Scottish Court of Session Decisions

So standing the case, the Lord Ordinary thinks that the only point which he can decide is the pursuer's title to sue. Prescription, relevancy, and even title to exclude, cannot be adjudicated on, the first two being on the merits, and the title to exclude not being supported by production of writs.

The Lord Ordinary thinks, however, that the pursuer, as the case stands, has not instructed a sufficient title to sue, and on this ground only he has dismissed the action.

The only title to sue which the pursuer has produced is a general service to the late Thomas Ogilvy of Baldovie, M.D., who died, unmarried, 10th March 1767. The service bears that the pursuer is great-grandson of the deceased James Ogilvy, who was cousin of the said deceased Dr Ogilvy.

The defender has produced Dr Ogilvy's deed of settlement (1762), alteration thereon (1766), and instrument of sasine following on these deeds in favour of Elizabeth Ramsay (1783). The Lord Ordinary thinks that these deeds completely divested Dr Ogilvy of the whole lands, without any right of reversion or return to him, and that no general service to Dr Ogilvy can give the pursuer right to reduce Elizabeth Ramsay's conveyances, or what followed thereon.

Dr Ogilvy was in 1762 unlimited fiar of the lands. In that year, by mortis causa deed, he conveyed them to ‘Elizabeth Ramsay, my niece, and to the heirs lawfully procreate of her body; whom failing to the said Margaret Ramsay, my niece, and to the heirs lawfully procreate of her body, heritably and irredeemably, without any manner of reversion, redemption, or regress.’ By other clauses in the deed he gave power to his nieces to dispose of the lands, and by his deed of alteration of 1766 he empowered his niece, Elizabeth Ramsay, ‘In case she shall have no children of her own body,’ to sell and dispone the lands without the consent of her sister Margaret. On these deeds Elizabeth Ramsay was infeft after Dr Ogilvy's death, and thus became vested with the fee of the lands, subject to the destination in the deeds.

Elizabeth Ramsay, the fiar, had issue of her body, her eldest son being Thomas Farquharson, who died 21st November 1860. If Elizabeth Ramsay had died without executing any deed, Thomas Farquharson would have taken the subjects as her son and heir of provision. But in 1799 Elizabeth Ramsay or Farquharson disponed the subjects to her son Thomas Farquharson, and in virtue of this disposition and sasine thereon (1799) Thomas Farquharson, as is set forth by the pursuer himself, possessed till his death in 1860, being upwards of sixty years. This disposition in favour of Thomas Farquharson, and sasine thereon, are the first deeds that the pursuer now seeks to reduce.

Now, the Lord Ordinary is of opinion that, supposing these deeds challengeable, and the plea of prescription to be got over, the only person who could challenge them would be the heir of Elizabeth Ramsay—her heir of provision, if there be one, if not, her heir-at-law. But her heirs of provision have all failed. She has now no heirs of her body, and her sister Margaret died without issue, so that, if the lands were still in her hereditas jacens, they would be taken up by her heir-at-law. But the pursuer has produced no service to Elizabeth Ramsay either in special or in general. All he has produced is a general service to Dr Ogilvy. But Dr Ogilvy conveyed the lands and divested himself, ‘without any manner of reversion, redemption, or regress,’ so that it is not to his heirs-at-law, but to his niece's heirs-at-law that the lands will ultimately go by succession. Dr Ogilvy's heir has no title whatever.

The only remaining difficulty is that the pursuer avers that he is heir of Elizabeth Ramsay. He has produced no evidence of this, and a mere assertion is not a title. If he had really meant, however, that he was heir in blood to Elizabeth Ramsay (of course through her father, for she left no descendants), the Lord Ordinary might have been disposed to have sisted process to give the pursuer an opportunity of expeding service. But it is plain this is not what the pursuer means. He did not pretend at the bar to state his relationship to the Ramsays; his contention being that he was only heir to Elizabeth Ramsay of provision, by being heir to Dr Ogilvy, to whom there was an implied clause of return. This the Lord Ordinary thinks is untenable.

The Lord Ordinary might go one step further. He thinks, on the pursuer's own statement, that Elizabeth Ramsay had full power to convey the lands to her son Thomas Farquharson. Even if it had been a strict entail, it was simply propelling the succession to the next heir in the destination. A fortiori, in a simple destination such a deed is valid. Dr Ogilvy's settlement is not a destination with prohibitions, for the prohibition can only be implied from a power given; but even if there had been a prohibition against altering the order of succession, such prohibition would only have been for the benefit of the substitutes, who in this case received the conveyance. It could not be pleaded upon by the pursuer, who is not a substitute favoured by the deed.

On the whole, and although it would have been more satisfactory to have had the whole deeds produced, and to have given judgment on the merits, the Lord Ordinary thinks the defenders are entitled to have the action as it stands dismissed.”

The pursuer reclaimed.