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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mrs Grieve or Dingwall v. Isabella Burns and Others [1871] ScotLR 8_385 (28 February 1871)
URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0385.html
Cite as: [1871] SLR 8_385, [1871] ScotLR 8_385
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SCOTTISH_SLR_Court_of_Session
Page: 385↓
Court of Session Inner House Second Division.
v.
Facts:
In an action of reduction at the instance of a lady, who attained majority in 1844, of certain decrees of constitution and adjudication obtained against her in 1827—she not having a curator ad litem, appointed to protect her interest— Held (1) That said decrees must be considered as having been pronounced in absence, and were voidable; but (2) that the onus lay on the pursuer to show that they were erroneous on their merits; and (3) that she had not done so; and defenders assoilzied.
This action was at the instance of Mrs Dingwall, daughter of George Grieve, and grand-daughter of James Grieve, Ballomill, Fifeshire, against Miss Burns, daughter of James Burns, and granddaughter of James Burns senior, tenant in Peter-head; D. M. Makgill Crichton of Rankeillor, a pupil; and William Wood, accountant, his factor loco tutoris; and James Nisbet, residing in Ballomill. The object of the action was to reduce and set aside certain decrees obtained in 1827 following on bills and accounts alleged to have been owing by George Grieve to James Burns senior, in all amounting to £250, by which the small holding of Ballomill, with £50 per annum, was, in 1828, adjudged from the pursuer as heiress of her father and grandfather, and became the property of James Burns senior, by whom part was sold in 1839 to the defender Crichton's grandfather, and the remainder in 1847 to the defender Nisbet.
The pursuer stated that the property in question belonged to her grandfather, James Grieve, who died in 1819 or 1820, and was succeeded by his son, her father, George Grieve, who possessed it for about three years, and died in 1822, without having ever made up his title. She also stated that she was born in 1821, and was a pupil when the decrees in the actions of constitution and adjudication were pronounced against her, and that she had no tutor or other guardian, and that no steps were taken to protect her interests. It was further alleged that the bills were forgeries, and, to the extent of £140, prescribed, and that the other debts
Page: 386↓
were fictitious. Defences were put in for Mr Crichton and Mr Nisbet, in which they stated that the property had been bought by them or their authors in bona fide, and for onerous considerations, and had been since possessed by them; and they pleaded, inter alia, that, the decrees having been unchallenged for upwards of forty years, could only be set aside on the head of fraud or falsehood. The case originally depended before Lord Manor, but after his death a judgment was pronounced by Lord Ormidale, finding that the decrees against the pursuer were decrees in absence, and were pronounced against her when in pupilarity, and that her interests were unprotected. His Lordship also found that the bills were, to the extent of £140, prescribed at the time when the proceedings were taken in 1827; that the pursuer had failed to prove that they were forgeries, or that the sums contained in them were not resting owing; and that the decrees were not absolutely void, but fell to be dealt with as decrees in absence. His Lordship subsequently pronounced a judgment in favour of the defenders, repelling the whole reasons of reduction, and finding them entitled to expenses, but reserving power to modify the same. In a note to this latter judgment, his Lordship explained that the first question raised was whether (the decrees being now held to be decrees in absence) the defenders were bound to establish that they were well founded on their merits, or whether the pursuers were bound to prove that they were not so. His Lordship adopted the latter view. On the merits of the case, his Lordship had proviously disposed of the allegation of forgery, and the remaining objection to the bills was that they were prescribed in 1827, and therefore the decrees could be of no force. As it was shown, however, that at that date the whole amounts contained in the bills and accounts were embraced in Sheriff-court decrees, which were valid at that date (though they were decrees in absence), his Lordship was of opinion that the whole sum in respect of which the decrees of constitution and adjudication against the pursuer and the property had followed, was, at the date of these decrees, due and resting owing by the pursuer as representing her father. It was further objected by the pursuer that no proof was adduced in the proceedings in 1827 that George Grieve, her father, was for three years in possession of the property as heir of his father, which was necessary to make his debts a charge against the land. But his Lordship held that the pursuer had not proved this allegation by the only competent means—namely, production of the proceedings in the actions in 1827; and he further observed that in the present action the pursuer admits that her father was three years in possession.
The pursuer reclaimed.
M'Laren for him.
