Scottish Court of Session Decisions

“ Opinion.—The present case differs from that against Mr Stewart of Strathgarrie in this respect, that the trustees of the last vassal were infeft when the Act of 1874 came into operation. But they had conveyed the lands to the present defender before the superior had made any claim for a casualty; and the action is accordingly directed against the defender as the last vassal's successor in the lands.

For the reasons I have stated in the cases of Stuart v. Hamilton, and Stuart v. Jackson, I think the casualty payable by the defender is relief and not composition.

The lands fell into non-entry by the death of Mr Ronald Menzies in 1870, and for the purpose of the present action they are still to be considered as in that position, notwithstanding the implied entries of Mr Menzies' trustees and of the defender. The summons accordingly sets forth correctly that Mr Ronald Menzies was the vassal last vest and seised in the estate, and it follows that the character of the casualty payable by the defender will depend upon whether he is the heir of that investiture. He has completed his title as a disponee. But the form of his title is immaterial, because it is admitted that he is in fact the heir, and on the authority of Mackintosh v. Mackintosh he is therefore liable for relief-duty only.

It is said that the old investiture was superseded by the implied entry of the trustees. But an implied entry on which no casualty has been paid cannot be deemed to have extinguished the prior investiture, because it cannot be pleaded in answer to the claim for casualties; and the pursuer is therefore perfectly accurate in his averment that Mr Ronald Menzies was the last entered vassal. The trustees' infeftment is no doubt an important step in the title completed by the present defender, and the superior is therefore quite entitled to found upon it, although it cannot be pleaded in this action as the entry of a new vassal for the purpose of determining whether the defender's right is that of a singular successor or of an heir. But if it be looked at for that purpose, it is conclusive of the present question in favour of the defender. If the defender had presented his father's conveyance to his trustees and the trustees' conveyance to himself, and demanded a charter of confirmation under the old law, the superior would have been bound to grant a charter on payment of relief, because the trust is to convey to the truster's eldest son —-that is, to the heir; and it follows that the casualty exigible from the defender is relief-duty only.

The Act of 1887 has no application either to this case or to the case of the Duke of Athole v. Stewart, because both of these actions had been instituted before the Act became law.”

The pursuer reclaimed, and argued—[The argument was taken after that in the preceding case and before it had been decided] — This case was certainly not ruled by that of Stuart v. Jackson. The peculiarities of that case were not here. Again, the trustees here did not hold for the heir alone, but for the general purposes of the trust. Several alternative lines of destination were pointed out to them to be given effect to according to circumstances. Further, the trustees here were infeft at the passing of the 1874 Act, and did not convey to the defender until 1880, and they possessed a power of sale. In both these respects this case differed from the preceding one, and was even more strongly in favour of the reclaimer's claims. It was clearly under the class of cases of which Grindlay v. Hill was the leading example, and was ruled by Stuart v. Hamilton. [For these and other authorities see preceding case of Duke of Athole v. Stewart.]

Argued for respondent—This case was ruled by that of Stuart v. Jackson. In that case also the trustees were infeft in 1874, and there was a power of sale, but here, as there (see Lord President's opinion), the power was not general, but only for the purposes of carrying out the trust. In that respect it differed from the case of Grindlay v. Hill, and also in this respect, that there was no change of investiture. The respondent here was heir-at-law of the last-entered vassal, and as such only liable for relief—duty. [See argument for respondent in preceding case of Duke of Athole v. Stewart.\

At advising—

Lord Lee—I am unable to find any good ground for distinguishing this case from that of Harington Stuart v. Jackson.

The fact that the trustees were infeft at the date of the Act 1874 is not sufficient, in my opinion, to deprive the defender, as heir of his father, of his right to obtain entry upon payment of relief-duty. For the same fact existed in Jackson's case, and the trust here, as there, was a trust for conveyance to the heir. He was not disinherited, nor had the trustees power to pass him over or do anything but convey to him, unless he failed to attain majority. In my view, as explained in the case of Stewart of Strathgarrie, the circumstance that the trust-deed contained a destination is of no more consequence here than it was in the case of the Marquis of Hastings. The principle of the case of Stewart v. Jackson, and of the case of Mackintosh, seems to me to rule the present case.

With regard to Grindlay v. Hill one thing is certain, that if it is irreconcileable with the cases of Edderline's Creditors and other cases following it must be held to have been ill decided. But it appears from the report to have been decided on the principle that the title demanded, viz., a charter of adjudication following upon a decree of adjudication in implement against the heir, would have enabled them to hold the estate, not for the heir, who was an infant without any vested right, but against him and for the Merchant Company of Edinburgh, who were to get the estate unless the heir survived a certain age. In short, it placed the trustees necessarily in the position of singular successors, or trustees for a singular successor, by a title which was adverse to the heir except in a certain event. The case was therefore

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