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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Earl of Perth v. Willoughby D'Eresby's Trustees [1869] ScotLR 6_335 (16 February 1869)
URL: http://www.bailii.org/scot/cases/ScotCS/1869/06SLR0335.html
Cite as: [1869] SLR 6_335, [1869] ScotLR 6_335
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SCOTTISH_SLR_Court_of_Session
Page: 335↓
Court of Session Inner House Second Division.
v.
Facts:
James Drummond, Duke of Perth, having been engaged in the rebellion of 1745, an act was passed which provided that he should submit to justice before 12th July 1746, and that if he did not submit he should be attainted of high treason. He died on 11th May 1746, before the period fixed for the submission, without issue, and was survived by his brother John, who was also engaged in the rebellion, was embraced in the statute, and survived the period fixed for submission. John was attainted, and the lands were seized by the Crown as forfeited. The estates thus seized were annexed inalienably to the crown by the Act 25 Geo. II, c. 41, and remained under charge of the Commissioners till 1785; but in 1784 an act was passed for restoring the estates to the heir-male of John Drummond, the attainted person. Titles were made up under the destination of the Act of Restoration. An action of reduction and declarator is now brought against the successors of the person who, in 1785, obtained a decree of declarator that he was at that time next heir-male of John Drummond, and the title libelled by the pursuer is that he is lawful heir-male in general to James Drummond who died in 1746 conform to service expede by him in that character. That service stands reduced. Held (1) That when the succession opened to John Drummond by the death of his brother James on 11th May 1746, he had a capacity to inherit, and although the Act of Attainder had a retrospective effect to a date anterior to his succession as heir-apparent, the estates passed to the Crown by John's attainder, and the pursuer's service could carry no right to the lands as in the hæreditas jacens of James; (2) That the forfeiture of an heir-apparent operates as a complete vesting of the Crown, not merely in the apparent-heir's right measured by his existing title, but in the estates themselves to which he is heir-apparent; (3) That the object and intention of the Restoration Act were to confer the estates on the heir-male and not the heir-male-general of the attainted person, and therefore, that in the latter character the pursuer had no title to sue the present action. Action therefore dismissed.
Circumstances in which held—(1) That a plea of prescription in absence of proof cannot he sustained without production of titles; (2) that a title to exclude could not he sustained without production of the title-deeds instructing it; (3) that a plea of corruption of blood in respect of the attainder of an ancestor would be a good answer against production of titles, but could not be entertained in presence of an unreduced service which presumes that the title libelled has been validly deduced.
Observed per Lord Justice-Clerk (Patton),
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that it is not a doctrine of the law of Scotland that a right of succession cannot be transmitted through an action. This was an action which involved the title to the estates of Drummond Castle and others in Perthshire, and which was pursued by the Earl of Perth against the Trustees of the late Lady Willoughby d'Eresby, and also against the Officers of State as representing the interests of the Crown.
The action was brought by the pursuer as duly served and decerned nearest and lawful heir-male in general to James Drummond, third Duke of Perth, who died in 1746. This James, third Duke of Perth, was proprietor in possession of the Perth estates, of which he expede a crown charter of resignation and novodamus in 1731 in favour of himself and the heirs-male of his body, whom failing, his other heirs-male, whom all failing, his own nearest heirs and assignees whomsoever. It does not appear whether he took infeftment. He died unmarried and intestate, and after his death the estate was seized by the Crown as being forfeited by the attainder of his brother and apparent heir, Lord John Drummond. It continued in the hands of the Crown till 1785, when, under the Restoration Act, it was granted to the late Lord Perth, then Captain Drummond, the titles being taken to him and his heirs and assignees. On the death of Lord Perth it passed to his only child, the late Lady Willoughby d'Eresby, and is now held by the defenders, her testamentary trustees.
The object of this action was to reduce the titles taken by the late Lord Perth, and all the subsequent titles and conveyances of the estate, and to have it declared that the pursuer has right to the estate, and to make up titles to the same as heir-male of the said James Drummond, third Duke of Perth. The pursuer maintained that the estate was not lawfully forfeited by the attainder of Lord John Drummond, and that it was still in the hæreditas jacens of the third Duke.
The defenders made the following statements:—“(1) In the year 1695, John Drummond, Earl of Melfort, second son of the third Earl of Perth, and brother of the Chancellor, was convicted of high treason in the Scottish Parliament, and decree of forfeiture and tainting of blood was pronounced against him and his posterity. The decree of Parliament was dated 2d July 1695, and is referred to. The posterity of the said John Drummond, Earl of Melfort, by his marriage with Sophia Lundin, on account of the services which that lady's family had rendered to the country, were specially excepted from the effects of the decree of forfeiture. (2) Sometime after the Perth estates were forfeited, and after the Vesting Act of 1747 (20 Geo. II, c. 41), under which the Crown possessed the estates, James Drummond of Lundin, grandson of the said John Earl of Melfort and of the said Sophia Lundin, raised an action against the Crown, claiming the Perth estates as heir-male of James Drummond, third Duke of Perth, being the character now claimed by the pursuer and in which the pursuer sues, on the ground that James Drummond had died last vest and seized in the estates, and that the same had not been duly or lawfully forfeited by the attainder of John Drummond, the brother of James Drummond, in respect John Drummond had lived and died a professed Papist, and so had never succeeded to the estates, and was incapable of succeeding thereto. The Crown was assoilzied from the conclusions of the action. The Lords, of this date (Dec. 13, 1750), found that James Lundin, the claimant, could not be served heir-male to James Drummond, deceased, the person who stood last infeft, in respect that he behoved to connect his title through the person of James Drummond, formerly Lord Drummond, whose blood was corrupted by the attainder; and further found that, the said James Lundin not having claimed as Protestant heir before the estate was forfeited by the attainder of John Drummond, commonly called Lord Drummond, he could not over-reach the forfeiture and draw back the estate from the Crown on pretence of his being the nearest Protestant heir. The proceedings are referred to.”
