Scottish Court of Session Decisions

This case, which depended on similar considerations to those occurring in Duke of Hamilton v. Guild, supra, was heard and decided along with it.

The late Admiral Sir James Hope, G.C.B., was proprietor of the lands and estate of Carriden and others, in the county of Linlithgow, which were held by him in feu of the Duke of Hamilton as superior. He was infeft and entered in the said lands conform to precept of clare constat in his favour from the superior, and instrument of sasine thereon dated and recorded in 1829.

By antenuptial contract of marriage, dated 3d December 1877, Sir James Hope conveyed the lands of Carriden to himself and Lady Hope, and the longest liver of them in conjunct fee and liferent for her liferent use allenarly, and to the child or children of the marriage in fee, and provided Lady Hope during the subsistence of the marriage with a free annuity of —200 in name of pin money, and for her further security bound himself to infeft her during the subsistence of the marriage in a free annuity of £200 upliftable furth of said lands. This contract was recorded in the Register of Sasines on 11th February 1878. The warrant of registration was a warrant to register on behalf of Admiral Sir James Hope and his wife Lady Hope, “for their respective rights of fee and liferent within mentioned, for preservation as well as for publication, in the register of the county of Linlithgow.”

There were no children of the marriage. Sir James died on 9th June 1881, leaving a trust—disposition and settlement executed in exercise of a reserved power contained in his marriage—contract, by which he conveyed the lands of Carriden and others to certain trustees. Miss Helen Hope, his sister, the pursuer of this action, was his heir-at-law. She obtained herself duly served and infeft heir in special to him in the whole lands and estate of Carriden, conform to extract decree of special service by the Sheriff of Chancery in her favour dated 2d and recorded in Chancery 3rd November, and with warrant of registration thereon on her behalf recorded in the Division of the General Register of Sasines applicable to the County of Linlithgow 14th December 1881.

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This was an action of declarator at the instance of Miss Hope against the Duke of Hamilton, concluding that she should be found to be duly entered with the Duke of Hamilton as superior in the lands of Carriden and others so far as they were held of him, and that the defender was bound to accept the sum of ten pounds and ten—pence (which sum included one year's feu-duty (£5, 0s. 5d.) for the year ending at Martinmas 1882) as in full of the casualty or relief-duty payable to him in respect of the pursuer's entry to the lands. The pursuer thus claimed to be entitled to have her entry recognised by the superior on payment of relief.

The defender claimed a full year's rent (being £1300) in name of composition, the composition on entry being untaxed. He averred that the trustees under the settlement of Sir James had conveyed the lands to the pursuer, and called upon her to produce the trust—disposition and settlement which he alleged to be her title.

The pursuer pleaded—The pursuer being served heir-at-law to her deceased brother in the said lands and others, and being duly entered with the defender by her infeftment condescended on, she is entitled to have her entry recognised by the defender on payment of relief-duty.

The defender pleaded—The pursuer having acquired right to the said lands, not as heir, but by singular title from the trustees of the late Sir James Hope, is liable in composition to the superior.

The Lord Ordinary found and declared conform to the conclusions of the libel.

“ Opinion.—The pursuer in this case seeks to have it found and declared that she is duly entered with the defender as superior in the lands and estate of Carriden and others described in the summons. There is no question, as I understand, as to the amount payable by the pursuer for entry if she is entitled to enter as heir; but the defender maintains that she is truly a singular successor, and must pay composition as for an entry in that character. The defence is maintained on two grounds.

I. It is said that the pursuer is not the heir of the investiture, and that the service by which she claims to have made up a title is inept, and carries no right to the estate. It is not disputed that she is the heir — at —law of the late Sir James Hope, who was infeft and duly entered in the lands under a precept of clare constat granted by the defender's predecessor in the superiority in 1829. But it appears that by antenuptial contract of marriage Sir James Hope conveyed the lands and estate of Carriden to himself and Lady Hope, and the longest liver of them, in conjunct fee and liferent, for her liferent use allenarly, and to the child or children of the marriage in fee. No children were born of the marriage, but the contract was recorded in the Register of Sasines, being registered on behalf of the spouses. And the defender maintains that this registration, which is equivalent to an infeftment, operated under the Act of 1874 a change in the investiture, so that the pursuer, as heir of the investiture recognised by the precept of dare constat in 1829, is no longer in a position to enter. The argument is in my opinion untenable. The registration appears to me to have had no other effect in law except that of infefting Lady Hope in a bare liferent, as Sir James was already infeft in the fee, and the effect of a conveyance by a proprietor infeft in the terms quoted is too well settled to be the subject of argument. It left the fee in Sir James precisely as it was before, and gave a bare liferent to Lady Hope, and a right of succession to the children of the marriage. It is suggested that by the operation of the Act of 1874 the spouses have been entered in room of Sir James in the same manner as if their infeftment upon the conveyance in the marriage-contract had been confirmed by charter. But Lady Hope could not be entered in this way, because she is a mere liferenter. If Sir James could be held to have been entered of new it would not aid the defender's case, because the only effect of the alteration would be to take the fee to himself and the heirs of his marriage instead of to himself and his heirs—general; and it has never been held that where an investiture is altered in the lifetime of the vassal, and the fee taken to him and the heirs of his body, or the heirs of a particular marriage, or any other limited class of heirs, the superior could claim anything but relief upon an entry.

Another view was maintained, which is equally without foundation. It is said that the feudal fee is now in Lady Hope, because there was a conveyance to her in liferent for her life-rent use allenarly and the children of the marriage in fee. That is said to create a fiduciary fee in her, which has been feudalised by registration in the Register of Sasines. But Lady Hope's infeftment is merely as liferentrix; and she could not have been infeft in any other character. There is no room for the supposition of a fiduciary fee for the children, because, as already observed, the destination imports a continuance of the fee in Sir James; and if there had been a child of the marriage he would have taken up the estate on Sir James; death, as heir of provision to him, and neither as disponee nor as heir of Lady Hope.

