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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Robertson of Goodlyburn v. George Earl of Kinnoul [1720] UKHL Robertson_287 (16 March 1720)
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Cite as: [1720] UKHL Robertson_287
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SCOTTISH_HoL_JURY_COURT
Page: 287↓
(1720) Robertson 287
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 63.
v.
Subject_Trust. — Oath of Party. —
A person who had conveyed his feu to his superior's son, having contended that the conveyance was deposited with a trustee, till certain conditions were fulfilled: after obtaining the oath of the superior, is also allowed the oath of the son, the disponee.
Subject_Peer. —
A matter referred to a peer's oath.
In 1695, appellant purchased a feu of the lands of Goodlyburn, and the Hole of Huntingtour, from Thomas Hay of Balhousie, afterwards Earl of Kinnoul, the respondent's father, for the sum of 3000 merks, to be holden of the said Thomas Hay and his heirs as superiors: and the appellant was to pay a feu duty for the same, amounting to about 20 l. sterling annually. Upon his feu-contract he was duly infeft upon the 26th of April 1695, and his instrument of sasine recorded.
The appellant having allowed his feu-duty to run in arrear, the respondent's father brought an action of reduction, improbation, and declarator against him before the Court of Session, for reducing his said feu-right; and decree in absence was pronounced against him on the 16th of December 1707. (a)
The appellant still continued to possess the lands. And upon the 31st of December 1713, he executed a deed renouncing, in favour of the respondent, all right, title, interest, claim of right, property, and possession, which he had or could pretend to the said lands with the pertinents; and he obliged himself voluntarily to remove from the same, and consented that the respondent should be at liberty to let the same. In April 1717 the respondent gave a notice to the appellant to quit the possession of the premises at Whitsunday then next: and thereupon also he brought an action of removing against him in his own baron court. This action the appellant advocated to the Court of Session, and he there stated, that the said renunciation had been made upon terms, viz. that the superior should pay back to the appellant the foresaid 3000 merks, which the appellant had paid for the said estate; and so much for the improvements which the appellant had made, as should be found to be just by two honest men, to be mutually chosen by the superior and vassal; and, lastly, that the superior should procure from his son the respondent, in whose favour the surrender was made, a lease of the premises to the appellant and his heirs for 19 years, upon the yearly payment of the foresaid feu-duty as a reserved rent:
That it was also agreed upon betwixt all the parties, when the surrender was executed, that the same should not be delivered, but
_________________ Footnote _________________ (a) In the Journals this interlocutor is stated to be of the 16th of February 1707; but both the appeal cases agree in giving the date of December.
Page: 288↓
The Court of Session on the 10th of December 1717 “decerned against the appellant in the removing.” The appellant presented several bills of suspension, offering to refer the depositation to the oaths of the late Earl of Kinnoul, of Sir Patrick Murray the alleged trustee, and of the respondent himself, in whose favour the deed was made. The Court directed, that the late Earl of Kinnoul should be examined upon oath, and he accordingly deponed that he remembered nothing of any terms of depositation. The Court by several interlocutors on the 5th of March, the 3d of April, the 22d of May, and 7th of July 1718, refused the bills of suspension, as to the examination of the respondent, and Sir Patrick Murray.
The appeal was brought from “several interlocutory sentences or decrees of the Lords of Session of the 16th of December 1707, 10th of December 1717, 5th March, 3d April, 22d May, and 7th July 1718.”
Entered, 22 Dec. 1719.
Heads of the Appellant's Argument.
The aforesaid decree of the 16th of December 1707, reducing the appellant's title to his estate, being in absence, when the appellant knew nothing of it; and when he thought he had nothing to fear from his superior, from whom he had so lately purchased the estate, and to whom a very small arrear was due, the appellant conceives can never be sustained, either to carry off his estate, of itself, or be a valid ground of the aforesaid renunciation.
The renunciation never having been a delivered deed by the appellant to the respondent, it can never divest the appellant of his right in the estate, and no proof was ever offered to be made by the respondent of the delivery thereof; he would only presume it to have been delivered because it appeared in his hands. But the appellant offered to take off this, and all other presumptions whatsoever, by referring the whole facts to the oaths of the late Earl of Kinnoul, the respondent's father, of the respondent, and of the trustee in whose hands the deed of surrender was deposited.
The oath of the late Earl of Kinnoul, without the oath of the trustee, makes nothing against the appellant: his lordship does indeed depone, that he does not remember the terms of the said depositation; yet in the same oath, he refers to the deposition of the trustee, who he says is an honest man and will tell the truth.
As the aforesaid decrees and interlocutors appear to be contrary to law, they likewise seem to be very inconsistent with equity and justice; for though the appellant be by them script of an estate and effects to the value of 1005
l. sterling and upwards, as appears by the stated account herewith delivered
(a), which was
_________________ Footnote _________________ (a) An account of the price and payments, &c. made by the appellant is annexed to his case.
Page: 289↓
Heads of the Respondent's Argument.
The respondent's father obtained a decree in 1707 against the appellant, voiding his right; the appellant, after that, continued to possess the premises as a tenant at will, and paid rent for the same; the appellant in 1713 executed a renunciation of all right and title he had to the premises, and that renunciation was absolute without any condition. After that time the appellant has still possessed as a tenant at will, and has run greatly in arrear, which obliged the respondent to bring his action of removing against him, whereupon he recovered judgment: and the respondent has been kept in law suits for several years, by the appellant a pauper, and the respondent will in all events be a very great loser by the appellant's obstinacy.
Judgment, 16 March, 1719–20.
After hearing counsel, It is ordered and adjudged, that the interlocutors and decrees complained of as to so much thereof, whereby probation by the oath of the respondent is refused to the appellant, or which is grounded upon such refusal, or made in consequence thereof, be reversed: and it is further ordered, that such probation be admitted, and that after examination of the respondent upon oath, the Lords of Session proceed and decree thereupon as shall be shall be just.
Counsel: For Appellant,
Bat. Turnbull.
For Respondent,
Rob. Raymond.
Will. Hamilton.