And they pleaded:—“The defenders are not bound to satisfy the production, and they ought to be assoilzied, or the action should be dismissed, because—(1) the pursuer has no title to sue, in respect he does not truly possess the character of heir-male of James Drummond, third Duke of Perth, as alleged by him. (2) The pursuer has no title to sue, in respect his claim to the character of heir-male foresaid is barred by the attainder of John Earl of Melfort, and, separatim, by the attainders of James Lord Drummond, and his son Lord John Drummond. (3) Esto that the pursuer's father, Leon Maurice Drummond, was an alien; he was incapable of holding heritable estate in this country, and a right of succession to such estate could not be transmitted through him to the pursuer, who has therefore no title to sue. (4) In respect of the action and decree set forth in the defenders' statement, it is res judicata that the pursuer has no title to sue. (5) Any claim competent to the pursuer as the alleged heir-male of James third Duke of Perth is excluded by the disposition granted by him in favour of Thomas Drummond. (6) The pursuer's claim is excluded both by the negative and positive prescription, or by one or other of them. (7) The titles made up in the persons of James, Lord Perth, Charles Selkrig, and others, his trustees, Lady Wiloughby, and the defenders, or one or more of them, with the possession following thereon, form a valid and effectual title to exclude. (8) The claim of the pursuer is excluded by the Vesting Act, the Annexing Act, and Act of Restoration, or by one or other of them; and, separatim, it is excluded by the said Acts, or one or other of them, and by the subsequent titles and possession. (9) Any right under prior investitures was evacuated by the charters in favour of Lord Perth in 1785, 1787, and 1789, and the deeds subsequently executed by Lord Perth. (10) The action is irrelevant, and, upon his own statements, the pursuer has no good claim to the estates in question, or to call for production of the writs sought to be reduced.”
The Lord Ordinary ( Barcaple) pronounced the following interlocutor:—
“ Edinburgh, 12 th December 1868.—The Lord Ordinary having heard counsel for the parties, and considered the closed record on the preliminary defences and process,—Repels the pleas for the defenders as defences against satisfying the production, reserving their effect as defences on the merits; Appoints the cause to be enrolled, that the defenders may take a day to satisfy the production; And the defenders having intimated their intention to reclaim, finds them liable in the expenses of this preliminary discussion, allows an account thereof to be given in, remits the same, when lodged, to the Auditor to tax and report, and grants leave to reclaim.”
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“ Note.—From the peculiar and complicated nature of the averments and pleas in this case, the Lord Ordinary thought it proper to have a record made up and closed upon the question raised in the defences against satisfying the production. But after hearing a full debate, in which these questions were largely discussed, he has come to the conclusion that, in the position of the case, none of the pleas set forth by the defenders can be sustained as defences against satisfying the production.
“These pleas consist, in the first place, of objections on various grounds to the title to sue. The action is brought by the pursuer as duly served and decerned nearest and lawful heir-male in general to James Drummond, styled third Duke of Berth, who died in 1746. He was proprietor in possession of the Perth estates, of which he expede a crown-charter of resignation and novodamus in 1731, in favour of himself, ‘et hæredibus masculis ipsius corporis quibus deficien. aliis suis hæredibus masculis quibuscunque quibus omnibus deficien. (quod absit) aliis suis hæeredibus et assignatis quibuscunque.’ It does not appear from the statements on record that he took infeftment. He died unmarried and intestate; and after his death the estate was seized by the Crown, as being forfeited by the attainder of his brother and apparent heir, Lord John Drummond. It continued in the hands of the Crown till 1785, when, under the Restoration Act, it was granted to the late Lord Perth, then Captain Drummond; the titles being taken to him and his heirs and assignees. On the death of Lord Perth it passed to his only child, the late Lady Willoughby de Eresby, and it is now held by the defenders, her testamentary trustees.
“The action is brought for the purpose of reducing the titles taken by the late Lord Perth, and all the subsequent titles and conveyances of the estate, and of having it declared that the pursuer has right to the estate, and to make up titles to it as nearest and lawful heir-male of James Drummond, third Duke of Perth, to whom he has already expede a general service in that character. The pursuer maintains that the estate was not lawfully forfeited by the attainder of Lord John Drummond, but the foundation of his claim, in so far as it is necessary at present to consider it, is his contention that the destination to heirs-male in the old investiture is a binding and subsisting destination, which was not set aside, but given effect to by the Restoration Act, and which it was not in the power of the late Lord Perth or his daughter to alter.
“Such being the nature of the pursuer's case, he has libelled at least a prima facie title to sue the action. The alleged right which is sought to be enforced must, if it exists, be in the person of the heir-male of James Drummond, third Duke of Perth, to whom the pursuer has expede a general service in that character. There cannot be a special service, both because James Drummond held at his death only a personal title to the lands under an open charter, and because he did not die last vest and seized in them, more than one entry having been given since his death. A general service is the appropriate title for bringing such an action; Horns v. Stevenson, 6th November 1746, M. 16,117. The defenders state objections to the pursuer's title which are of the most material importance, to the effect that the descent or pedigree on which he relies, as connecting him with James Drummond, third Duke of Perth, is legally barred—1st, by the attainder of certain parties through whom it is necessary for him to trace his consanguinity; and 2dly, by the fact that his father, who is a necessary link in the descent, lived and died an alien. The facts of attainder and alienage on which these objections are founded are established by the pursuer's averments. But whatever legal validity the objections may have, they appear to the Lord Ordinary to be in the meantime excluded by the pursuer's decree of service, of which he produces an extract. The pursuer founds upon the decree as the proper and conclusive legal evidence that he possesses the character which he claims, and in which he brings the action. Such a writ cannot be impugned ope exceptionis; and if the defenders are to call it in question, they can only do so by way of reduction. It is of no importance that the defenders had no direct interest in the pursuer's service, and could not have appeared in it as competitors or otherwise. As the pursuer is now using it for the purpose of setting aside their titles, and claiming the estate from them, they have a clear legal interest and title to set it aside. The Lord Ordinary is therefore of opinion that the objections taken to the title to sue cannot be sustained as defences against satisfying the production.
