Scottish Court of Session Decisions

This was an action at the instance of George William Hutton Riddell, Esq. of Muselie, against the Right Hon. Lord Polwarth, to have it declared that the defender in October 1874 became purchaser of the lands of Dryburgh for the sum of £21,000, and of the lands of Prieston for the sum of £11,000, in virtue of holograph offers and acceptances therefor, and to enforce implement of the contract of purchase and sale thereby constituted. The said lands formed part of the estate of Muselie, which was entailed by two mortis causa deeds granted by Charles Riddell, Esq. of Muselie, the first being a disposition and deed of taillie, executed on 25th February 1836, and the second a deed of destination and alteration, executed on 1st July 1848. The said Charles Riddell died on 11th December 1849, without leaving heirs of his body, and on 12th April 1852, on the death of his mother, who had under the second deed a liferent of the estate, the pursuer entered into possession of the lands as institute of entail. The pursuer being desirous to acquire the lands in fee-simple, obtained the necessary consents from the three nearest heirs who were for the time entitled to succeed to the estates, and executed an instrument of disentail on 11th April 1873. On 21st April he presented a petition to the Court for warrant to record the said instrument in the Register of Taillies. The petition was reported by Lord Shand to the First Division of the Court, the question having been raised whether, under the third section of the Act 11 and 12 Vict. cap. 36, the date of the deeds should be held to be that which they bore or the date of the death of the granter. The Court decided that the date of the entail must be held to be that which the deed bore, and that being dated prior to 1st August 1848 the petitioner was entitled to disentail.

The report of the petition, which contains a full statement of the case, is referred to (11 Scot. Law Rep. 243).

The defence stated to the present action was that the pursuer could not grant a valid disposition of the subjects, in respect that he held them under deeds of strict entail; that these deeds being mortis causa deeds, constituted a valid entail only when they came into operation by the death of the granter, which occurred subsequent to 1st August 1848, and that therefore the disentail proceedings were invalid; that the proceedings in the petition were entirely ex parte, and not res judicata as against any of the substitute heirs of entail; and that for these reasons the validity of the title offered by the pursuer being open to serious doubt, the defender was not bound to accept it.

The Lord Ordinary issued an interlocutor, dated 1st February 1876, in which he repelled the defences, and decerned against the defender Lord Polwarth in terms of the conclusions of the original action, finding no expenses due to or by either party.

The following note was appended:—The answer to the defence stated in the first three pleas in law for the defender is that the point raised has been decided—Petition, Riddell, 6th February 1874, 1 Rettie 462. That decision is not res judicata in a question with the defender, but it is a direct authority against the contention that the pursuer was not in a position to disentail the estates, and that the estates have i not been validly disentailed. Even if the soundness

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of the decision were in my opinion doubtful, I should give effect to it, although pronounced in a proceeding ex parte. But the case was very carefully considered, and although one of the learned Judges differed, I see no reason to change the view I entertained in the application to disentail the estates, and which was adopted by a majority of the Court.

It was further urged that the validity of the title is at least open to such doubt and risk of future objection that the defender is not bound to accept it, even if the Court should be of opinion that the doubt is not well founded, and reference was made to the case of the Duke of Devonshire v. Fletcher, June 19, 1874, 1 Rettie 1056, and the other cases there mentioned in the opinion of Lord Ardmillan. That case was so special in its circumstances that it would be difficult, I think, to use it as an authority of general application. But however that may be, the present case differs from it and the other authorities referred to, in so far as the question said to raise a doubt in reference to the title has been expressly decided against the defender's view. This is a state of matters entirely different from the case which has hitherto occurred, in which a point of difficulty as to the title which the Court must consider and decide for the first time arises in the very litigation in which the question of the purchaser's liability to complete the contract of sale is raised. It appears to me that it cannot be properly represented that the question of validity of the title is doubtful, where, as here, there is a standing decision in a previous proceeding that the title was good; and on this point it cannot, I think, make any difference that the decision was in accordance with the view of a majority of the Judges only.

“Apart from this ground, which is, I think, sufficient to dispose of the defence, the case of Dunlop v. Crawford, 11 D. 1062, and 12 D. 518, seems to be a precedent directly in the pursuer's favour. In that case the Court gave an opportunity to all the persons called as heirs of entail to appear and oppose the sale of the property, and none of them having appeared, decree was given as concluded for. The pursuer having called all the heirs of entail, and taken decree against them, is in the same position as the pursuer in that case, and is entitled to decree, unless the defender, who has appeared, can succeed in showing that the title is bad.”

The defender reclaimed.

At advising—