Scottish Court of Session Decisions

In this petition to feu the Lord Ordinary ( Mackenzie) has pronounced the following interlocutor, which has become final:—

“ Edinburgh, 19 th July 1870.—The Lord Ordinary having resumed consideration of the petition with the reports of Mr Thomas Brodie, W.S., and of Mr Colledge, Nos. 13 and 16 of process, and proceedings, Finds that the procedure under the petition has been regular and proper; and that the portions now proposed to be feued, along with that portion already feued under the former application to the Court, do not exceed in all one-eighth part in value of said entailed estate mentioned in the petition, and do not form any part of the mansion-house, offices, or policies of the same; and that the proposed feuing would be permanently advantageous to the said estate: Interpones authority, and authorises and empowers the petitioner to grant feus of the seven parcels of land specially described in the petition, and delineated on the plan No. 17 of process, which is subscribed by the Lord Ordinary as relative hereto, and that at such times and in such portions as the petitioner may think fit; fixes and determines the minimum rates of feu-duty at which the said lands may be feued to be the following;—viz. ( first) the minimum rate of £35 sterling of yearly feu-duty per imperial acre for the parts of said lands first and second described in said petition; ( second) the minimum rate of £171, 10s. sterling of yearly feu-duty per imperial acre for the parts of said lands third and fourth, fifth and sixth described in said petition; and ( third) the minimum rate of £12 sterling of yearly feu-duty per imperial acre for the part of said lands seventh described in said petition, and decerns: Appoints a draft of a form of feu-charter, feu-contract or feu-disposition, to be made use of under this application from time to time as such feus shall be granted, to be lodged in process, and when lodged, remits to Mr Thomas Brodie, W.S., to revise and adjust the same, and to report.

Note.—The 24th section of the Rutherfurd Act authorises the heirs of entail in possession to grant feus of the entailed estate, ‘such feus’— that is, feus granted under the powers of the Act—not exceeding in all one-eighth part in value for the time of the estate. There is no prohibition in the Act similar to what occurs in the Aberdeen Act against the heir exercising the said statutory powers in addition to the powers conferred by the deed of entail, so as to exceed in the whole the proportion of ground authorised to be feued by the Act; not only so, but the said section of the Rutherfurd Act provides that nothing therein contained shall prevent the heir in possession from exercising any power in the entail of granting feus more extensive than the power conferred by the Act. The Lord Ordinary is therefore of opinion that the petitioner may exercise both the power conferred by the statute and the power conferred by the deed of entail.

The Lord Ordinary is also of opinion that the value for the time of the entailed estate, which the heir in possession is prohibited from selling, means the yearly value of the whole estate, independent of any exercise of the statutory power. Such value is, he thinks, a more accurate criterion of the value of the estate, and of an eighth part thereof for the time than the estimate of skilled witnesses as to the actual intrinsic value, more especially seeing that the power conferred by the statute is to feu or lease certain parts of the estate for an annual return. Such actual intrinsic or selling value also depends so much upon contingencies and upon speculation as to render its ascertainment with any certainty very difficult. This appears to be the opinion of the skilled reporter.

Page: 710↓

But the yearly value can be with ease and certainty, and has been, ascertained.

“It appears to be clear, as stated by Mr Brodie, that the power to feu now sought ‘would immensely increase the value of the estate.’”

Thoms and Balfour for petitioners.