“The other pleas, in so far as they are preliminary, substantially resolve into the defence of title to exclude. More especially, the defenders found upon a prescriptive title in the persons of themselves and their authors, constituted by the writs called for. But they advisedly decline at this stage to produce any of these writs, and merely refer to the pursuer's statements in regard to them. The Lord Ordinary is not aware that a title to exclude has ever been sustained where it has not been produced by one or other of the parties. It has frequently happened that the title to exclude has consisted of one or more of the writs called for. But in these cases the writs which were so founded on by the defender were produced, and the effect of sustaining them as a title to exclude was to exempt the defender from the necessity of producing the other documents called for. In so far as the plea of title to exclude is rested upon the effect of titles which are not produced, or upon prescription following on these titles, the Lord Ordinary is of opinion that it cannot be sustained as a defence against satisfying the production. The defenders further plead on the Vesting, Annexing, and Restoration Acts, as excluding the pursuer's claim. But the Lord Ordinary does not think that there is anything in these statutes which can warrant a judgment in the defenders' favour at this stage, apart from a consideration of the titles which followed on the Restoration Act.
“The defenders plead generally that the action is irrelevant. But that is very much another mode of stating the defence of title to exclude rested on the various grounds referred to in the preceding pleas, to which, for the reasons already explained, the Lord Ordinary does not think that effect can be given at present. In any view, it is so much mixed up with the subject matter of these pleas that the Lord Ordinary is of opinion that it must be reserved along with them, and, on the same grounds, to be disposed of after the production has been satisfied.”
The defenders reclaimed.
Solicitor-General, Clark, and Shand for them.
Lord Advocate, Gifford, and Rutherfurd in answer.
At advising—
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The pursuer libels as his title to follow out these proceedings, that he is lawful heir-male in general to James Drummond, sixth Earl of Perth and third Duke of Perth, under a title to the dukedom conferred by James VII after his ceasing to be King, who died on the 11th May 1746. He has expede a service in that character, which service has not been brought under reduction; and, although the validity and effect of the service as a mode of transferring to him any right to the lands which might have existed in James Drummond might have been questioned, it was not disputed—or at least in this stage of the proceedings not contested—that he de facto stands in that relation of propinquity on which his claim to serve was rested. He says that by his service he has attached a personal right to the lands and estates of Perth which was vested in James Drummond, his ancestor, which has never been taken out of his hæreditas. He sets out a series of deeds by which this personal right was, he says, so vested in James Drummond. The first is a deed of entail executed by the fourth Earl of Perth and Chancellor of Scotland, the grandfather of James the third Duke, on the 11th October 1867. By this deed it is said that the estates of Perth were conveyed, under reservation of the granter's liferent, to his son, James Lord Drummond, and heirs-male of his body, whom failing, to his other heirs male. It is said that resignation followed upon the procuratory contained in this entail, and that a Crown-charter was expede in favour of James Lord Drummond the third, and the series of heirs mentioned in the entail, on which infeftment followed.
This James Lord Drummond, the institute in the entail, in his contract of marriage in 1706, the pursuer further says, bound himself to resign the lands in favour of himself and the heirs-male of his body in that marriage, or, failing these heirs, to the heirs-male of any other marriage, whom failing, to the heirs-male of tailzie and provision contained in the infeftments of the earldom of Perth. It is said that this deed contained prohibitions against altering the order of succession. In 1713, James, the institute under the entail, and the party under obligation under the marriage-contract before mentioned, conveyed the estates, reserving his liferent, to his son (to whom the pursuer served), and infeftment was expede in his favour.
In 1731, James Drummond is stated to have expede a Crown-charter of resignation, in which he disponed the estates in his person to himself and the heirs-male of his body, whom failing, to his other heirs-male, whom all failing, to his heirs whomsoever. We have not the deeds before us, and we must therefore assume in this question in favour of the pursuer all that he affirms in regard to them. We must deal with the defenders' case on the footing that the fourth Earl executed an entail embracing the estates, and fettered with all the usual conditions, and we must further hold that a personal title stood in the person of James Drummond at the time of his death, which contained not only the destination to heirs-male, but was affected by the conditions ordinarily inserted in deeds of entail. But it is averred that no such entail was registered, and it certainly cannot be assumed that the deed of entail was registered in the Register of Tailzies. It is plainly not in the register; if it had, we should have had an extract from the register, or a reference to it. Registration of the entail is not averred, and, if necessary for the pursuer's case, cannot be assumed. It is the personal right under this deed which is said to be carried by the service.
