Scottish Court of Session Decisions

This was an action of reduction, improbation, and declarator of non-entry, brought by the Duke of Argyll against the trustees of the late James Dalgleish of Westgrange and Ardnamurchan. The following are the circumstances which gave rise to the action:—By feu-disposition, dated 21st September 1696, Archibald Duke of Argyll conveyed the lands and barony of Ardnamurchan to Alexander Campbell of Lochnell in liferent, and to Duncan Campbell, his eldest son, in fee, for payment of 500 merks yearly of feu-duty, and for certain services of hosting, hunting, and warding. Infeftment was taken by these persons on this deed.

By contract of sub-feu, dated 12th October 1722, the said Duncan Campbell sub-feued the said lands and barony to Alexander Murray for payment of 6000 merks of feu-duty, and also for payment to the Duke of Argyll, the over-superior, of the foresaid sum of 500 merks, and for relief of all services due by him to the Duke as over-superior. Infeftment was taken by Alexander Murray, and the dominium utile of the said lands and barony, after passing through several hands, descended to the now deceased Sir James Milles Riddell as heir of entail, who completed his title thereto by precept of clare constat from General Duncan Campbell as undivested mid-superior, dated 21st January and 14th July 1834, and instrument of sasine thereon, dated 21st July, and recorded 8th September 1834.

By disposition, dated 19th August 1808, General Duncan Campbell sold and disponed to Sir James Milles Riddell the foresaid estate of mid-superiority, to be holden of and under the Duke of Argyll, his heirs and successors, in feufarm, for payment of the foresaid feu-duty of 500 merks, and also of the sum of £27, 18s. Scots money in lieu and place of the foresaid services of hosting, hunting, and warding. Sir James was infeft on this disposition, conform to instrument of sasine dated 5th and 6th June, and recorded 15th July 1811.

Sir James also afterwards obtained a supplementary disposition from General Duncan Campbell of the said estate of mid-superiority, dated 13th February 1834. This deed proceeds upon the narrative of the foresaid sale and disposition of 19th August 1808, and of that disposition containing only an obligation to infeft Sir James by a single manner of holding a se, and upon the further narrative that Sir James had requested that he should giant in Sir James' favour a supplementary disposition of the said lands containing a warrant for infefting him therein, either a se vel de se. On this narrative General Campbell, without prejudice to the said disposition of 1808 formerly granted by him, but in supplement thereof, sold and disponed to Sir James the said estate of midsuperiority. The said disposition contains an obligation to infeft a se vel de se with procuratory of resignation, and precept of sasine. Sir James was infeft upon this deed, conform to instrument of sasine, dated 21st July, and recorded 18th September 1834.

By charter of confirmation, dated 5th July 1849, the pursuer confirmed to and in favour of Sir James Milles Riddell, his heirs and assignees, the said lands and barony, the disposition of the mid-superiority, dated in 1808, and the sasine in 1811 thereon, the supplementary disposition of 1834, and the sasine thereon, which last-mentioned sasine is described in the charter as ‘dated the 21st day of July, and recorded in the General Register of Sasines at Edinburgh the 18th day of December 1834, or of whatever other dates or tenor the said writs may be,’ while the correct date of recording was 18th September 1834. This charter of confirmation bears that the said lands and barony are to be holden by Sir James and his foresaids immediately of and under the pursuer, his heirs and successors, in feu-farm fee and heritage for ever, giving therefor yearly to the pursuer and his foresaids the sum of 500 merks, and also paying to them

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the sum of £27, 18s. Scots money in lieu and place of the services of hosting, hunting, and warding.

The dominium utile of the said lands and barony, which was entailed, was disentailed by Sir James Milles Riddell by instrument of disentail, dated 12th July, and recorded in the Register of Tailzies on 10th September 1851. He thereafter, being thus in right of the property and mid-supe-. riority, conveyed by trust-deed the said lands and barony, both property and superiority, to Mr Barstow, who was infeft as trustee, conform to instrument of sasine recorded on 10th September 1851.

On 8th December 1851 Sir James, as superior of the said lands and barony, and as proprietor of the same, holding of himself, on the narrative of his infeftment in the dominium utile thereof, and upon the further narrative that by the disposition granted by General Campbell in 1834, and his inteftment in 1834 following thereon, the said lands are now held by him of himself, as superior thereof, and that it was proper that his right of property in the lauds should be consolidated with the right of superiority of the same in his person, granted a procuratory of resignation ad remanentiam for consolidating the same, together with all right, title, and interest which he had or could pretend to the same. An instrument of resignation ad remanentiam was expede thereon on 12th December, which was recorded on 22d December 1851. The defender objected to this instrument, that the person who acted as procurator was, although named, not designed.

On 16th and 19th December 1851, Sir James, with consent of Mr Barstow as trustee, executed a deed of entail by which, on the narrative that when he succeeded to the estate previously entailed the same was burdened with a feu-duty of £300 sterling or thereabouts, and that he purchased the superiority, which thus became vested in him in fee-simple, whereby the estate was relieved of the said feu-duty, he conveyed to himself and the heirs of tailzie therein mentioned the said lands and barony, ‘both property and mid-superiority thereof, now consolidated in the person of me, the said Sir James Milles Riddell.’ Infeftment in favour of Sir James followed upon this deed.

