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Cite as: [1721] UKHL Robertson_342

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SCOTTISH_HoL_JURY_COURT

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(1721) Robertson 342

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 76.

The Commissioners and Trustees of the Forfeited Estates, Appellants

v.

Sir George Stewart of Balcasky, Bart. Respondent

20 Jan. 1720– 1721.

Subject_Fiar — Forfeiture for Treason. —

A crown vassal in 1707 sells and dispones his estate to an onerous purchaser, with procuratory of resignation, and other usual clauses, and the price is paid: the crown vassal in 1715 is attainted for treason, and the purchaser, who had not completed his title by infeftment, makes resignation, and takes sasine on a charter from the crown: The estate was not forfeited by the attainder of the seller.

By an act of parliament 1 Geo. 1. c. 42. intituled “an act for the attainder of George Earl of Marischall and others,” John Stewart of Invernytie was attainted of high treason. The appellants thereupon caused what they deemed to be his estate, particularly the lands of Gaskinhall, and others in the parish of kilspindy and shire of Perth, to seized and surveyed for the use of the publick.

John Stewart of Grantully in pursuance of the act 5 Geo. 1. c. 22. presented his exceptions to the Court of Session against the said seizure and survey, setting forth, that in May 1707, the said John Stewart of Invernytie by a mutual agreement entered into with John Stewart of Grantully, obliged himself to convey the said lands of Gaskinhall, and others to Grantully, and his heirs, subject to the jointure of Invernytie's mother; in consideration whereof John Stewart of Grantully obliged himself to pay at the rate of thirteen years' purchase of the rent payable in kind, and eleven years' purchase of the rent payable in money: and in pursuance of this agreement, John Stewart of Invernytie, with consent of Mary his wife, on the 11th of August 1709, executed a disposition of the premises in favour of John Stewart of Grantully, which was judicially ratified by the wife; and the purchase money, 30,000 l. Scots, was paid to the disponer on the day of executing the disposition, and a receipt granted for the same:

That on the 30th of September 1712, Invernytie's mother, for an onerous consideration, conveyed her jointure issuing ont of the premises to James Baird, Merchant in Edinburgh; and on the 7th of October 1712, Mr. Baird conveyed the same to John

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Stewart of Grantully, who immediately after entered into possession of the premises and continued therein, and received the rents and profits, till his death: and that Grantully on the procuratory of resignation contained in the disposition by Invernytie, in his favour, after Invernytie's attainder, obtained a charter from the crown, the superior in February 1718, upon which he was duly infeft.

To these exceptions the appellants made answers that, as Invernytie alone was infeft, at the time of the attainder, the estate was thereby forfeited. The Court of Session on the 16th of September 1719, “found that on or before the 24th of June 1715, the exceptant was in possession of the lands and others mentioned in the exceptions, by virtue of a disposition and deed of conveyance of the property thereof, made and executed before the 1st day of August 1714, and that in virtue of the said rights and possession, the exceptant has good right to the property of the said lands and others mentioned in the exceptions, and to the rents, issues and profits, since the said 24th of June 1715, and in time coming.”

Entered 21 Dec. 1719.

The appeal was brought from an interlocutory sentence or decree of the Lords of Session, of the 16th of September 1719.

John Stewart of Grantully, the original respondent, having died, the appeal was revived against Sir George Stewart, his heir, the now respondent.

Heads of the Appellants' Argument.

The Court of Session had no manner of jurisdiction in this case ^(a), since the attainted person was so far interested in the lands claimed by the respondent, that he was the only person who stood infeft in them as the vassal of the crown; a second deed of conveyance to any other person, with infeftment taken upon it, would have been preferable to the respondent's right, and would have vested the property in the second disponee.

The attainted person being the proprietor of the lands, the same became forfeited by his treason and attainder, without regard to any personal right or disposition upon which no infeftment had followed; and there is no law in Scotland, to support such a personal right against the effect of a forfeiture. The law has no regard to covenants made between the attained person and any third party, concerning such lands, is such third party have not completed his right before the treason or attainder: and if in any case a purchaser suffer, it is by his own neglect, since when he made a purchase, he ought to take care to complete his right in a legal way.

The respondent also insisted upon the act 1 Geo. c. 20. “for encouraging all superiors,” &c., by which the rights of lawful creditors are salved; and upon the act appointing commissioners

_________________ Footnote _________________

( a) See the case, Commissioners of Forfeitures v. Drummond, No. 64. of this Collection for an explanation of this argument. It is obvious, however, that the Court had jurisdiction in this case.

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to inquire of the estates of certain traitors, by a clause in which, dispositions made even after the 24th of June 1715 are declared to be as good in law, as if they had been granted before that day, the valuable consideration being proved otherwise than by the narrative of the deed. But when he puts his case upon these acts, he must admit that the Court of Session had no jurisdiction, because these acts and clauses of them made use of by the respondent, do all concern claims that were to be tried before the appellants, to or upon lands, where the legal estate was vested in the forfeiting person. The act first mentioned hath relation only to creditors for payment of just debts, which is not at all the respondent's case. Although the other act does declare dispositions made after the 24th of June 1715, to be as good in law as if they had been executed before that time, it determines nothing as to the import or effect of dispositions without sasine, which were executed before that day, but leaves them to the same effect they would have had, if this act had not been made; and therefore if before this law a disposition without infeftment could not be set up in bar of a forfeiture this act makes no alteration of the former law.

Heads of the Respondent's Argument.

It must at first sight appear inconsistent with every known principle of law and equity, that a purchaser for an onerous consideration, or in possession of an estate purchased for about ten or twelve years, and receiving the rents and profits during that time should forfeit that very estate by the attainder of the vendor so many years after the sale.

Though a subsequent disposition for a valuable consideration without notice, with infeftment recorded before that to the respondent, might be preferred to his, yet such preference can only be given to such purchaser, who first recorded his infeftment. But the grantor was nevertheless legally divested by the first conveyance; and the second conveyance, though good to the purchaser without notice, would be a wrongful act in the grantor, for which he might be punishable criminally, and any other estate he might have would be liable to make satisfaction to the first purchaser. As to the grantor, therefore, the deed, under which the respondent claims, divested him of the property, and the respondent might at any time, without any further conveyance or authority from the grantor have had infeftment, and has now actually obtained such infeftment, without any other right from the grantor; nor has the grantor made any subsequent conveyance to give occasion for any competition.

If the grantor were not wholly divested, yet by the act of parliament 1690, c. 33. “for security of creditors, vassals, and heirs of entail of persons forfeited,” it is expressly enacted, that all estates forfeited shall be subject to all real actions and claims against the same; and by this act the respondent's case would be within the provisions of that act, since his is a real claim upon, rather of, an estate.

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By a clause in the act “for appointing commissioners to inquire” &c. all conveyances made by the forfeiting person, even after the 24th of June 1715, are declared to be good, if the onerous consideration be proved; much more ought this which was made in 1707, and the price admitted by the appellants to have been paid. As this act has provided for every demand in equity as well as in law, though it should, for argument's sake, be admitted, that the property of the estate was not absolutely or finally vested in the respondent, yet certainly in equity he had the only title to it, and the grantor had no title in equity, nor could he forfeit any equitable interest, which was not in him, but in the respondent.

Judgment, 20 Jan. 1720–21.

After hearing counsel, It is ordered and adjudged that the petition and appeal be dismissed, and that the interlocutory sentence or decree therein complained of be affirmed.

Counsel: For Appellants, Ro. Dundas. John Willes.
For Respondent, C. Talbot. Will. Hamilton.

1721