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SCOTTISH_HoL_JURY_COURT

Page: 167↓

(1715) Robertson 167

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 39.

Robert Middleton, Rector of St. Mary's in Colchester, Appellant

v.

Lieutenant-Colonel John Balfour, Respondent

2d September 1715.

Subject_Heritable and Moveable.—

A father in 1641, upon his eldest son's marriage, settled an estate upon him and the heirs thereof, reserving a power to burden: the son was infeft, and half the marriage portion paid to the father; but the wife dying without issue, within year and day, the father granted a bond to the son to employ same for his benefit, or to restrict his power of burdening pro tanto; the eldest son also dying, the father settled the estate upon the second son who, after the father's death, granted heritable securities with infeftment to creditors thereon in 1666, upon which apprisings were led in 1670. His son having taken up the succession as heir to his uncle, instead of his father (the second son); at the instance of creditors, the contract of marriage and infeftment were reduced by the Court of Session, but with a clause, that the half of the marriage-portion which has been paid should be a real burden upon the estate: this half was afterwards confirmed by the executor and adjudication taken in 1680. In a competition between the person having right to the heritable bonds and infeftments in 1666, with apprisings thereon in 1670, and the person having right to the half of the marriage-portion, the Court having preferred the latter, the judgment is reversed.

By contract of marriage in April 1641, between Sir Robert Arnot, son of Sir James Arnot of Fairnie, and Elizabeth Bruce, daughter to George Bruce of Carnock, Sir James Arnot, in consideration of the said marriage between his son Sir Robert and the said Elizabeth Bruce, and of 16,000 merks to be paid by the said Bruce of Carnock, conveyed all his estate and lands of Fairnie to his son Sir Robert, and the children of the marriage by way of entail, reserving his own life-rent in part thereof, and a power of burdening the said estate with 16,000 l. Scots, and upon this contract an instrument of sasine was taken. Mr. Bruce of Carnock, soon after the marriage, took effect, paid the sum of 8000 merks, half of the said 16,000 merks, to Sir James Arnot, the father: But Elizabeth Bruce died within year and day of her marriage without a living child, and the other half was not paid. Upon an agreement in January 1641–2, relative to this matter, between Sir James Arnot and Mr. Bruce, Sir James granted bond to Mr. Bruce of Carnock, that he would tither employ the said 8000 merks, for his, Sir Robert's benefit, or diminish the power he had of burdening the estate pro tanto.

Sir Robert Arnot died soon after, and his father re-entered to the enjoyment of the estate; and afterwards executed a settlement thereof to himself in life-rent, and after his decease to James Arnot, his eldest son then living in fee.

Sir James Arnot and James his Son having afterwards borrowed from Henry Wemyss, the appellant's grandfather, the sum of 4000 merk, did, by their bond dated 8th February 1650, bind themselves, their heirs, &c. to pay the same with Interest at Candlemas

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1651 to the said Henry Wemyss, and in case of his death, to Isabel Wemyss and Margaret Wemyss, his daughters, equally between them. Sir James Arnot having died before the said debt, or any part thereof, was paid, and the said Henry Wemyss being also dead, James Arnot the son, on the 24th of May 1666, granted two heritable bonds for securing payment thereof, one of them to John Middleton (the appellant's father, who had married one of Henry Wemyss's daughters), and Margaret his wife, and the other to the said Isabel Wemyss. These bonds severally bore, that the parties, at the earnest request of the said James Arnot, were willing to supersede payment of their respective halfs of the said debt and interest, each half then amounting to 2108 merks, and therefore the said James Arnot granted to each of the parties an annual-rent of 130 merks 10 shillings and 8 d. Scots to be issuing and payable out of all his said estate at Lammas and Candlemas by equal portions, with a penalty in case of non-payment. Upon these two bonds the parties were severally infeft. On the 13th of September 1670, Isabel Wemyss assigned to the appellant's father the said heritable bond in her favour: And no part of the said annual-rent being paid, the appellant's father and mother in their own right, and the appellant's father as assignee of the said Isabel Wemyss, on the 25th of April 1671, obtained a decree of apprising against the laid estate for the arrears of both the said annual rents then amounting to 1508 merks.