The Solicitor-General and Blackburn in answer
At advising—
The action at the pursuer's instance is for reduction of certain decrees of constitution and of adjudication obtained against her in absence in July 1827 and 15th February 1828, when she was a pupil, for certain debts alleged to have been due by her father. Upon these decrees and relative charges, and charter of adjudication and infeftment following thereon, possession of the lands adjudged, which belonged to the pursuer's grandfather, has been held and enjoyed for upwards of forty years by the defenders and their authors. The pursuer became of age in August 1844; but it was only in March 1868 that this summons of reduction was brought, on the grounds set forth in the record.
The chief objection contended for is, that the decree of constitution, having been obtained against a pupil in absence, it is altogether null, and not merely to be opened up with the view of ascertaining whether, on the merits, it ought to have been pronounced. So far as appears from the terms of the extract decree, the decree bears to be directed against the pupil as representing her father and grandfather, without mention of tutors and curators. But from the examination of the summons and productions, it is certain, not only that the former was directed against the pupil and her tutors and curators, if she any had, but that there was edictal citation of the summons to the like effect. The decree afterwards obtained, therefore, was not open to the irregularity alleged. On the contrary, it must be held that the action was duly raised against her and her tutors and curators. No doubt decree was taken without the appointment of a curator ad litem, and it was consequently in absence. But the effect of this is not to nullify the whole procedure. It is simply to render the decree liable to be opened us that its merits may be investigated. It appears to me that the Lord Ordinary has rightly stated the law on this point. By the decisions of Sinclair v. Stark, 15th January 1828, and Calderhead v. Fife, 26th May 1832, it has been fixed that no appointment of a tutor ad litem should take place until appearance has been entered for the pupil, the decree being held to be in all respects like an ordinary decree in absence. The case of Craven v. Elibank's Trs., 9th March 1854, on which much stress was laid by the counsel for the pursuer, was peculiar in this respect, that there were tutors and curators who had accepted the office, and who were at the same time trustees under the father's settlement; and yet, in the action, while appearance was entered for the pupil and for those parties as trustees, no appearance was made for them as tutors and curators for the pupil; and hence it was held that the pupil was entitled to be reponed against the decree pronounced in the action in integrum. These decrees were in foro, and could be treated only as such in the subsequent challenge of their validity. I do not think that this decision, therefore, can be held to affect the principle which, as I think, is applicable to the present case.
Dealing with the decree of constitution, however, on the footing of its being held as in absence and to be examinable, there is no good ground on which its validity has been shown to be challengeable. There is no ex facie objection to it as was alleged, and the plea that the bills were prescribed, judging from their dates and the date of the summons of constitution, is effectually met by the precepts on the Sheriff's decree, to which the Lord Ordinary refers—were it necessary for the defenders at this distance of time to support the decree on its merits,
Page: 387↓
Something was indicated in the course of the discussion to the effect that it might be competent for the pursuer, even after so long a period, and her continued silence for upwards of twenty years since she came of age, to exercise her power of renunciation. To this there is a good answer, not less in the delay to exercise the privilege, than in, the unjust consequences which must result from any such proceeding upon the defender's rights. This is not a case where a decree of constitution is attempted to be founded upon, to the effect of doing diligence on it against the person and effects of the pursuer. The only interest which the defenders have in maintaining the decree is, to uphold the real right by adjudication to the lands which they have so long possessed on their completed title. A renunciation of the succession by the heir when called in the action of constitution does not prevent the creditor from attaching the real estate. It has the effect only of altering the mode of procedure. The decree cognitionis causa tantum, which would have followed on the renunciation, would have enabled the creditor to have adjudged the real estate of the father, if any; although the grandfather's heritable property, whose heir the pursuer was as much as she was her father's heir, might not have been adjudgable so long as the pursuer remained unentered. But, in any view, I am clearly of opinion that, supposing it were judicially made (which it has not yet been), renunciation in the circumstances is inadmissible, and not supported by authority or precedent.
The defender has been allowed to put upon record an objection to the right and title of the pursuer to insist in these proceedings for reduction of his completed feudal title in the lands. The plea to that effect, had it been stated at the outset of the litigation, might, I think, have been sustained, and this would have prevented much of the expensive procedure which has followed. Even at this late stage of the process, the Court cannot reject the plea, however unnecessary for the success of the defender upon the pleadings as they stand. For the objection to the effect of voiding the feudal title is good, and can be met only by serving heir to the grandfather; and this again would subject the pursuer to the passive title of the Act 1695, the possession of the intermediate heir for three years being proved. The result is, that the pursuer has neither title nor right to obtain the decree of reduction concluded for in the summons.
The other Judges concurred.
Solicitors: Agents for Pursuer— Hill, Reid, & Drummond, W.S.
Agent for Defenders— James S. Tytler, W.S.