United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

Page: 192↓

(1718) Robertson 192

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 44.

George Hamilton, an Infant, and William Hamilton of Grange, his Father, Tutor and Administrator in Law, Appellants

v.

Captain George Boswell, Brother to David Boswell of Balmutto deceased, Respondent

10th Feb. 1717– 1718.

Subject_Representation. —

Fountainhall, 19 Dec. 1701. Forbes, 25 July & 22 Nov. 1705.

A disposition is made by a person to one of his daughters, and the heirs of her body, whom failing to—, his heirs and assignees: upon this disposition the daughter is infeft, and dying without issue, her sister is served tanquam legitima et propinquior hæres to the father and her: it is found that the service ought to have been as heir of provision.

Subject_Curtesy. —

An heiress's infeftment, reduced after her death for informality, but not quarrelled in her lifetime, is sufficient to support the curtesy.

John Bruce of Wester Abnie, deceased, had two daughters, Margaret and Elizabeth. Margaret the eldest was married to the respondent, Captain Boswell; and had issue one daughter, Margaret Boswell, who afterwards became the wife of the appellant William, and mother of the appellant George. John Bruce, the father, made a disposition of the said lands of Wester Abnie and others to his said daughter Elizabeth, and the heirs of her body, whom failing to —— his heirs and assignees whatsoever. The said John Bruce soon after died, as did also the said Elizabeth his daughter, (to whom infeftment had been given on the disposition), without heirs of her body; whereby the said subjects descended to Margaret Boswell, daughter of the respondent and the said Margaret, the daughter of John Bruce, Margaret the mother being then deceased.

The respondent's daughter being under age, he had caused her to be served in special tanquam legitima et propinquior hæres to her grandfather John Bruce and her aunt Elizabeth; and after this service infeftment was taken, and the instrument of sasine duly recorded. The respondent entered to the possession of the estate, and received the rents and profits thereof.

By contract of marriage, entered into in October 1698, between the appellant William, and the respondent on the part of the said Margaret his daughter, it was agreed, that the respondent should give his daughter 6000 merks in marriage portion; and in consideration thereof, that she and the said William Hamilton, after their marriage, should make a conveyance in favour of the respondent, her father, of the estate she had succeeded to as aforesaid. The marriage accordingly took effect, and in consequence of the said contract or agreement, the appellant William, and his wife Margaret, who was still under age, executed a disposition of the premises to the respondent.

Soon after the appellant William and his wife brought an action before the Court of Session against the respondent for reduction

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of the Said contract or agreement, and the disposition made in consequence thereof, as being obtained by fraud, and while Margaret was under age. The pursuers stated, that at the time of the treaty for the marriage, the respondent represented the estate to be worth nothing, as being greatly incumbered, and insufficient to answer the debts: that however out of regard to his daughter the respondent proposed to give her the said 6000 merks, in consideration of their conveying the estate to him. And that the pursuers being entire strangers to the circumstances of the estate, and relying upon the respondent's veracity, agreed to the terms proposed.

After sundry proceedings in this action, and a proof relative to the lesson taken therein, the Court, on the 19th of December 1701, found “That Margaret Boswell, being a minor when she signed her marriage contract and the disposition, she ought to be relieved against the same; but, that William her husband, being of age, and having proved no concussion or circumvention, the reasons offered by him were not Sufficient to relieve him against the deeds subscribed by him before and after his marriage; and therefore assoilzied the respondent from his action.” And after a count and reckoning, the Court, on the 25th of July 1705, “reduced the said deeds in so far as they were granted or subscribed by the said Margaret Boswell, and could be any way extended against her and her heirs; and found that she ought to be reponed against them upon enorm lesson and minority; and likewise reduced the said obligation entered into by the appellant William, whereby he under a penalty obliged himself, that the said Margaret should convey, but the appellant William being major assoilzied the respondent from the said action so far as the said appellant William could have any right by his jus mariti or curtesy to the subject disponed by his wife and him to the respondent ^(a).”

Margaret, the respondent's daughter, dying in 1710, the appellant William, her husband, caused their son the appellant George to be served heir to John Bruce his great grandfather, and Elizabeth his great aunt: and thereupon commenced two several actions in the name of his son before the Court of Session, against the respondent; the one to reduce and make void the rights and titles that had been established in the person of Margaret the wife; and the other to remove the respondent from the life-rent estate.

The causes were conjoined, and after sundry proceedings the Court, upon the 29th of June 1714, “Found that by the conception of the disposition by John Bruce to Elizabeth, and she having died without heirs of her own body, the succession did not devolve upon Margaret Boswell as heir of line to Elizabeth, but devolved upon the heirs of line of John Bruce as heirs of provision to Elizabeth, and that the titles the appellant

_________________ Footnote _________________

(a) These interlocutors and affirmances thereof form the subject of a second appeal between the same parties in 1721; but they do not enter into the present question.

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had made up for his son carried only the right of superiority and were not sufficient in a removing.”

The appellant George's titles were made up of new in terms of that interlocutor; and it was contended on his part that his mother's service and sasine not being as heir of provision to Elizabeth, the same was void. The Lord Ordinary, by interlocutors on the 25th of January and 25th of February 1714–15, reduced the said Margaret's “sasine, and decerned the respondent to quit the possession, since Margaret was not served heir of provision to Elizabeth.” But the Court, on the 24th of June 1715, “found that Margaret Boswell's relation was cognosced both to John and Elizabeth Bruce in terms of the foresaid interlocutor of the 29th of June, and remitted it to the Lord Ordinary to hear parties upon the nullities objected to Margaret's infeftment.”

