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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> The Commissioners and Trustees of the Forfeited Estates v. Sir Robert Grierson, of Lagg, Bart. [1720] UKHL Robertson_298 (30 March 1720)
URL: http://www.bailii.org/uk/cases/UKHL/1720/Robertson_298.html
Cite as: [1720] UKHL Robertson_298
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SCOTTISH_HoL_JURY_COURT
Page: 298↓
(1720) Robertson 298
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 65.
v.
Subject_Forfeiture — Tailzie. —
A father executes an entail in favour of his son; the son incurs an irritancy, but before declarator is attainted of treason: the Court of Session found that the estate returned to the father, though there was no declarator of the irritancy, and that the irritancy was not purgeable:—upon appeal, the judgment was found null, the Court not having jurisdiction.
The estate being held by the son upon a base infeftment from the father, the procurators of resignation in the hands of the Crown not having been executed, and an act of parliament having declared, that the estates of vassals attainted were to go to superiors continuing loyal; the Court upon this act adjudged the estate to the father; but their judgment was reversed upon appeal.
In October 1713, the respondent executed a voluntary settlement of his estate, in favour of his eldest son William Grierson, whereby he conveyed his estate of Lagg, to the said William, and the heirs male of his body, whom failing to the respondent's second, third, and fourth sons respectively and the heirs male of their bodies, with several other substitutions, the last of which was to the heirs whatsoever of the respondent. By this deed the respondent reserved his own life-rent, and his son William, and the other heirs substituted, were by acceptation obliged to relieve the respondent of all his debts: for this latter purpose the deed contained a proviso, that if at any time the respondent should be distressed with horning, or other diligence for payment of debt, upon notice or intimation given thereof to William Grierson, or the person succeeding to him, they should be obliged to relieve the respondent within six months after such notice; and the respondent reserved a power to himself to sell any part of the estate for payment of such debt, as he should be distressed for, to which sale the said William Grierson and his successors were obliged to consent; and if they failed therein, so that the respondent should not be relieved within six months after the date of the intimation or notice given, and after the signeting of a caption upon a registered horning against him, the said William Grierson and his successors were to forfeit their interest in the estate, and the disposition was to become void, and the respondent to return to the right and possession of the estate with power to dispose thereof as if the deed had never been executed. This disposition contained a procuratory of resignation for the purpose of obtaining new investitures from the crown, the superior, and a precept of sasine; in virtue of which precept William Grierson was infeft on the 29th and 30th of October 1713, and entered to possession; but he made no resignation in the hands of the crown.
Page: 299↓
The respondent on the 27th of April 1714, gave notice to his son William, that he was liable to be distressed for debt, and required him to concur in the sale of part of the estate, with certification in terms of the before mentioned proviso: and the respondent continuing to be distressed by hornings, captions, and otherwise, on the 12th of January 1715, renewed the said intimation and requisition; and on these several occasions, he took protests in the hands of a notary publick.
William Grierson, having been engaged in the rebellion 1715, was on the 31st of May, 1716 convicted and attainted of high treason. The appellants thereupon caused seize and survey his estate, as vested in them for the use of the publick from the 24th of June 1715.
5 Geo. 1. c. 22.
1 G. 1. c. 20.
Against this seizure and survey the respondent in terms of the act 5 G. 1. c. 22. presented two exceptions to the Court of Session. The first was, that the forfeiting person was not on the 24th of June 1715, nor at any time since, vested, in possession of, or interested in the said estate, because his right thereto became void before that time, by neglecting to relieve the respondent at the periods when he made requisition as before mentioned. And that before the 24th of June 1715, the respondent was vested in the absolute right of the said estate by virtue of the conditions in the said disposition. The second was, that supposing the forfeiting person's right to the estate to have stood good, yet he was infeft therein as vassal to the respondent; and consequently by his conviction and attainder the property which was lodged in his person was consolidated with the superiority in the person of the respondent, by virtue of the act 1 G. 1. c. 20. for “encouraging all superiors” &c.; and that, pursuant to that act the respondent had on the 22d of October 1716, obtained himself infeft in the lands in question, within six months of the attainder.
The appellants put in answers to these exceptions, and the respondent having produced four several instruments taken by a notary in the matter of the requisitions and intimations to his son, upon which also a proof by witnesses was had, the Court on the 28th of August 1719, “found it proved that the four instruments produced are true in their dates, tenors, and contents, and that the things in the said instruments affirmed to have been said and done were truly said and done as therein expressed; and found that by the facts set forth and affirmed by the said instruments, the right of the exceptant's son William was irritated and made void, and that the right and property of the said lands and estate of Lagg and others, described in the exceptions and writs to which they refer, had returned to the exceptant before the term at and from which the estates of traitors were by the act I Georgii vested in his majesty, and though there was no declarator of the irritancy, and found that the irritancy was not purgeable: and found that the exceptant's son William was vassal to the exceptant, holding the said lands and others of his father as superior thereof in 1713, and that the said holding was not changed before his rebellion: and
Page: 300↓
Entered, 28 Dec. 1719.
The appeal was brought from “an interlocutory sentence or decree pronounced by the Lords of Session the 28th day of August,” 1719.
Heads of the Appellants' Argument.
In so far as the said decree has relation to the first ground on which the respondent claims, the appellants conceive the Lords of Session had no jurisdiction to determine in the case, the respondent's claim being founded upon a right expectant upon a tailzied estate in the person attainted, to arise upon the breach of a condition: and therefore the decree so far as it is founded on that position, should be annulled (a).