The said James Arnot died, leaving the estate much incumbered with debts, and was succeeded by his son James. This James, for the purpose of getting the estate free of these debts, served himself heir in special to Sir Robert, his uncle, who had been infeft in the estate in virtue of the marriage-contract. And thereupon the Lord Burleigh, and other creditors of James the son, brought an action before the Court of Session, to have the said settlement of the estate upon Sir Robert by the marriage-contract reduced and voided upon this reason, that the estate being conveyed to Sir Robert by Sir James his father intuit matrimonii, and that marriage being dissolved within year and day without a living child thereof, the right fell, and the estate returned to the grantor. James the grandson opposed this action, and it was contended, that if the estate returned to Sir James the grandfather, it ought to be with the burden of 8000 merks, part of Sir Robert's Lady's marriage portion, and which Sir James had obliged himself to employ for Sir Robert. The Court, in 1678, reduced the marriage-contract and conveyance of the estate to Sir Robert, with the burden of the sum of 8000 merks to be paid to them who Should be found to have the best right thereto; declaring the foresaid sum of 8000 merks to be a real burden affecting the lands, and preferable to any debt or burden posterior to Sir James's bond; and that the representatives of the said Sir Robert Arnot might adjudge the lands, and were preferable to all other creditors of the said Sir James Arnot the father, or James the son posterior to the bond.

George Arnot, third son of the said Sir James, afterwards confirmed himself executor to his eldest brother Sir Robert; and

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in a competition between him and James Arnot the grandson and heir at law, (Sir Robert's nephew), the Court of Session, in 1680, decreed the said sum of 8000 merks to belong to the executor; And on the 11th of January 1683, George Arnot obtained decree of adjudication of the said lands as a security for the said sum of 8000 merks.

This debt of 8000 merks, and securities of the same, were afterwards acquired by the Lord Burleigh (who before had several apprisings and claims upon the estate); and he accordingly entered to the possession of the estate. On the 10th of December 1684, Lord Burleigh conveyed all the apprisings, heritable securities, adjudications and other securities he had upon the estate to the respondent who entered to and possessed the estate by virtue thereof.

The father of the appellant having died, he became entitled to the said two annual rents which had been granted to his father and mother, and to Isabel Wemyss his aunt, which, with the arrears thereof, amounted to a great sum of money: And in 1712, near 35 years since the Lord Burleigh and the respondent had entered to the possession of the said estate, he brought his action against the respondent before the Court of Session, in order to have the possession of the estate granted to him for satisfaction of his said debts, contending that the claims of the respondent were fully satisfied by receipt of the rents. And the respondent brought an action of ranking and sale against the appellant and the other creditors upon the estate, that their respective claims might be examined, the estate brought to a sale, and the price applied towards discharging the prior incumbrances.

These actions came to be heard together, and it came to be a question (which is the subject of the present appeal), whether the said debt of 8000 merks, to which the respondent had acquired right, and which by decree of the Court of Session in 1678 was found to be a real burden upon the said estate, and preferable to all debts contracted by James the son, and for which an adjudication was obtained in 1683; or the debt claimed by the appellant, was preferable upon the estate. The appellant made an objection, that though the respondent contended that this debt of 8000 merks was a real one, yet his only title to it was through an executor. Parties were heard before the Lord Ordinary, and his lordship, on the 5th of February 1714, “Repelled the appellant's objection against the respondent's title to the bond and sum therein; and found that George Arnot was habili modo vested in the right thereof, the said decree of reduction bearing that sum to be only a real burden upon the subject, so that as to the creditor it continued moveable: And found, that notwithstanding the adjudication at George Arnot's instance in 1683 was posterior to the appellant's apprising, yet the same must be drawn back ad suam causam, viz. the bond granted by Sir James Arnot to Bruce of Carnock for the behoof of Sir Robert Arnot, his son-in-law, of the 8000 merks advanced by Carnock to the said Sir James as a part of the portion with his daughter, in the terms of the contract of marriage: Therefore and in

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regard the decreet of reduction of Sir Robert's contract of marriage, and infeftment bears to be with an express burden and condition of paying the sum contained in the said bond, which must be understood cum omni causa, preferred the respondent by virtue of the said adjudication, for the said principal sum of 8000 merks, and interest thereof, since leading of the said adjudication and in time coming upon the lands therein contained, and price thereof in case of a sale, and that prior to the apprising founded on by the appellant.” The appellant gave in a representation, and after answers for the respondent, the Lord Ordinary, on the 19th of February 1714, “adhered to the said former interlocutor.” The appellant afterwards reclaimed, and the respondent having answered the Court on the 11th of June 1714, “adhered to the Lord Ordinary's interlocutors as to the 8000 merks principal money, but remitted to the Lord Ordinary to have parties procurators as to the interest since the decreet of adjudication led for the said sum, and to determine or report as he should fee just.” A Second reclaiming petition was given in for the appellant, and answers for the respondent, the Court, on the 30th of June 1714, “adhered to their former interlocutor and refused the desire of the petition.”

Entered, 21 June 1715.

The appeal was brought from “the interlocutory sentences, or decrees of the Lord Polwarth the Ordinary in the cause of the 5th and 19th days of February 1714, and from so much of the interlocutors of the Lords of Session of the 11th and 30th days of June 1714, as affirms these interlocutors of the 5th and 19th of February.”

