March 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0336.html
Cite as: [1867] SLR 3_336, [1867] ScotLR 3_336
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SCOTTISH_SLR_Court_of_Session
Page: 336↓
Court of Session Inner House Second Division.
Extended Sittings.
v.
Facts:
1693. Held—(1) That a summary petition in the Sheriff Court by a party alleging an interest in them for delivery of two deeds, one being a feu-contract, was a competent proceeding. (2) That a feu-contract was properly recorded in the books of the Sheriff Court, it not falling within the operation of the Act of 1693 applicable to feu-charters.
This is an advocation from the Steward Court of Kirkcudbright. John Watson, shepherd, Torkatrine, in the parish of Urr, brought a petition in the Steward Court, praying that the respondent should be ordained to deliver up to him, upon a receipt and obligation to redeliver them, the following deeds—viz., (1) feu-contract entered into between James Gibson, Esq., of Kelton, deceased, and Robert Watson, also deceased, and his father, dated 8th May 1784; and (2) settlement of Robert Watson in favour of John Watson, the petitioner's father, Robert Watson's eldest son, and his three daughters, Margaret and Agnes, the respondents, and Mary, the petitioner's aunts, dated 25th June 1822. The petitioner alleged that Robert Watson died, leaving certain heritable property, and also a settlement leaving that property to John Watson, his eldest son, now deceased, to Agnes Watson or M'Gowan, Margaret Watson or M'Night, two of the respondents in this case, and to Mary Watson, his daughter. He further says that John Watson died intestate, and that he is his eldest and nearest and lawful heir of line; and that Mary Watson died intestate, and that he stands in the same relation to her; and also that he is the nearest and lawful heir of line of his grandfather, the said Robert Watson. The Steward (Hector), overruling a judgment of the Steward-Substitute, held that the petitioner had averred a case entitling him to have the deeds produced, and ordered their production, subject to the condition “that his agent, who may receive the same, shall undertake to have the writings duly recorded within a time to be fixed, for behoof of all parties interested.” The respondents were ultimately found liable in expenses in the inferior court.
They advocated.
Pattison and Dundas Grant, for them, argued—The petition was incompetent in the Steward Court; the proper remedy was an action of exhibition. Further, it was incompetent for the Steward to order the recording of a feu-contract, for such a deed is in the same position as a feu-charter, which can only be registered in the books of Council and Session under the Act of 1693.
Solicitor-General and Scott in answer.
To-day the Court (Lord Neaves delivering the opinion of the Court) adhered to the interlocutor of the Steward, holding that he had taken a proper view of the case in ordering the deed to be recorded, and that it was properly recorded in the Steward Court, the Act of 1693 only applying to the transmission of subaltern rights, not to the creation of new ones.
Solicitors: Agent for Advocator— J. Barton, S.S.C.
Agent for Respondent— W. S. Stuart, S.S.C.