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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Maclaine v. Ranken (Campbell's Tutor Ad Litem) [1878] ScotLR 15_703 (12 July 1878)
URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0703.html
Cite as: [1878] SLR 15_703, [1878] ScotLR 15_703
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SCOTTISH_SLR_Court_of_Session
Page: 703↓
Court of Session Inner House First Division.
[
v.
Facts:
In a petition to charge entailed lands with improvement expenditure where the entail is dated subsequently to 1848, the Entail Amendment Act 1875, and specially sec. 7, subsec. 6, and sec. 12, subsec. 6, makes no provision for granting to the petitioner the expenses of his application, and gives no power to make the expenses of the application a charge upon the entailed estate.
Murdoch Gillian Maclaine, heir of entail of the lands of Lochbuy and others in Mull, under a deed of entail dated in 1874, presented a petition to the Junior Lord Ordinary ( Adam) for authority to charge the entailed lands with Montgomery improvement expenditure. The petition, inter alia, prayed for decree for the expenses of the application in these words—“ together with such sum as your Lordships may find to have been the actual or estimated amount of the expenses of this application, and the proceedings therein, and of obtaining the loan and granting security therefor.”
The Lord Ordinary granted the prayer of the petition, except in so far as related to expenses, and on this point added the following note to his interlocutor of 12th June 1878:—
“ Note.—The Lord Ordinary has refused the petitioner's motion for expenses, because he thinks he has no power under the statutes to grant it. The 6th subsection of the 12th section of the Entail Amendment Act 1875 was founded on in support of the motion, but there is no entailed estate out of which the Lord Ordinary can decern for payment of the expenses. No doubt the expenses might be made a charge on the entailed estate, but that appears to the Lord Ordinary to be a different thing from decerning for payment of them, and to be limited to cases under the 6th subsection of the 7th section of the Act, where power is expressly given to charge such expenses on the estate where the estate is held under an entail dated prior to 1st August 1848, which is not the case here.”
The petitioner reclaimed, and Mr R. B. Ranken, tutor ad litem to Donald Maclaine Campbell, one of the three next heirs entitled to succeed, opposed the reclaiming note on behalf of the pupil.
The petitioners founded on the 6th subsection of the 12th section of the Entail Amendment Act 1875 (38 and 39 Vict. c. 61), and argued that the expenses of the application might justly be made a charge on the estate in the same manner as was provided in the 6th subsection of the 7th section of the same statute. The Court was there empowered to authorise an heir of entail, holding under a deed of entail dated prior to 1st August 1848 to borrow money to defray the cost of improvements on the entailed estate, and subsection
Page: 704↓
6 went on to say “that the Court shall in every case, in fixing the amount to be borrowed, add to it the actual or estimated amount of the cost of the application, and the proceedings therein, and of obtaining the loan and granting security therefor.” Argued for the respondent—It was not in the power of the Court to make the expenses of the application a charge on the estate in the manner prescribed in section 7, as that was limited to cases of entails dated prior to August 1848, and, secondly, the lands being in forma specifica, it was impossible to decern out of the estate. Further, the 12th section, subsec. 6, merely gave power to decern for the expenses of process, which would not include all the expenses allowed for in the 7th section, viz., the expense of raising the loan and granting security therefor.
At advising—
The 7th section, as I have said, applies only to cases of entails prior to August 1848, and there is no corresponding provision applicable to more recent entails; the subsection can only therefore apply in its terms to early entails, of which this is not one. The direct application of the section is accordingly out of the question.
But it is said that there is another section, viz., the 12th, under which the application may be granted. Now, that section does not apply to improvements or to charging the estate with the expense of improvements, but has to do with procedure generally under the statute. It says that the provisions in the subsections “shall have effect with reference to all applications to the Court under this or any other Entail Act; “and then subsection 6 goes on to say—“In every application it shall be competent to decern for payment of expenses of process against any of the parties to the proceedings, or to decern for payment thereof out of the entailed estate concerned, or out of the money consigned under the application.” Now, this is a rule of a very extensive kind, and is intended to meet a variety of cases where authority is given to apply to the Court. The petitioner argues that under it that may be done in recent entails which section 7 specially authorises to be done in older entails. Now, I think that that is a contention to which we cannot listen. It cannot be said that in section 12 the same thing is authorised regarding Montgomery improvements in the case of an entail dated subsequently to 1848 as is authorised by section 7 in the case of an entail dated prior to 1848.
The only thing allowed by this subsection is that the expenses of process may be decerned for. Now, in the first place, the expenses of process do not embrace the most important part of the expenses, namely the raising of the loan, &c., and on the other hand it is not possible to give decree in the terms of the section. We cannot decern “out of the entailed estate;” it is not possible to do so, for that means out of the fee of the entailed estate, not out of the rents, for as the petitioner himself is in possession he could have no possible interest in getting such a decree against himself, and to decern for expenses out of the lands while they exist in forma specifica is a thing we have no power to do. It seems to me to be a casus improvisus under the estate. I think that the Lord Ordinary is right in the conclusion at which he has arrived.
The Court adhered.
Counsel for Petitioner (Reclaimer)— Murray. Agents— Tods, Murray, & Jamieson, W.S.
Counsel for Respondent— Maconochie. Agents— T. & R. B. Ranken, W.S.