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SCOTTISH_HoL_JURY_COURT

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(1712) Robertson 37

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 12.

John Hamilton, of Pumpherston, Esq. Appellant

v.

Katherine Lady Cardross, Respondent

8th April 1712.

Subject_Minor. —

Fountainhall, 20 Feb. 1708. 2 January 1711.

Forbes, 20 Feb. 1708.

A tack sustained, which, in the recital, bore to be granted by a Minor with consent of his Curators, but was signed by the landlord only.

Subject_Homologation. —

In a reduction of a Tack on the ground of nullity, it being found that the receipt of the rent by the Grantor's heir for more than 30 years, imported no homologation, the Judgment is reversed.

In 1671, Sir William Stewart, of Kirkhill, the respondent's brother, let to Alexander Hamilton the appellant's father, then his factor or baillie, the lands of Strathbrock for the term of three 19 years, at the rent of about 50 l. annually. The tack in the recital bore to be granted by the said Sir William, with the consent of his curators, but it was subscribed only by himself.

Sir William died some time after the date of this tack, but the precise date of his death does not appear. The respondent, his sister, succeeded to his estates; and the appellant's father and the appellant himself possessed their farm in virtue of the said tack, without challenge for more than 30 years; and part of the rents had been paid, (as stated by the appellant) to Sir William before his death, and the remainder regularly to, or for the use of the respondent.

In 1706 the respondent commenced an action before the Court of Session against the appellant, to remove him from the possession of the said lands, on the ground, that his tack was void being granted by Sir William Stewart when a minor, without

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consent of his curators. And to prove the minority the respondent produced a certificate of his baptism, and several deeds executed by him, both before and after the date of the said tack, with consent of his curators, to one of which, the appellant's father was a subscribing witness; and the founded upon the tack itself, which bore consent of curators, though none were subscribing ^(a).

The appellant made defences to this action, and the Court on the 20th of February 1708, “sustained the nullity against the said tack, the same not being signed by the minor's curators.”

The appellant having stated objections to the proof of minority, and of Sir William's being under curatory, and pleaded homologation, the Court on the 15th of July 1708, “found that the discharges for the rent did not import any homologation, acknowledgment or confirmation of the tack for the time that was to run thereof.” And on the 16th of July 1708, decerned against the defender in the removing.”

Entered, 11 February 1711–12.

The appeal was brought from “an interlocutor or decree of the Lords of Council and Session, made on behalf of Katherine Lady Cardross, the 20th of February 1708, and of an interlocutor pronounced the 15th of July 1708, and of one other interlocutor pronounced the 16th of July 1708, whereby the appellant was decreed, to quit his possession of the lands therein mentioned.”

Heads of the Appellant's Argument.

There was no direct or legal proof of Sir William Stewart's minority, which ought certainly to have been clearly proved; the certificate of his baptism could be no proof, as leaving the time of birth uncertain. Nor could deeds executed by him, with consent of his curators, be in law a sufficient proof, that he had such curators so as any deed done without their consent should be void. For there are two kinds of curators: the first are such as are legally chosen and authorized by a judge upon the minor's special choice; these curators having accepted, any deed done by the minor without their consent is void. But there are a second kind of curators, otherwise called procurators, who without any legal choice, but the consent of the minor, act as curators; but their acting does neither validate, nor does the want of their consent invalidate any deed done by the minor. It is, therefore, to be presumed, that the curators who appear to have consented to any of Sir William's deeds were of this last sort, unless it had been proved that they were otherwise legally authorized, which the

_________________ Footnote _________________

(a) The papers and vouchers produced by the respondent are stated by Forbes to have been—Certificate of Sir William's baptism in 1652; a suspension and summons in 1666, an act and commission in 1669; a summons in 1670, a charge in 1671, and a summons in 1672, all at the instance of Sir William Stewart and his curators; with a tack and factory in 1667, subscribed by him and them, to which two deeds the appellant's father was a subscribing witness, and a registered factory in 1672 executed by the same parties. She produced also a certificate under the hand of the Commissary clerk of Edinburgh, that Sir William's act of curatory stands in the minute book 8th May 1667, and a receipt for the act of curatory itself in 1671.