This James Drummond was engaged in the rebellion of 1745, fought at Culloden, and escaped in a French vessel of war. Shortly afterwards an Act was passed which provided that James Drummond, taking upon himself the title of Duke of Perth, should render himself, along with other parties mentioned in the Act, “to one of his Majesty's Justices of the Peace on or before 12th July 1746, and submit to justice for the treasons aforesaid;” and if he did not render himself, it was provided that, from and after the 18th of April 1746, he should “stand and be adjudged attainted of the said high treason, to all intents and purposes whatsoever.” He died before the expiry of the period fixed for his appearing, and it was held, in proceedings which followed, that he was not duly attainted; and consequently it was so found against the Crown, who had taken possession of his estates as forfeited by his attainder. The Act contemplated, in the event of his non-appearance in compliance with the summons, that he should be forfeited as from the 18th April, the day on which the rebel forces at Ruthven in Badenoch resolved to discontinue their rebellion; but, inasmuch as death prevented the possibility of his compearance, he was held to die a liege subject of the King. James died without issue, and, on his death, his brother John survived him, and died in 1747. John Drummond was also engaged in the rebellion, and fought at Culloden, and was embraced under the same statute. He survived the period at which he was cited to appear and was attainted, and the Crown surveyed, seized, and entered into possession of his lands and estates as forfeited.
By the Act 25 Geo. II, c. 41, the estates of traitors engaged in the rebellion were vested in the Crown, but claims were allowed to be given in by parties claiming right to the estates to the Court of Session, within a period fixed by the Act. A claim was lodged on the part of Thomas Drummond of Logiealmond, as trustee under a deed executed by James Drummond, third Duke of Perth, in 1743, in which he (Drummond of Logiealmond) claimed the estates for the benefit of the parties for whom he held in trust, but the claim was disallowed, and the forfeiture of John Lord
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The estates thus surveyed and seized under the Act 20 Geo. II, c. 41, were annexed inalienably to the Crown in 1752 by the Act 25 Geo. II, c. 41, the annexing Act, and remained under the charge of the commissioners till 1785. In 1784 an Act was passed for restoring these estates to the heir-male of John Drummond, the attainted person. The detailed provisions of this act will fall to be considered hereafter. In this year, 1784, Captain James Drummond, thereafter created Baron Perth, obtained the decree of declarator fixing upon him the title of heir; but which decree, directed against a pretender to the position, is not impugned on its own merits. In 1785 Captain James Drummond obtained a charter and letters of presentation from the Crown, as the pursuer says, (Cond. 29) in favour of himself and his heirs and assignees. These titles formed the basis of the rights now held by the defenders. It is said that these titles were not in conformity with the provisions of the Act of Restoration, which authorised, the pursuer says, according to a sound construction, the restoration of the estates to the heirs-male of the family, as in the old investiture, and not to the heir-general. Captain Drummond Baron Perth, in virtue of the title so completed, conveyed, subject to certain burdens, the estates to his daughter Lady Willoughby, and possession followed, though not, as the pursuer says, for the prescriptive period; there being, as he alleges, interruptions from various causes, preventing the operation of the statute 1617, in favour of the defenders.
I may at once dispose of the defence on alleged prescriptive possession. It seems to me to be quite premature to deal with it at this stage of the case. It would require investigation; and there is as yet no proper state of ascertained fact before us as to the state of possession, on which we could proceed to give judgment for the defenders. Moreover, the plea of prescription is unsupported by production of the title on which it is rested, and therefore cannot possibly admit of being sustained at this stage of the proceedings. Prescription is not an objection to production at all.
The defenders further founded on their alleged titles since 1785, and, in the absence of any production in support of it, the defenders plead a title to exclude. A title to exclude must be founded upon rights in the persons of the defenders standing upon independent title; but it is a plain proposition stated by the Lord Ordinary, and one to which I entirely assent, that this Court cannot sustain in this case a title without production of the title-deeds instructing that title. To a successful plea of exclusive title, the production of a title in the person of the party pleading it is essential.
The defender states an objection of a more formidable character in the form of a plea upon corruption of blood arising from the attainder of the Earl of Melfort in 1690 and of James Drummond, the father of the third Duke, to whom the pursuer was served. He states that the corruption of blood of these parties excludes the possibility of his connecting himself through them with the ancestor with whom he seeks to connect himself, so as to acquire by service any right to the estates vested in him. The objection is the more formidable in that the statute restoring to the pursuer his title to the Earldom, while it removes the taint of a corrupted blood said to interpose against his resumption of the title, expressly reserves the effect of such corruption as it may affect the inheritance of lands. It is plain, as we learn from Elchies, that in a claim made to these estates by the Protestant heir of John Drummond—Drummond of Lundin—though the case involved difficulty, the Court thought the corruption of blood through the attainder of James Drummond broke down the bridge, as it was said, by which he could reach the estate. I think this objection is of a kind which, if we could entertain it, fell to be considered properly as a defence against production of titles, because no party who has not a title connecting him with anterior deeds, and whose title, if the deeds called for were reduced, would not be good to establish a right in him, can ask to throw open his adversary's charter-chest by a call for production of the deeds by which the estate is held. But we cannot, I think, entertain the objection, because the pursuer has served as heir-male-general of James Drummond, and his service is not reduced or brought under reduction. Like the Lord Ordinary, I feel that, while the service is unreduced, we must assume it to have been to all intents and purposes validly deduced, and to carry every right in the person of the ancestor which a good service could carry. I reject therefore from consideration in this judgment the element of the alleged corruption of blood as a legitimate ground of judgment on which we can at present proceed.
Another plea of the defenders I also entirely disregard,—not only on the ground of the unreduced service, but from the plain error on which it rests. The pursuer's father, it is said, was an alien, and it is contended that a right of succession cannot on that ground be transmitted through him. I am unaware of any such doctrine in the laws of this or any other county as to alienage involving a corruption of blood.
