Scottish Court of Session Decisions

Under an entail executed by the late Murdo Mackenzie, Esquire of Ardross, the petitioner is nominatim heir-substitute; and he now applied for service as nearest and lawful heir of tailzie and provision in special to his brother, the deceased Hugh Mackenzie, Esquire of Dundonnell. His petition was presented on 24th November 1869, and was opposed by Mrs Catton, on the ground that the lands in regard to which he applied for service were held under a defective and invalid entail, and that she had brought an action of declarator to that effect. She also maintained that her father, Mr Hugh Mackenzie, being institute under the entail, was entitled to disregard its fetters and hold the lands under it in fee-simple, and to dispose of them, and that he had availed himself of this power in a general disposition of his estate and effects, heritable and moveable. This deed was executed by him on the 4th of July 1854, and, along with a codicil thereto, dated 22d February 1864, recorded in the books of Council and Session on 9th August 1869. By it Mr Mackenzie conveyed to certain trustees the whole estate and effects, heritable and moveable, real and personal, of what kind or nature whatsoever or wheresoever situated, then belonging, or which should pertain and belong, to him at the time of his decease; and the trustees by assignation, dated 18th and 20th December 1869, assigned the deed of trust, to the extent of the general trust-disposition, to Mrs Catton, the sole beneficiary under it. On the narrative of Mr Mackenzie's infeftment, the general disposition by him to the trustees, and its assignation by them to her, she made up a title under sections 19 and 23 of the Titles to Land Consolidation Act 1868, by notarial instrument, which was recorded on 21st November 1869.

On 22d December 1869 the Sheriff of Chancery ( M'Laren) pronounced the following interlocutor and annexed note:—“The Sheriff having heard counsel on the objections offered on behalf of Mrs Mary Mackenzie or Catton, with consent of her husband, as also on the petitioner's motion for a diligence to recover the title-deeds of the estate to which the petition relates, and the said objections with the deeds therein referred to having been received and seen, Finds (1) that the respondent Mrs Catton does not claim the character of heir of provision of the deceased Hugh Mackenzie of Dundonnell; (2) That the respondent claims the estate to which the petition relates in the character of beneficiary and residuary legatee under a deed of trust granted by the said Hugh Mackenzie, containing a general disposition of heritable estate; which deed, to the extent of such general disposition, has been assigned by the trustees to the respondent; (3) That the respondent is not infeft, and has not the means of presently obtaining herself infeft, in the estate in question. In these circumstances, Finds, in point of law, that the respondent has not a legal title to oppose the petitioner's claim of service, and therefore repels the said objections as defences to this petition, and decerns: Farther grants diligence at the instance of the petitioner as craved, and appoints the haver or havers to appear at this diet of Court and exhibit the title-deeds called for.

“ Note.—The petitioner is nominatim heir-sub-stitute under a deed of entail of the estates of Dundonnell and others in the counties of Ross and Cromarty, executed by his deceased father Murdo Mackenzie. In consequence of the death of his elder brother, Hugh Mackenzie, without issue, the succession has opened to the petitioner under the destination in the deed of entail, and unless he stand excluded by a preferable title, he is clearly entitled to be served heir of provision in terms of his petition.

The respondent Mrs Catton is the residuary legatee under the trust-settlement of the institute of entail, Hugh Mackenzie, through whose death the succession has opened. She claims the estate on the assumption that the entail is defective in certain particulars, which render it invalid under the provisions of the Entail Amendment Act; that Hugh Mackenzie was entitled to dispose of the estate as a fee-simple proprietor, and that he has effectually done so by the general conveyance contained in his settlement. Since this petition was presented, an action of declarator to the effect here stated has been commenced in the Court of Session. Mr Mackenzie's trustees have executed an assignation of the deed of trust in favour of the respondent, to the effect of making over to her their personal right under the general disposition, and on this title she claims right to oppose the petitioner's service. It would seem that she is not in a position to take infeftment on the assignation in her favour, because under the Titles to Land Consolidation Acts 1868–1869, secs. 22 and 23, and relative schedules, registration to the effect of giving infeftment is only competent in the case of assignations of deeds disposing of specific heritable estate. Indeed it is obvious there can be no infeftment upon a general conveyance of unascertained subjects.

The question thus arises, whether a personal right to lands is a good title to the disponee to oppose a claim of service. This is a question arising at common law, for the statutes regulating the present procedure in services make no alteration of the law in this respect. On the authority of the cases of Suttie v. Duke of Gordon, Mor. 14.457, and Douglas v. Duke of Hamilton, Mor. 14.457, the Sheriff holds that a disponee not infeft has not a legal title to state objections to the proceedings in a service. He is of opinion that a party who is not in the position of a claimant under a competing petition can only object on the ground that he is himself feudally vest in the subject to which the special service relates. It must be remembered that a service is a proceeding of a purely formal character. It is not adapted for the determination of such questions as are involved in the respondent's claim to the estate of Dundonnell. Moreover, a decree of service in favour of the petitioner is in no respect prejudicial to the assertion of the respondent's claim by action of declarator; and if it should be found in that action that she is entitled to the estate in the character of disponee, the judgment in her favour will enable her to reduce the service as a matter of course. On the other hand, supposing the objections to be held relevant in this process, it is difficult to see how this Court could have disposed of them

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on the merits. It is obviously beyond the province of the Sheriff to give a judicial opinion on the validity of the deed of provision as an entail. The deed in question is the subsisting investiture; the fee is vacant, and the petitioner is the heir. These considerations, in the opinion of the Sheriff, are sufficient for the decision of the claim of service.

With regard to the formal objections taken to the proceedings, the Sheriff is of opinion—(1) That the statutory requirement of a special mandate is sufficiently complied with by the production of the power of attorney, containing authority to make up titles; (2) That this Court has all the authority to grant diligence for the recovery of writings, or to compel the attendance of witnesses, that is possessed by any of the inferior courts in Scotland. The power of granting diligence has been exercised ever since the establishment of the Court of Chancery in 1847, and without such a power the business of the Court, even in ex parte applications, could not be carried on.”

“With regard to the formal objections taken to the proceedings, the Sheriff is of opinion—(1) That the statutory requirement of a special mandate is sufficiently complied with by the production of the power of attorney, containing authority to make up titles; (2) That this Court has all the authority to grant diligence for the recovery of writings, or to compel the attendance of witnesses, that is possessed by any of the inferior courts in Scotland. The power of granting diligence has been exercised ever since the establishment of the Court of Chancery in 1847, and without such a power the business of the Court, even in ex parte applications, could not be carried on.”

Against this interlocutor Mrs Catton appealed.

Lord-Advocate, Dean of Faculty, and Duncan for her

Solicitor-General and Shand in answer.

At advising—