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respondent ought to have proved, feeing actori incumbit probatio. Nor is the appellant's father's being a witness to the deeds in 1667 executed by Sir William and his curators any proof of the minority; for Sir William might then indeed have been a minor, and of lawful age in 1671; a witness to any deed is not obliged to know what is contained in it.—And though the tack to the appellant's father bears to be with consent of curators, and none of them sign, yet that might either proceed from this; that at the time the tack was drawn Sir William was not of age, but might be so before it was executed; or that the tenant finding they were only procurators thought their consent of no force;—and though he lived, as is agreed on all hands some time after he came of age, yet he never called this tack in question, but received the reserved rent thereof during his life ^(a). The tenant then, needed not the consent of the curators to attain possession, because he had been many years possessed of the lands let; nor to validate the deed, for the first payment to the landlord did bar all exception of nullity and behoved to confirm the tack. And in the present case every thing ought to be presumed favourably for the rusticity of the tenant.

In a reduction of this kind lesson must be proved; but though the minority had been clearly proved, yet the tack being granted at as high, if not a higher rent than before, the landlord suffered no loss by it. These lands would not answer at the appellant's father's entry, but he having ameliorated their condition at considerable expence, they came at last to be productive; but the tenant would still be a considerable loser should he at present be deprived of his tack.

Cod. L. 5. Tit. 74.

As Sir William Stewart never called the tack in question during his life, so the respondent his heir who succeeded to her brother in 1674, though she knew of the tack, yet acquiesced in it till 1706, when the present action was commenced, having all the while received the reserved rents yearly and granted acquittances for the same. The appellant produced to the Court a general discharge from the late Lord Cardross, the respondent's husband deceased, dated the 26th of December 1674, for the year 1673, and all preceding, which included the rent for the first year of the tack; and this discharge mentions that an account had been made, and presumes that the vouchers for the preceding years were given up to the respondent, or to her husband. The silence, therefore, of the respondent during so long a period is an undoubted confirmation of the tack, whereof she is presumed to have known the terms and condition: and the civil law in nullities of the same kind, did not only construe such silence to be a confirmation so as to supply any defect; but Justinian by an edict, expressly declares “that if in five years no question be moved by the grantor, nor his heir, that silence shall be held as a confirmation. Cod. L. 5. Tit. 74. And the learned Perez observes, that according to the general custom, such question must not only be

_________________ Footnote _________________

(a) These does not appear to have been any direct proof of this averment.

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moved in five years, but finally decided in ten; whereas this lease has flood unquestioned for 37 years.

Heads of the Respondent's Argument.

By the law and uncontroverted usage of Scotland, all deeds done and executed by minors before their full age of 21, without the advice and consent of their curators, are ipso jure null and void. And in every act and deed that is to be obligatory upon a minor, the consent of such curators must be testified by their subscribing the deed along with the minor in presence of famous witnesses.

By the law of Scotland a person's right of quarrelling an insufficient and illegal deed is nowise cut off or weakened by delaying it, unless they let it run up to 40 years complete, which is not pretended in this case.

The respondent sufficiently proved, by the deeds and other documents produced by her, that Sir William Stewart was a minor having curators, at the date of the tack in question; and the appellant's father, then his factor, did most unwarrantably prevail upon him, without the knowledge or consent of his curators, to grant this tack for three 19 years, at a rent more than one third under the true value. This fact is evident because the appellant, having, in consequence of the decree of the Court below, been removed from the possession of the farm, the respondent granted a new tack to another tenant for a term of 11 years, at above 30 l. per annum more rent.

Sir William never received any rent after he attained his full age of 21 years, and he died within four months after that period; and if the appellant has any discharges from the respondent for his rent, they do not mention the tack. But if they did, they cannot validate the same, being absolutely null and void.

Judgment, 8 April 1712.

After hearing counsel, It is ordered and adjudged, that the said interlocutors, decree, and orders complained of in the appeal, be reversed and that the Lords of Session do order the appellant to be forthwith restored to the possession of the said lands, and to have satisfaction for what he has lost in respect of the profits of the said lands, by reason of the decree orders and interlocutors hereby reversed.

Counsel: For Appellant, Samuel Dodd.
For Respondent, Pat. Turnbull, Paul Jodrell, jun.

In the printed appeal cases in this question, another point is stated, which it was deemed unnecessary to, detail. After the date, of pronouncing the last interlocutor here appealed from, the appellant applied to the Court to be indemnified for certain improvements made by him and his father, and the Court found that the expences of amelioration were, mala fide, laid out and sufficiently compensated by a 30 years possession. But it does not appear from the judgment in this appeal, that this last mentioned part of the judgment of the Court of Session was appealed from: and the reversal upon a preliminary point renders the judgment of the Court of Session thereon of no effect. It is however stated as a precedent in the Dictionary, vol. I. voc. Bona fide consumption, p. 108.

1712