Thereafter a portion of the said estate was sold for payment of debts, under the authority of the Court, and was purchased by the late Mr James Dalgleish, whose trustees are the defenders in the present action. The disposition in favour of Mr Dalgleish contains obligation to infeft, to be holden a me vel de me clause of resignation and precept of sasine, and binds Mr Dalgleish to free and relieve Sir James Milles Riddell of all cess, feu, blench, and teind duties, minister's stipend, and other burdens payable after Whitsunday 1856, the term of his entry, it being thereby ‘declared that of the feu and other duties payable to the Duke of Argyll’ for the said whole lands and barony, there shall be payable by Mr Dalgleish, for the lands disponed to him, ‘the sum of £16, 14s. sterling, or as many merks Scots money as shall correspond to that sum of feu-duty, to the Duke of Argyll,’ Sir James being bound to free and relieve Mr Dalgleish of the remainder of the said feu-duty, ‘payable for, and out of, the said whole lands and barony of Ardnamurchan.’ On this disposition Mr Dalgleish was infeft, conform to instrument of sasine recorded 12th June 1856.

After the death of Mr Dalgleish, his trustees neglected to enter themselves vassals with the Duke of Argyll, who accordingly raised this action against them. The trustees defended the action on the ground that the pursuer was not their immediate lawful superior, but that the mid-superior under whom they held was Sir Thomas Milles Riddell, son of Sir James Milles Riddell, the lastentered vassal. The following was their contention in support of this position:—In the first place, they maintained that the charter of confirmation of 1849 did not confirm the instrument of sasine which was taken on the supplementary disposition of 1834 in favour of Sir James Milles Riddell, because the instrument of sasine was therein described as recorded on 18th December, whereas the correct date of recording was 18th September. In the second place, they argued that the charter of confirmation of 1849 had the effect of confirming and rendering public Sir James Milles Riddell's hitherto unconfirmed a me infeftment of 1811, of completely investing him with the mid-superiority as it stood in the person of the General at the date of the confirmation, and of completely divesting the General thereof. But in consequence of the base infeftment in favour of Sir James proceeding on the General's supplementary disposition of 1834, the only estate remaining in the General at the date of the confirmation, and which admitted of being vested in Sir James by the confirmation of his infeftment of 1811, was the barren estate of mid-superiority held immediately of the Duke of Argyll for payment of the original feu-duty of 500 merks and other prestations. The attempted confirmation of the disposition and infeftment of 1834 had not the effect of making that infeftment of Sir James Milles Riddell a public infeftment holden directly of the Duke. It operated simply as a confirmation by the Duke of the sub-feu created by said disposition and infeftment, and held immediately of Sir James as mid-superior of the barren estate of superiority above mentioned, in virtue of the confirmation of his prior infeftment of 1811, which operated as a mid-impediment to the public confirmation by the Duke of the said disposition and infeftment of 1834. In the third place, they contended that the instrument of resignation ad remanentiam executed by Sir James Milles Riddell for the purpose of consolidating the estates of mid-superiority and property in his person, was ineffectual for that purpose, as the person who acted as procurator, viz., “Hypolite William Cornillon,” was named but not designated.

The first two pleas in law for the defenders were—“(1) The pursuer not being the immediate lawful superior of the defenders, he has no title to sue the present action, and the defenders should therefore be assoilzied from the whole conclusions thereof, with expenses. (2) The action cannot proceed, and ought to be dismissed, with expenses, in respect that the true vassal of the superior is Sir Thomas Milles Riddell, the heir of the last vassal entered, and that he has not been called as a party to the action.”

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh 11 th January 1873.—The Lord Ordinary having heard the counsel for the parties, and considered the closed record, process and productions, repels the first and second pleas in law for the defenders; Finds that the lands and subjects specified and described in the conclusions of the summons are in non-entry as libelled; and appoints

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the cause to be put to the roll in order to the application of this finding.”

In a note subjoined to this interlocutor the Lord Ordinary, after narrating the state of the title, remarks:—“Such being the state of the title, the defenders, Mr Dalgleish's trustees, maintain that the charter of confirmation of 1849 did not confirm the instrument of sasine which was taken on the supplementary disposition of 1834 in favour of Sir James Milles Riddell, because that instrument of sasine is therein described as recorded on 18th December, whereas the correct date of recording is 18th September 1834. The Lord Ordinary is of opinion that this objection is not well-founded, because the date of the sasine as following on that disposition is correctly given, which is sufficient for its identification. The charter also, after giving the erroneous date of recording, contains the words, ‘or of whatever other dates or tenor’ the same may be ( Adam v. Drummond, June 12, 1810, F.C.)