I can see no reason to doubt therefore that Sir James Hope was the vassal last infeft, and that the pursuer as heir-at-law has been validly and effectually served heir in special to him in the lands in question.

II. But secondly, it is said that although the pursuer be the heir of the investiture, the superior is entitled to a composition, since she holds by singular title from Sir James' trustees, for it is said that Sir James left a trust-disposition by which he conveyed the lands to trustees, who have conveyed them to the pursuer.

Assuming this to be so, it appears to me that these are conveyances with which the superior has no concern. The superior can have no interest in personal rights that are granted by his vassals. So long as they remain personal they do not affect him; and the notion that the heir of the last entered vassal who is in a position to complete a title as heir is bound to pay composition on entry because he has also a personal right under a mortis causa conveyance is entirely without foundation. But then it was suggested that under these deeds the pursuer may not be the true owner of the estate, but merely a trustee for others who have the true beneficial interest; that she is thus put forward by Sir James' trustees for the mere purpose of protecting them from the superior's claim for composition; and this is a device for delaying or defeating the superior's just claims which is no longer available

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since the Act of 1874. I am of opinion that this argument also is unsound. It has been decided by a series of cases that a disponee infeft can no longer put forward the disponer's heir-at-law to protect him from composition, but the ground of judgment in all these cases was that the heir could not be put forward, because there was no longer any estate to which he could enter. The ancestor's disponee being already entered by force of the statute, there was no longer, as under the former law, a mid-superiority which might be taken up by the heir. But in the present case the fee is vacant by Sir James Hope's death, and his heir-at-law has a right to be entered, not to a barren mid-superiority but to the dominium utile, unless anyone comes forward and establishes a better right, to the exclusion of the heir. It may be that Sir James's trustees might have a preferable title if they thought fit to maintain it But that is a matter with which the superior has no concern. He cannot compel his vassal's disponees to take up the right given them by his disposition if they prefer to abandon it to the heir; and if they think fit to lie by and allow the heir-at-law to take up the fee, it is jus tertii to the superior to inquire into their reason for doing so. There can be no question that under the old law the pursuer could have compelled the superior to give her entry by precept upon a retoured service. The statute enables her to enter herself without the superior's intervention, and it does not appear to me to contain any provision upon which he can found as either excluding her right to serve or as preventing her from completing a title by recording the service.”

The defender reclaimed. Argued for him—In a question with the superior the pursuer must be viewed as a singular successor, and as such liable in a composition. The question depended upon the construction of sec. 4, sub-sec. 4, of Conveyancing Act 1874 (37 and 38 Vict. c. 94). The previous cases under this section, when a similar question arose, were — Ferrier's Trs. v. Bayley, May 26, 1877, 4 R. 738; Rossmore's Trs v. Brownlie, November 23, 1877, 5 R. 201; Sivright v. Straiton Estate Co., June 12, 1878, 5 R. 922; Rankin v. Lamont, February 28, 1879, 6 R. 739, aff. 7 R. (H.L.) 10. In these cases there had been a base infeft—ment which by the operation of the Act became public In the present case by the infeft—ment on the marriage-contract the investiture was altered and strangers could be brought in; therefore the superior was entitled to a composition. The words “whom failing” were of considerable importance in this destination, which was to the children of the marriage, and not to the heirs of the marriage. See Wilson v. Glen, 3 Ross' Leading Cases, Land Rights, 716; Houlditch v. Spalding, June 9, 1847, 9 D. 1204; also Falconer v. Wright, January 22, 1824, 2 S. 633. This was just a tailzied infeftment. The Act had given a right of action and a right to a casualty, which by the old law might have been evaded.—Ross' Leading Cases, Land Rights, ii. 316; Bell's Conveyancing, ii. 812; Titles to Lands Consolidation (Scotland) Act 1868, sec. 25. The statute had operated a change; the “successor” was the person who had the real interest in the lands, and that “successor” might be a trustee, or, as in this case, one who really took his right from a trustee.

Argued for respondent—The casualty payable in this case was relief. All that the superior had to do with here was the marriage-contract, which was feudalised, it was jus tertii that a personal right might exist under the settlement of Sir James. Sir James Hope was full fiar under the then standing investiture; this consisted of the precept of clare constat in favour of himself, and he took as heir of the last vassal. The marriage-contract was registered, and the result of this infeftment by the Act was as if the superior had granted a writ of confirmation in favoreM. Infeftment on such a destination did not in a question with the superior operate any new investiture — M'Kenzie, 1777, M. 15,053; Marquis of Hastings v. Oswald, 1859, 21 D. 871. It was impossible, ab ante, to say whether composition was due or not — Stirling v. Ewart, February 14, 1842, 4 D. 684; Wilson v. Reid, December 4, 1857, 6 S. 198; Monteith v. Inglis, February 6, 1869, 7 Macph. 523. No feudally operative infeftment had passed except that of Lady Hope for her liferent, and no new fee was created as far as Sir James was concerned. The rights of children in such a case as this would have been a protected succession.

In the course of the discussion the defender was allowed to add this plea—“The effect of the registration of the contract of marriage being by the Act of 1874 to enter Sir James Hope, as if a charter of confirmation had been granted of the disposition contained in the said marriage-contract and infeftment thereon, and the disposition so confirmed containing a destination introducing strangers to the investiture, the casualty due upon entry given in respect of said registration, being the first entry enfranchising the new investiture, is that of composition.”

At advising—