The defenders, however, say that they can make it clear, upon the legal result of the facts as stated by the pursuer, that he has no case,—that the title on which he founds cannot possibly carry any right in his favour,—and that the series of statutes appealed to by himself exclude and contradict the case as it is maintained by him. They plead the sacredness of their charter-chest from invasion by one whose title, if the deeds sought to be recovered were reduced, could establish no right in his person; and they seek, from the alleged manifest absence of interest in the pursuer according to the result, as they say, as legally deducible from the facts to which he himself appeals, that we should refuse the call for production and dismiss the action. If this contention of the defenders be well founded, it is their right to ask judgment upon it at this stage, and it is of the greatest consequence to all parties that the matter should be at once determined. If the pursuer has a case which upon the facts stated by himself cannot legally prevail, it is of the utmost consequence to his opponents that they should be freed from the delay, the expense and the anxieties, incident to prolonged litigation. It is equally important
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The first question is as to the effect of the forfeiture of John Lord Drummond in 1746. John Lord Drummond became, by the death of his brother on 11th May 1746, heir-apparent to the estates of Perth. Though by the Act the decree was to take effect as from the 18th April, the day of the dispersion of the rebel forces at Ruthven, in the event of his not surrendering before 12th July, the fact was that he did not surrender. In reference to the effect of the service led by the pursuer the defenders maintain that it could carry no right to the lands as in hæreditate jacente of the ancestor, because the estates passed to and were vested in the Crown by John's attainder. If the service can attach nothing, the pursuer's title, founded on the alleged service, can confer no right, and therefore we must conclude that the action is not maintainable. The pursuer meets the objection, in the first place, by affirming that the attainder could carry nothing, because John Drummond, when attainted, must be held by the retrospective effect of the statute to have been forfeited as from 18th April, that is, from a date anterior to his succession as heir-apparent, which would prevent him from inheriting. The defenders reply, that when the succession opened, John had capacity to inherit, because it was not then known whether he would or would not outlive the period fixed for his surrender, or actually surrender before the period arrived. The matter seems to me clearly in favour of the defenders on principle, and on very direct authority;—on principle, because till the expiry of the 12th of July, as was found with respect to James, there was no forfeiture; and on authority, because the very question was raised, and the opinion of the Court here and in the House of Lords expressed on it in a case with reference to these very estates. It is not res judicata, but it is of the highest authority; and it is founded on considerations which necessarily involve the very matter upon which we are now asked to pronounce a judgment. The case is reported in I Craigie and Stuart's Appeals, 503.
The Court of Session, on 1st December 1750, found that John Drummond, second son of the late Lord Drummond, was attainted of high treason; was, upon the 11th of May 1746, when James Drummond his elder brother died, capable to take by descent from his said elder brother, and that the estate of Drummond in question did then descend by James' death to John Drummond, now attainted, and was forfeitable and forfeited by the treason and attainder of the said John Drummond, and that the said trust-disposition of Thomas Drummond, now claimed on, is not sufficient to exclude the forfeiture. An appeal having been taken from that interlocutor, the judges were directed to give their opinions on a question framed with a view to obtain their opinion upon the very case which is now presented to us in argument. The question was put, “Whether by the law of England, John Drummond, second son of the late John Drummond, was, on the 11th of May 1746, capable of taking lands by descent? And whether, by his not rendering himself to justice on or before the 12th July 1746, according to the Act of the 19th year of his present Majesty, such descent became divested or avoided, so as to prevent the forfeiture in prejudice of the Crown? Whereupon the Lord Chief Baron of the Court of Exchequer, having conferred with the Judges present, acquainted the House ‘that they were unanimously of opinion that the said John Drummond was capable at that time of taking lands by descent; and that, by his not rendering himself to justice on or before the 12th July 1746, according to the aforementioned Act of the 19th year of his present Majesty, such descent did not become divested or avoided so as to prevent the forfeiture in prejudice of the Crown.’ And, upon due consideration had of what was offered on either side in this cause, it is ordered and adjudged, &c., that the said petition and appeal be, and is hereby dismissed, and that the said judgment be affirmed.” Therefore it appears to me that we have an authoritative decision of the highest tribunal to the effect that the forfeiture did not operate to prevent the succession opening to John Drummond upon the death of his brother on 11th May; and consequently, if the right in John Drummond was such that there was conferred upon the Crown by the forfeiture a right to the entire lands, no objection can be stated founded upon the mere fact of the alleged forfeiture being retrospectively dated as from the 18th of April. This case, and the principles recognised in it, seem to me to determine another branch of the pursuer's argument, as raised in the 18th article of his condescendence. He says that the attainted party was incapable of taking by reason of the Act against Papists holding landed estate, 1700, c. 3. The matter was fully considered also, and it is clear, first, that Papacy is made by that statute an irritancy which must be declared, and that adherence to Popery after the adoption of the proceedings pointed out in the Act is necessary to exclude the Popish heir. That question was raised in the case that was brought by Mr Drummond of Lundin, the Protestant heir at the time, before the Court of Session. It was so brought and decided upon the footing of that interpretation of the Act, and upon principles which I think must commend themselves to every one. The decision is given in Elchies, and, in so far as it relates to that branch of it which refers to the application of the Statute 1700, c. 3, we have in No. 16, voce “Forfeiture,” this statement of the view of the Court—“We thought that the succession is not by the Act of 1700 established in the Protestant heir, without either a service or some other legal act, to ascertain that the nearest heirs professed Popery, and the Protestant heir's own title; that till then the right of apparency remains with the Popish heir, who may possess and contract debts, and be charged to enter heir, yea, and may be served and infeft if nobody oppose, and therefore may forfeit; and the succession having on the 11th May 1746 devolved to John, we thought the estate became forfeited by his attainder, and therefore dismissed the claim.”