The defenders maintained that as the charter of confirmation is in the form set forth in schedule D annexed to the Transference of Lands Acts 1847 (10 and 11 Vict. c. 48), and as that schedule only specifies the instrument of sasine as recorded, it is essential that the date of recording should be correctly set forth in the charter. The Lord Ordinary considers this objection untenable. The reason why the date of recording only is mentioned in schedule D is, that in the form of an instrument of sasine, given in the Infeftment Acts of 1845 (8 and 9 Vict. c. 35), there is no date, and that by the said statute it is provided, sec. 3, that after 1st October 1845 the instrument may be recorded at any time during the life of the party in whose favour it has been expede, and that the date thereof shall be taken to be the date of presentment and entry marked thereon by the keeper of the record. The adoption of the form given in the Transference of Lands Acts of 1847 does not prevent the identification in such a charter of an instrument of sasine expede prior to 1st October 1845, by the date thereof. Schedule D. annexed to the Act of 1847 provides for this by containing the directory words in italics, ‘or of whatever other date or tenor the said instrument of sasine may be.’

It was also argued by the defenders that the charter of confirmation did not make the infeftment of 1834 on the supplementary disposition of that year a public infeftment holding directly of the Duke of Argyll, because Sir James' infeftment of 1811, which was confirmed at the same time by the charter of confirmation, operated as a midimpediment to the public confirmation by the Duke of that disposition and sasine of 1834, so that Sir James held base of himself as mid-superior, in virtue of his confirmed infeftment of 1811, a substantial estate of mid-superiority under the supplementary disposition and infeftment of 1834. The Lord Ordinary is of opinion that this was not the effect of the charter of confirmation of 1849. The disposition of 1834 is in all respects supplementary to that of 1808, and is another disposition of the same subjects and interest, granted, as it expressly bears, in supplement thereof, with an iternative manner of holding. The charter of 1849 confirmed both rights at the same time, and made, the Lord Ordinary thinks, both public, and it expressly bears that the lands and barony are to be held by Sir James of the Duke of Argyll in feu, for payment of 500 merks of feu-duty, and of £27. 18s. in lieu of the services of hosting, hunting, and warding. Sir James thus, according to the view which the Lord Ordinary takes, held by virtue of confirmation of the disposition of 1808 the supplementary disposition of 1834, and the sasines following thereon, the mid-superiority of the Duke in feu, and by the resignation ad remanentiam of 1851 (which Sir James expede for the express purpose of consolidating the dominium utile of the lands and barony with the said mid-superiority) he consolidated the same. He thereafter divested himself of the portion thereof sold to Mr Dalgleish by disposition, containing procuratory and precept. He had no intention of keeping up any midsuperiority, and he accordingly granted to Mr Dalgleish a disposition of the lands with his whole right and interest therein, by virtue of which Mr Dalgleish could at once enter with the Duke of Argyll as superior, and by which Mr Dalgleish is, as vassal, taken bound to pay to the Duke as his immediate superior in the subjects bought by him a certain proportion of the original feu-duty. No mention is made in that disposition of the sub-feu-duty of 6000 merks, which was considered by all concerned as extinguished by the purchase of the mid-superiority by Sir James and by the consolidation above mentioned.

It is unnecessary, therefore, the Lord Ordinary thinks, to call as a party to the action the heir of Sir James Milles Riddell, the last-entered vassal (Scott v. Falconer, 18th July 1863, 1 Macph. 1164, and cases there cited).

It is further objected by the defenders that the instrument of resignation ad remanentiam is inept, and that no effectual consolidation of the property and superiority took place, because the person who acted as procurator ‘Hypolite William Cornillon,’ though named, is not designed. The Lord Ordinary considers this objection to be too critical. Any person can act as procurator, and it is, he conceives, sufficient if it is clearly shown on the face of the instrument that there appeared before the notary a procurator to give resignation, different from the superior's commissioner or agent and the witnesses, and so distinctly named as to distinguish him from others ( Morton v. Hunters & Company, 26th November 1830, 4 W. and S., 379). But even if such want of designation were held fatal to the instrument, that would not in the opinion of the Lord Ordinary avail the defenders, because they are in right of a disposition of the lands, both property and superiority, and if there is any defect in the instrument of resignation that cannot affect the right of the pursuer as superior, to call upon them, the trustees of the true proprietor of the subjects to whom the whole right therein has been made over, to enter as his vassals, seeing that the lands are in non-entry.”

The defenders reclaimed.

It was argued for them that the mid-superiority still remained with the heirs of Sir James Milles Riddell, on account (1) of the error as to the date of recording of the instrument of sasine in the charter of confirmation of 1849; (2) of Sir James Riddell's infeftment of 1811 creating a mid-impediment which prevented the charter of confirmation making the infeftment of 1834 on the supplementary disposition of that year a public infeftment; and (3) on account of the attempted consolidation of 1851 being inept, the procurator not being designed.

It was also argued, that, in any view, the state of the title was so doubtful that the heir of the last entered vassal should be called for his interest,

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Magistrates of Hamilton v. Hart's Trs., Feb. 2, 1854, 16 D. 437; Adam v. Drummond, June 12, 1810, F.C.; Campbell, May 12, 1822, 1 S. 394.

The pursuer was only called upon to speak to the point as to the necessity of designing the procurator in the instrument of resignation.

It was argued for him that it was not indispensable that the procurator should be designed, if it was clearly shown that some one appeared for each party.

At advising—