Heads of the Appellant's Argument.

Though the bond founded on by the respondent was prior in date to the heritable bonds on which the appellant claims; yet the said bond being only personal, it could not, unless apprising had been obtained prior to the date of the said heritable bonds, preclude the appellant from the enjoyment of the said annual-rents, which, by the heritable bonds and infeftments thereon, were real rights immediately affecting the said estate. Even if they had not been real rights, affecting the said estate, yet the respondent's adjudication in 1683, being more than ten years posterior to the decree of apprisings obtained by the appellant's father in 1671, it could not bar the appellant's right, for by the unquestionable law of Scotland such apprisings after 10 years give an absolute right to the estate so apprised to the exclusion of all subsequent rights.

The bond granted by the said Sir James Arnot for the 8000 merks for the use of Sir Robert his son, when his marriage happened to be dissolved, was but a personal obligation: It was granted at the desire of Bruce of Carnock to whom the money ought to have been repaid, but he being willing to give it to his son-in-law took it for his use; and this bond did not affect the estate till the adjudication was had thereon in 1683. Before this time the heritable bonds in the person of the appellant had been granted, and

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infeftment taken thereon, and the appellant's father had used his real execution by apprising against the same. That the bond for 8000 merks was merely personal, appears further from the assignment thereof by George Arnot the executor of Sir Robert, under which the respondent claims: For if it had been a real right to affect the said estate, it would have belonged to Sir Robert's heir and not to his executor, and of consequence the said George Arnot could not have had a right thereto, nor made a good grant thereof.

With regard to the decree of the Court of Session in 1678, nothing therein could alter the nature of the thing so as to make that bond a real, which was only a personal right; nor could this this decree affect the appellant, since neither his father nor he were parties called or appearing thereto. Nor ought this decree to be construed otherwise, than that the said estate would be subject to this debt, after the appellant's and other prior incumbrances were paid. But, however, nothing in the decree, which was posterior both to the heritable bonds and to the decree of apprising under which the appellant claims, and made between other parties, can prejudice the appellant's right; and his father had great reason to think himself safe, when no real incumbrance appeared on the said estate from the public records, which are a great security by the law of Scotland, and would be wholly frustrated if in this point the respondent should prevail.

Heads of the Respondent's Argument.

The obligation for the payment of the 8000 merks granted by Sir James the grandfather, did never affect or charge the fee in Sir Robert's person; but upon Sir Robert's death it affected and charged the reversion of the fee to the grandfather, and those claiming under him, so that they could not enjoy the estate, but charged with this sum.

Upon the dissolution of the marriage, all things behoved to remain as securities and pledges for one another, till there was a full performance by both parties of the marriage-contract; and if it was a real charge upon the estate it must be preferred to the appellant's, and all other debts contracted afterwards.

The rule is not universal, that all real rights are to be found upon record. For there are several real rights constituted by infeftments, where the conditions are not expressly mentioned: For, a wife infeft for a jointure, if the marriage dissolve within year and day, will retain her jointure till her portion be repaid, though there be no such quality in the infeftment: Excambion is likewise a real burden without infeftment, which indeed comes very near the present case. Nor can this be any uncertainty to creditors because not recorded; for the infeftment to Sir Robert was recorded, and no body would purchase the estate or lend money upon it, without knowing how Sir Robert was divested of that estate whereby they would know that this debt was a charge upon the same.

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The appellant made objection, that if this were a real burden upon the estate, it could not go to the executor. But the interest of all real debts goes to executors, and so do annuities, and yet they are real burdens and really secured: And the Court of Session in 1680, after finding this debt of 8000 merks to be a real burden, decreed the right thereof to the executor; and it is justertii to the appellant to make this objection, since the heir does not question the conveyance.

This debt being by the Court of Session in 1678 found to be a real debt upon the estate, preferable to all the debts of James the son, Lord Burleigh, who was a considerable creditor, was necessarily obliged, in order to secure himself, to purchase this debt. It would be to render the decrees of the Court of Session very precarious (which are at present looked upon to be the best title for a purchase) if they were to be overturned, after almost forty years possession under them.

Journal, 2 September 1715.

After hearing counsel, It is ordered and adjudged that the said interlocutors of the 5th and 19th of February 1714, and so much of the said interlocutors of the 11th and 30th of June 1714, as affirms those interlocutors of the 5th and 19th of February be reversed; and that the decree of apprising of the 25th of April 1671, obtained by the appellant's father, and the appellant's demand in respect of the annuities granted by the deeds of the 24th of May 1666, ought to have preference of and be satisfied out of the estate in question before the 8000 merks claimed by the respondent.

Counsel: For Appellant, Spencer Cowper. Rob. Raymond.
For Respondent, J. Jekyll. Will. Hamilton.

1715