A much more sweeping objection was stated, viz., that an heir-apparent's right is in itself limited, and that forfeiture cannot extend beyond the heir's interest, which is that of a temporary kind; and that although he has a right to continue an ancestor's possession during apparency, the estate will not be vested by any act of his unless under the operation of the statute, by which it is provided that a future
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The pursuer further pleads that the right of the heir-apparent, being limited by the fetters of the
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The statute proceeds on a general preamble of the services of the heirs and families of attainted persons or most of them, and of the expediency of disconnecting the estates and restoring them “to the heirs or families of the former owners.” Section 10 provides—“And whereas the estate of Perth, which became forfeited by the attainder of John Drummond taking upon himself the stile or title of Lord John Drummond, brother to James Drummond, taking on himself the stile or title of Duke of Perth, stood devised before the forfeiture to heirs-male; and whereas the said John Drummond died without leaving lawful issue of his body, and it is not yet ascertained who is his nearest collateral heir-male.” Now, there is a statement that the estate stood devised before the forfeiture to heirs-male. The party is to be discovered who holds that character, but there is to be a disposition given to the heir-male when he shall be ascertained—;in other words, to the party afterwards Baron Perth, who would have been entitled to succeed according to the investiture of the estates, and to the heirs and assigns of such heirs-male. There is first a question as to the exact copying or right printing of the Act. It is said that the word “heirs-male” must have been originally in the copy in the Parliament rolls, and that it occurs in a copy in the Privy Council. It appears in the Parliament rolls as “heir-male,” and the letter “s” is said to have been erased. But whether we read it as heirs-male in the first case in which it occurs, or as heir-male, it seems to me to be quite clear, according to the intent and meaning of this provision, that the disposition is to be in favour of the party who shall prove himself to be the heir-male, and the heirs and assignees of such heir-male. Now, the question is, what is meant by the use of that expression “heirs and assignees of the heir-male.” It must be admitted that the expression heirs and assignees is the ordinary mode of expressing a destination to the heirs-general of a party who is to receive a disposition. Undoubtedly the words are flexible, and there are conditions in which it is possible to read these apparently general words with a descriptive meaning. The conditions, so far as I know, which occur in which an interpretation of that kind has been admitted are;—first, when these appear in the previous investitures of the subject held by the party who has acquired an accessory right; and secondly, where the deed supplies such a meaning from the context.
It covers an accessory right, and it is held that, though taken in general terms, it is not to detract from the effect of the disposition or holding of the principal subject for which the acquisition has been apparently made as an accessory—teinds, for example, to the possession of land. There is no such case here. The reference to the prior investiture is made only for the purpose of discovering the first individual to take, and restoration is not to be made to heirs-male, but to the party who is heir-male, and who shall show himself to he so, and to his heirs and assignees. There is no principal and accessory in the question, and there is nothing to meet the only other case in which I think there has been such a construction given, and that is where, in putting the various parts of a particular instrument together, and construing the use of the expressions of one by the expressions occurring in other portions of the same instrument, a restricted meaning may be attached to the words. There is no such thing here. If we can form any judgment from the similar grants contained in the Act of Parliament, they are all to heirs-general, and heirs and assignees. I am not therefore able to say that the parties who made out the grant in conformity with the view of the statute, intending the grant to be one to the disponee and his heirs-general, did otherwise than right in construing the statute under which these deeds were framed. There is no objection made
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The title on which the pursuer libels his right to insist in this action is, decree of general service as “nearest and lawful heir-male in general to the deceased James Drummond of Perth, who took on himself the style and title of third Duke of Perth.” This James Drummond, it is admitted, was never married, and died intestate in 1746. He had been infeft in the fee of the Perth estates while yet a pupil, under reservation of his father's liferent, in 1718; and in 1781, some years after his father's death, he expede a Crown-charter of resignation and novodamus in favour of himself and his heirs-male; but on this charter no infeftment seems to have been expede.
The Lord Ordinary in his note has stated that his service is conclusive evidence that the pursuer possesses the character which he claims, and that this can be redargued only by reduction. In this remark I entirely concur. But it does not follow that the action in which the pursuer now insists in virtue of that title must be sustained. There may be no estate to be taken up by the heir-male of James, third Duke of Perth, upon the pursuer's own statement of the grounds on which he insists for decree, as concluded for in the summons. And supposing upon that statement, it clearly appears that the estates of the Perth family, now claimed by the heir-male of James, third Duke, have irrecoverably passed away from those heirs-male,—it must follow that the action should be dismissed as irrelevant on the face of it. This is the ground taken by the defenders in the recent argument. And that there are other grounds of defence, which cannot be entertained at this stage of the proceedings, is no bar to those defences being considered which go to exclude the action altogether.
The pursuer justly contended, and the Lord Ordinary has recognised the principle in terms which do not admit of exception, that when an action of reduction is met by the preliminary defence of title to exclude,—the plea cannot be entertained in the general case without production by the defender of the titles on which the defence is maintained. And had this been a discussion solely relating to that defence, no objection could be stated to the view's on which the Lord Ordinary's interlocutor proceeds. But the defence pressed on this Court is not of that nature at all. No doubt if well-founded, the pleas contended for must result in the exclusion of the action without further procedure. There may be such ground for irrelevancy on the face of the summons and record as to demonstrate that the demand by the pursuer, under the title which he libels, cannot and ought not to be entertained. That such a defence may be competently stated at this stage, and, if well-founded, lead to the dismissal of the action in limine,—is fully recognised in the opinions of this Division of the Court in the recent case of St Leonard's College, St Andrews, which was referred to in the debate. It is therefore for inquiry whether the defenders have shown that, under the admittedly subsisting titles to the estates, no claim to them can be legitimately advanced by the pursuer, under the character in which he sues.