Parties being afterwards heard on the alleged nullities of the retour and infeftment, before the Lord Ordinary, his lordship, on the 15th of July 1715, “sustained the first nullity objected against Margaret Boswell's retour as heir to the deceased Elizabeth Bruce, in regard Elizabeth Bruce was infeft upon her father John Bruce his precept in all the lands disponed by him to her, whereby she held the lands of John Bruce the disponer, and not of the crown as the record bears. And as to the second and third nullities that the precepts for infefting the said Margaret were not directed to the proper officers Sustained the Same, and likewise the objection against the Said Margaret's infeftment of the burgage lands, in respect her predecessor Elizabeth Bruce her infeftment therein was null, the same bearing to be past on the precept in John Bruce's disposition, and yet that precept of sasine does not contain these lands.”

1695, c. 24.

The respondent having reclaimed against this interlocutor, insisted, that though there might have been some omissions in the form of passing these sasines, yet although she had never been infeft the curtesy ought to subsist; and in support thereof he founded upon the act of parliament 1695, c. 24. intitled, “Act for obviating the frauds of apparent heirs.” And he contended that she having been in possession for many years, the appellant her son could not pass by her, but must be liable to her deed, whereby the curtesy to her husband was supported. And 2dly, That the infeftments, not having been objected to in Margaret's lifetime, were sufficient to support the curtesy. The Court, on the 27th of July 1715, “repelled the defence upon the act of parliament, but found, that Margaret Boswell's infeftment not having been quarrelled in her own lifetime was sufficient to support the curtesy.” And upon the 28th of July “assoilzied the respondent from the appellant's action.”

The appellants having reclaimed, the Court, on the 15th of June 1716, “found, that the respondent's right to the curtesy ought to subsist, in regard if his daughter's infeftment had been quarrelled in her lifetime, he might have made up the defects thereof by infefting her again.” And to this interlocutor the Court adhered on the 4th and 20th of July thereafter.

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Entered, 22 March 1716–17.

The appeal was brought from “an interlocutor of the Lords of Session, made the 24th of June 1715, and from that part of the interlocutor of the 27th of July following, finding Margaret Boswell's infeftment not being quarrelled in her lifetime was sufficient to support the curtesy; and also from the interlocutor of the said Lords of the 28th of July 1715, the 15th of June, 4th and 20th of July 1716.”

Heads of the Appellant's Argument.

Since the Court, by their interlocutor of the 29th of June 1714,found, that the Succession did not devolve upon Margaret Boswell as heir of line to Elizabeth, but to the heirs of line of John Bruce as heirs of provision to Elizabeth, and upon this foot the appellant George was obliged to be served of new; it is hard to conceive how Margaret could claim the succession, since she is served only heir general to Elizabeth, which is entirely different from what the interlocutor requires; for in that case she ought to have been served tanquam hœres provisionis, or hœres virtute provisionis; and it is impossible that a person can be served heir of provision, and the service and retour say nothing of it.

The deed of conveyance made by the said Margaret and the appellant William of the lands in question to the respondent was reduced and declared null upon the head of minority and lesion, in so far as concerns the interest of Margaret and her heirs, but in so far as concerns the appellant William's curtesy it is not reduced. If Margaret the wife, however, was never infeft, then the husband could convey no curtesy, because he could have none. And it is an undoubted principle that the husband can have no curtesy but of such lands as the wife was in her lifetime seised in: but the wife in this case was not seised, or, which is the same thing, was not not duly seised, and her infeftment was null. If then the wife was not infeft, or if her infeftments were null, and the succession did not really devolve upon her, how can that infeftment sustain a curtesy?

Heads of the Respondent's Argument.

Margaret was served tanquam legitima et hæres to John her grandfather, and to Elizabeth her aunt; which being a general designation, applicable to all heirs in suo genere, though it did not express the word heir of provision, the same must be understood under all the characters, whereby she could represent them, and infeftment and possession of the lands was taken upon that service. The Court of session, by their precedents (in Forbes's Decisions), Livington v. Menzies, 22d January 1706, and Lord Dalhousie v. Lord and Lady Hawley, 13th November 1712, established this doctrine. And the reason is stronger in this case, where Margaret was served heir in special to her grandfather and aunt, which includes a general service.

Though the sasines were reduced, yet the husband's curtesy must subsist, because there was no lesion to the heirs of the marriage; for when Margaret the heiress died, she stood infeft, and

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in possession from the date of her service to her death, which was some years, and her father accounted to her and her husband for the rent of the estate till her marriage, and consequently the curtesy once took place, and so accressed to the respondent all the time she lived; and, if the respondent had not depended upon the disposition made to him by his daughter and her husband, he could easily have served her heir to her aunt and grandfather in the same manner the appellant William has done his son. It will not be pretended, that the appellant George could have succeeded while his mother lived; and for the same reason, not so long as his father lives; for it is not to be supposed, that his own birth, entitled him both to the fee and life-rent of the estate, and so to exclude his father and mother's interest therein. And it is observed by Lord Stair, in his printed Decisions, Gray v. Gray, 25 July 1672, that although an infeftment or sasine were reduced as to the fee, yet that it did subsist as to the husband's life-rent; because, that there was thereby no lesion to the heirs, seeing it was presumed the husband would have cognosced his spouse heir, if that infeftment had been quarrelled in her lifetime, and so enjoyed the curtesy.

Journal, 10 Feb. 1717–8.

After hearing counsel, It is ordered and adjudged, that the said petition and appeal be dismissed this House, and that the several interlocutors therein complained of be affirmed.

On the point of the representation, the precedent does not appear to be observed by former Collectors of Decisions.

A part of the cause between the parties is given by Bruce but it seems merely interlocutory, being, in effect, subsequently reversed by the Court.

1718