The appellants conceive, that that part of the decree which has relation to the respondent's claim as superior is erroneous, for the following reasons:
The respondent was not superior to the forfeiting person, nor the forfeiting person his vassal, according to the meaning and natural understanding of the act above recited; since by the disposition executed by the respondent, the estate was fully made over to the son, the forfeiting person, to be holden of the Crown; and although the son, for his own conveniency for a time, did possess the estate by infeftment upon a precept or warrant from the respondent, and had not actually made a resignation of the estate into the hands of the Crown, yet since he had it in his power to make that resignation when he pleased, and to hold it of the Crown, the respondent's claim to the superiority is but an empty name. He was denuded of it at least by a personal right which was good against him the grantor; and this personal right was by William Grierson's treason forfeited to the Crown, and is vested in the appellants for the use of the public.
The act of parliament being intended for encouragement to superiors and vassals who should continue dutiful and loyal to his majesty, by giving the vassals a power to hold of the Crown, which they could not have had without the benefit of this act, and giving to the superior the right of property of the vassal's estate, who should commit treason, to be consolidated with the superiority; it is plain the act has relation to such superiors as had a fixed certain
_________________ Footnote _________________ (
a)
Vide note at the end of last case (No. 64.) on this point of the jurisdiction.
Page: 301↓
Even supposing the forfeiting person's title or vassalage was, in virtue of the clause in the act of parliament above recited, sunk into the person of the respondent, and consolidated with his pretended right of superiority, that could signify nothing; for still the personal right to the superiority, and the power of surrendering the estate into the hands of the Crown, which was in the forfeiting person, would remain entire and be forfeited to the Crown; and, so in virtue of that personal right, the appellants would be entitled to the estate, and could by law compel the respondent to divest himself of the estate in their favours, for the use of the public.
It was objected, that by the act every superior is to have the estate as if resigned into his hands ad remanentiam: and that if the forfeiting person in this case had so resigned into the respondent's hands, such resignation would have given the respondent full right to the estate. But this is founded on a misunderstanding of the clause: the act does not say that the superior shall have the same right as if the vassal had made a voluntary surrender ad remanentiam into his hands; but that the lands or tenements holden of the subject superior, shall recognosce and return into the hands of the superior; and then it describes the effects of that return and recognoscing, that it shall make the property be consolidated with the superiority, as if the said lands or tenements had been resigned ad perpetuam remanentiam. And the difference lies in this, that if the vassal made a voluntary surrender, such surrender might by interpretation be construed to be a conveyance or renunciation of all right the vassal had to that subject, supposing him to have a title distinct from the right of vassalage derived from the superior. But in virtue of this clause in the act of Parliament, the tenement being to recognosce as holden of the superior, no more does return but the fee or right of vassalage: and if the vassal had any separate right distinct from it, that is not transferred to the superior. And so in the present case, supposing the forfeiting person's right of vassalage was sunk into, and consolidated with the right of superiority, yet his personal right or disposition to that very superiority, would remain entire, forfeited by his treason, and would draw along with it the full right to the estate.
Heads of the Respondent's Argument.
(The respondent is silent in his case with regard to the allegation of the appellants that the Court of Session had no jurisdiction to determine on the first ground of his exceptions, but enters into an argument in support of the interlocutor of the Court
Page: 302↓
On the second ground of the exceptions the respondent proceeds.)
The act founded on provides its benefits to all superiors and vassals in the most extensive words: and William Grierson being vassal in the legal sense of the word, it does not alter the case that William Grierson had a power of changing his superior and holding his lands of the crown: for since he chose originally to hold them of the respondent, so long as he continued to hold them by that tenure, he was to all intents the respondent's vassal, and would by the law of Scotland have forfeited to him his life-rent escheat, &c.
It is true, that William Grierson might in virtue of the procuratory of resignation have made himself vassal to the crown, and it is equally true, that if he had been seised of the estate by no other title, this procuratory by his attainder being forfeited to the Crown, and by statute now vested in the appellants, would have empowered them to have made resignation as is above mentioned, and would have entitled them to the estate. But then it must be observed, that William Grierson was actually seised of the estate as vassal to the respondent; and that by the act “for encouraging all superiors” &c. made anterior to the forfeiture, the king grants the estates of vassals attainted to their superiors; and it enacts, that the property upon the vassal's attainder shall be consolidated with the superiority. This being the case, the very act which transmitted the procuratory of resignation to the crown viz. the attainder of the vassal, did by force of the statute “ for encouraging all superiors” &c. consolidate the property with the superiority, and of course barred the crown, and the appellants who claim under a grant from the crown, from asserting any right or interest in the procuratory of resignation.
Journal, 3 March 1719–20.
It being referred to the judges to consider whether the Court of Session, had jurdisdiction in this cause, they report, “that it appeared that the exceptant claimed by two rights: the one a right expectant upon an estate tail in the person attainted to arise upon the breach of a condition, whereof we conceive the Lords of Session had no jurisdiction; the other claim is as superior, whereof we conceive the Lord of Session had jurisdiction.”
30 March 1720.
Counsel on both sides agreeing with this opinion of the Judges, on the want of jurisdiction, and being heard on the merits as to the rest of the cause, It is resolved and decreed, that the Lords of Session had no jurisdiction to proceed and determine upon such part of the said exception as is above mentioned, and that their interlocutory sentence or decree, so far as the same is founded thereupon, be therefore declared null and void; and it is ordered and adjudged, that as to the said interlocutory sentence or decree of the Lords of Session, so far as the same is founded on that part of the exception whereby the respondent claims the said estate as forfeited to him as superior of his son William Grierson, be reversed: and it is further ordered, that the respondent be
Page: 303↓
Counsel: For Appellants,
Ro. Dundas.
Rob. Raymond.
For Respondent.
Dun. Forbes.
Will. Hamilton.