The estates were certainly vested in James, the third Duke, at the period of his death in 1746, under titles which contained a destination to him and his heirs-male. I think it must be Held that, under the open Crown-charter of 1731 he held the superiority, and that under his infeftment in 1718, he was feudally vested with the dominium utile of the estates, and having died unmarried the right to the estates descended to his brother, Lord John Drummond, as his heir-male, and vested in him as I heir-apparent from the moment of his brother's' death in May 1746. His attainder became operative in the month of July following, and he died in 1747.
Now, (1) if the attainder carried the fee of the estates to the Crown not less effectually than if Lord John had completed his feudal title; and (2) if it be the fact that the Crown and the parties on whom the right to the estate was conferred have ever since had undisputed possession of the estates on unexceptionable titles, no right can be held to have remained in the hereditas jacens of James, the third Duke. For on that supposition the Crown and its disponees have absorbed all right and title to the estates, which in that view must be held to have been irrevocably carried by his attainder away from the male heirs of the original destination altogether. Consequently, the pursuer's general service to James must be thereby rendered inept for the purpose, to serve which it is founded on as a title to sue this action.
The three propositions which the defenders must establish in order to succeed in having the pursuer's action dismissed at this stage are thus:
(1) That the fee of the estates was carried to the Crown by the attainder of Lord John Drummond, although he was never infeft in the lands.
(2) That the right thus acquired by the Crown
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(8) That by the Act of Restoration in 1784 the estates were not restored to heirs-male in terms of the original destination of the tailzie, but were habilely granted—on condition of payment by the disponee of the large sum of money stipulated to be paid (£52,000 and upwards)—to the then heir-male of Lord John Drummond, and to his heirs and assignees generally.
1. On the first point there really exists no doubt regarding the law of Scotland, if that law is to be gathered, as it must be, from institutional writers, and from decisions of the Court. An apparent-heir committing treason, and being attainted after the succession has opened to him, occupies a different position from an heir apparent whose ancestor is still alive at the date of the treason and attainder, and to whom the succession opens thereafter. It is to this last case alone that some of the authorities refer as admitting of dubiety. The case of an heir to whom the succession has opened, and who is possessing on apparency at the date of his forfeiture, is entirely different. The right to take up the estate being in him, it falls to the Crown by his forfeiture, as certainly as if his feudal title had been completed, and merges in the Crown, without infeftment, by virtue of its pre-eminent title as Lord Superior of the whole feudal estates of the kingdom. Dirleton well states the principle of distinction between the two cases which I have put. In stating his ratio dubitandi on the question whether, when the heir has committed treason in the lifetime of his kinsman, the defunct's estate will fall to the King or go to the next heir—he says that an apparent heir in possession of an estate, and having hæreditas delata before he commit treason, the same should fall to the King, ‘seeing he was hæres habilu, and had jus radicatum in his person before his treason” (p. 76). Stair, again, treats the subject at length (3, 3, 37),—the only doubt expressed by him being in reference to the case of a succession opening to an apparent heir after his treason and attainder. To the other authorities it is needless for me to refer, as they have been already fully noticed. I may only notice Baron Hume, the latest writer on this branch of the law, who, in his Criminal Law, vol. i, p. 548, thus writes, “By (reads).” And, as regards the decisions of the Court, there is not one that throws any doubt on the general question. Indeed, the decisions referred to in the argument in reference to the Perth estates themselves, all proceed upon the footing of Lord John Drummond's attainder having carried to the Crown the fee of the estates to which he had succeeded as heir-apparent.
An attempt was made to show that, as Lord John's treason was committed before the death of his brother, the case is to be dealt with as within the class of cases on which doubts have been expressed by the authorities. But I cannot so view the question. For, although the battle of Culloden occurred before the death of his brother James, the Act of Attainder declared that the parties therein named, including the two brothers, might avoid the attainder by surrendering themselves on or before the 12th of July 1746, and it was only in the event of their not doing so that they should stand attainted as from and after the 18th of April 1746. Now, as his brother James died in the month of May 1746, and it has been decided by the Court that the attainder did not affect him—the right of succession opened at that date to Lord John; and he was thus in possession of the estates on apparency when the attainder declared by the Act took effect, in consequence of his not surrendering before the 12th of July 1746. Hence, the estate which was in his person as heir-apparent fell to the Crown, and this forfeiture could not be evaded by his not surrendering before that date, notwithstanding that the attainder was declared to operate retro as from 18th April 1746. On the same principle, as the Court held that James when he died in May was unattainted, his brother Lord John, to whom the succession opened at that date, necessarily became vested with the right of apparency when still unaffected by the attainder. Accordingly, as appears from the decisions and notes of Lord Elchies, this very question was considered and determined by the Court, see Elchies' Notes, p. 149, voce “Forfeiture.” His reasoning is quite satisfactory; and it is upon that footing that the lands were seised by the Crown and have been possessed ever since.
