Scottish Court of Session Decisions

Lord President—There are two questions raised for your Lordships' consideration here, viz.—(1) As to the competency of this petition; (2) whether on the merits the prayer of the petition should be granted? On the question of competency I think there is no room for doubt. The petitions which by the Act 20 and 21 Viet. cap. 56, sec. 4, are appropriated to the Junior Lord Ordinary, do among others, without doubt, include petitions for the appointment of judicial factors. Whether this petition answers to that description or not I do not intend to say a word. It is enough to observe that from the petitions appropriated by that Act to the Junior Lord Ordinary are excepted those which are “incident to actions or causes actually depending at the time of presenting the same.” That this petition is included under the exceptions under the statute I cannot doubt, and therefore the petition I hold is competent. The action of reduction has been “called, ” and is now “actually depending” in the sense of the statute.

The circumstances of the case are peculiar, but yet they exactly resemble a previous case decided in this Division of the Court—the case of Pringie Elliot, May 27, 1843, 5 D. 1075. There Mr Pringie was heir of entail in possession of two entailed estates, and uniformly acted as such, when on his deathbed he made a general and special trust-disposition and settlement which had for its direct end the breaking of the deed of entail. Upon this trust-deed infeftment was taken on the day of the testator's funeral.

In the present case the testator left a letter of instructions to the trustees enjoining them to take infeftment before his funeral. He died on 23d July, and the trustees, in fulfilment of his orders, took infeftment, and had the conveyance recorded upon the 26th July, being before the funeral. Now, I need hardly say that the heiress of entail could not anticipate this action, especially as she seems to have had no knowledge of the existence of the conveyance, and she now presents this petition on the ground that possession obtained in this way by the trustees can go for nothing, and that the estate passes by force of the destination in the entail to the petitioner unless a flaw be found to justify the trust-disposition. The petitioner therefore claims that he has a right to have the estate put under judicial care until she has had an opportunity of setting aside the new disposition.

It appears to me that these circumstances correspond exactly to the case of Pringie Elliot. Mr Elliot and his advisers were not perhaps as ingenious as Mr Speirs and his, but they were shrewd enough to see that if they took infeftment as fast as possible it would be a good point in their favour if any question arose, and accordingly they took infeftment on the day of the testator's funeral, or, as it was said, they took infeftment “upon his grave.” In short, in this case, as in Pringie Elliot's case, the alleged possession can go for nothing, and I do not see that anything further is said. The two cases are identical; and what did the Court do in the former? It granted the petition, and the remarks which fell from the Court in that case are very appropriate to the present case. I am for following that precedent, and think we ought to grant the prayer of the petition.

Lords Deas, Mure, and Shand concurred.