Scottish Court of Session Decisions

The Lord Ordinary ( Mackenzie), on 5th February 1859, pronounced an interlocutor finding that, under a disposition in 1811 and following deeds, the defender acquired an ex facie valid title to the property of the minerals reserved by the superior in the original feu-charter granted to Archibald Robertson in August 1753; that the pursuer was barred by the negative prescription from challenging the said disposition of 1811 or following deeds, either on the ground that it was ultra vires of the granter, or that it was granted under essential error; and assoilzied the defender. The pursuer reclaimed, and after a hearing on the reclaiming note, cases were ordered. Before judgment on the cases the defender died, and various other changes took place among the parties to the action. The action was now insisted in at the instance of Cornwallis Fleeming against James Howden, trustee on the sequestrated estate of John Fleeming, afterwards Baron Elphinstone.

Pattison and J. Marshall for reclaimer.

Solicitor-General (Millar) for respondent.

At advising—

Lord President—This action was raised in 1857 by John Fleeming of Biggar and Cumbernauld, then heir of entail in possession of the earldom of Wigton, and he sought to have it found and declared that the minerals in certain lands forming part of the earldom of Wigtown, and called the lands of Auchenkilns, Thorn, and Chappelton [ read 1st conclusion]. And then he sets out in detail his title as heir in possession. In addition to this conclusion of declarator, there is a farther conclusion for reduction of certain deeds, a disposition dated in 1811, by which the superiority of these lands of Auchenkilns, Thorn, and Chappleton had been conveyed to the vassals of these lands, and various other titles following on that disposition, and feudally vesting that superiority in the defender Lord Elphinstone. Various defences were stated against this action, but there are many of them which it is not necessary to notice. The Lord Ordinary, on 5th February 1859, finds [ reads interlocutor]. Therefore the Lord Ordinary sustains the defences and assoilzies the defender from the whole conclusions of the action. A reclaiming note was presented against this interlocutor, and the case appeared to be so important that written argument was ordered. Revised cases were lodged in 1860. Since then nothing has been done, but that was not the fault of the Court, but of the parties themselves, who required the case to stand over for various causes, and the case has been considerably complicated. In delivering my opinion on the merits of the case, however, I shall treat it as it stood originally—an action, namely, by John Fleeming, heir of entail in possession of the earldom of Wigton, against Lord Elphinstone, the original defender.

In coming to the question which arises on the deed of 1811, mentioned in the Lord Ordinary's interlocutor, it is necessary to attend to the state of the titles at the time when that deed was granted. The entail was made by the Earl of Wigton, or the trustees appointed by him, at the middle of the last century. These trustees, before the estate descended to any heir of entail, granted a feu-charter of the lands of Auchinkilns, Thorn, and Chappleton, to Robertson, and that feu-charter contained a reservation of the minerals in very express terms, reserving all kinds of minerals, specifying them, except stone and lime, and declaring, further, “that it shall be lawful to and in the power of us and our foresaids, and the said Earl's heirs, to search for, work, and carry away the foresaid metals and minerals so reserved, and to use so much of the ground of the said lands as shall be needful for these ends, we and they always satisfying and paying all the losses and damages which the said James and Archibald Robertson's foresaids shall sustain thereby.” The entailer, the Earl of Wigton, died in 1757, and was succeeded by Lady Clementina Fleeming, and she held the earldom and barony with the reserved right to the minerals, this feu-charter being renewed during her lifetime. Indeed, the dominium utile during her life was sold to the eleventh Lord Elphinstone, the grandfather of the original defender, and he obtained from her a charter of sale in which the reservation of the minerals was repeated in the terms of the original feu-charter. That Lord Elphinstone was succeeded by the twelfth Lord Elphinstone, the father of the defender, who obtained a precept of clare constat containing the same reservation. Lady Clementina was succeeded by Mr Charles Fleeming, who made up a title as heir of entail, and during the whole of this period the titles made up to the earldom of Wigton and barony of Cumbernauld included expressly the lands in question of Auchinkilns, Thorn, and Chappleton. In 1811, Charles Fleeming was heir of entail in possession, and the defender's father, the twelfth Lord Elphinston, was vassal under the feu-charter of 1753. In these circumstances, Mr Charles Fleeming desired to avail himself of the power granted by the Act 20 Geo. II. c. 51, to sell to his vassal the superiority of his lands, and for that purpose he granted a commission to two gentlemen to act for him, and to sell and convey to the vassals the superiority of their lands. In view of these powers they executed a disposition in 1811, on which this matter turns. That disposition makes it clear what the commissioners were doing, and what they were entitled to do. It narrates the Act, and shows that it was on the Statute, and in the exercise of statutory powers that they proceeded. The disposition farther relates the commission by Charles Fleeming to these gentlemen, which granted authority to sell to his vassals, in his entailed estates of Biggar and Cumbernauld, the superiorities, with the feu-duties, and the duties and casualties of superiority of their respective lands.

Acting thus on the double authority of the Statute, and the commission by the heir of entail in possession, the disposition recited that as John Lord Elphinstone, the proprietor, was desirous of purchasing the superiorities and feu-duties and casualties thereof, which are parts of the said entailed estates, we have resolved to sell the same to him in virtue of the powers given to us by the foresaid commission. And then the disposition bears that £480 having been paid as the price of the superiorities, feu-duties, and others of the lands, thereupon the commissioners sold, alienated, and disponed to the vassal the lands of Auchinkilns, Thorn, and Chappleton during all time coming, but

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