I cannot take any other view of what passed in the House of Lords in affirming, on 30th April 1751, the judgment of this Court in the case of Drummond of Logiealmond, than that it was clearly recognised as a fact, that these estates were in Lord John Drummond legally, as heir-apparent, when the attainder took effect, and consequently that they became vested in the Crown. I may refer also to a case which occurred in 1760, Duke of Athole v. His Majesty's Advocate, D. 4766, where the Crown's right to these estates was clearly viewed as good and valid to the effect of ousting a demand under the Clan Act by the Duke of Athole. I am not sure that the force of that judgment was fully appreciated when it was noticed at the debate. The Duke of Athole, who was subject-superior of certain of the estates belonging to the Perth family, came forward in 1760 and claimed from the Barons of Exchequer these estates as vesting in him under the provisions of the Clan Act. The Lord Advocate of the day did not specially refer to the right declared as in the Crown to Lord John's estate in 1751, but what he said was this:—“The terms of the Clan Act, which alone gave estates of this kind to the subject-superior, don't apply to the circumstances of this case, because the traitor never, in point of fact, was your vassal in terms of the Act; Lord James, who was never attainted, was not your vassal when he died in May; Lord John could never be your vassal, because by the Act of Attainder, which took effect as from April, your right as superior was destroyed under the Clan Act.” The Crown was thus again successful in maintaining that the estates had been forfeited by the treason and attainder of Lord John.
2. The second proposition does not admit of doubt, assuming the fact that the entail was unrecorded. A clear and succinct view of the law as to this matter is given by Mr Sandford in his work on Entails. Prior to the union of the kingdoms, it was expressly enacted by the Statute 1690 that heirs of entail should not be prejudged by the forfeiture of their predecessor, where the entail contained prohibitory and irritant clauses, and was duly recorded in terms of the Act 1685. The protection applied only to that case, and the deed of
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The Register of Entails is a public document, and had the deed been recorded as enjoined by the Act 1685, it was capable of being instantly verified had the fact been that the deed was in the register. But no allegation to that effect is made, and it must be assumed that it was an unrecorded deed. Had it been otherwise, having regard to the litigation that has taken place in reference to these estates, it is not conceivable that the right of the Crown should have been left undisputed for so long a period as since 1747. And, besides this ground of objection to the entail, it is alleged, and not disputed, that the restrictions were not directed against the disponee, who afterwards executed a new deed leaving out all restrictions under which the estates were possessed till 1746. This is the deed of 28th August 1713 by James Lord Drummond, reserving his own liferent in favour of his eldest son James, then in pupilarity, and the heirs-male of his body, whom failing, to his other heirs-male whatsoever. This is the deed referred to in Article 7 of the record.
3. There remains the third proposition, viz., that the Act of Restoration 1784, cannot be held to affect the question favourably for the pursuer. The Act is “to enable his Majesty to grant to the heirs of former proprietors, upon certain terms and conditions, the forfeited estates in Scotland,” and the 10th section relates particularly to the Perth estates. It sets forth that these estates became forfeited by the attainder of Lord John Drummond, and stood devised before the forfeiture to heirs-male. Then it is set forth that Lord John had died without issue, and that it was not yet ascertained who was his nearest collateral heir-male. It is then declared to be lawful for his Majesty to dispone the estates “to the heir-male of the said John Drummond, who would have been entitled to succeed by the investitures of the said estate had it not been forfeited, and to the heirs and assigns of such heir-male.” Acting under this statutory authority, the estates were conveyed by the Crown, as narrated in the record, to Captain James Drummond, his heirs and assignees, in 1785; and under his completed title he continued to possess the estates till his death in 1860. He also completed titles about the same period to the portions of the estates held from subject-superiors. This Captain Drummond was created a British Peer in 1797, and died, leaving an only child, the late lady Willoughby d'Eresby, by whom the estates were possessed till her death, in 1865, in virtue of the titles referred to in the record. Supposing the Crown had right to give over the estates, as they did in 1785, to Captain Drummond and his heirs and assignees generally, there would seem to be an end of the claim advanced in this action. And that such power was possessed by the Crown depends upon the answer to be returned to the first two propositions which I have stated. If I am right in answering them in the affirmative, then the estates did vest in the Crown in fee-simple, and were so held at the date of the Act of Restoration in 1784. And when by that Act power was conferred on his Majesty to dispone the estates to the heir of the family at the time, his heirs and assigns—in other words, in fee-simple,—this was no innovation upon the existing state of the titles at the date. It was a gift to the heir of the family and his heirs-general, and not a revival of the original destination to heirs-male. Hence, the effort of the pursuer to construe the Act as empowering the Crown to give the estates only to heirs-male,—in which case the title completed by the heir-general, i.e., the late Lady Willoughby, as it might have been contended, required the aid of prescription for its validity. Had the case so stood, the course which the Lord Ordinary has followed might have been the right one, for the plea of prescription could not have been satisfactorily disposed of without satisfying the production. But no such course can be necessary, assuming the Act of Restoration to admit of no other construction than that which it received in 1785, when the estates were conveyed by the Crown to the then heir-male of the family and his heirs-general. The case must be judged of on the same footing as if the estates had still been in the Crown under the forfeiture of Lord John in 1747—that is, in fee-simple—and in the Crown disponee as continuing that fee-simple title till now.
On these grounds, I have arrived at the opinion that the pursuer under his general service to James third Earl of Perth has stated no relevant case on which he can rest his claim in this action. There is, in truth, no estate in the hæreditas jacens of James third Duke of Perth, according to the pursuer's own statement in the record, which can be taken up by his heir-male in general,—at least, no right to those estates which are vested in the defenders, and of which it is the professed object of this action to deprive them.
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Shand—Your Lordships will sustain the 8th and 10th pleas. Will your Lordships pronounce special findings?
Shand—With reference to what fell from your Lordship, I think it right to say that there is no admission on record that the present pursuer, though he holds the service, has connected himself by relationship with James Drummond. We did not dispute that, for the sake of argument.
Shand—It was assumed for the purposes of the argument, because we do not feel that we could raise the question, except in a reduction of the service; but I merely mention it lest there should be any expression in your Lordship's opinion that might bear that meaning.
Agents for Pursuer— J. & J. Turnbull, W.S.
Agents for Defenders— Dundas & Wilson, C.S.