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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Simon Lord Lovat v. Emilia Lady Dowager of Lovat, Alexander Mackenzie of Garloch, an Infant, by his Guardians, and Others (stiling themselves) real Creditors upon the Estate of Lovat, and Hugh Mackenzie and Patrick Robertson, Factors appointed upon the said Estate [1721] UKHL Robertson_355 (1 April 1721)
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Cite as: [1721] UKHL Robertson_355
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SCOTTISH_HoL_JURY_COURT
Page: 355↓
(1721) Robertson 355
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 80.
v.
Subject_Real and Personal. —
A disposition is made of an estate to one person in life-rent, and to others in fee, with the burden of payment of the grantor's debts: in a competition between the grantee of the life-rent escheat of the life-renter, and the debtors of the grantor of the disposition, the Court found that these debts were real, and did affect the estate; but their judgment is reversed.
A grantor of a deed declares, that if children's portions are not paid in his lifetime, persons whom he names may appoint a factor, after his death, to receive certain rents, and pay these portions: these portions were real debts affecting the estate.
Subject_Sequestration. —
Obtained irregularly is set aside.
Subject_Presumption. —
Marriage provisions presumed to be compensated by the gian of and accepting a posterior provision.
Children's provisions not claimed till after a forfeiture, and the lapse of several years after a locality might have been made effectual to pay them, were not presumed to be paid; an affirmance.
By the decision in the former appeal, (No. 53. of this Collection) the appellant was confirmed in his right as grantee of the life-rent escheat of Alexander Mackenzie of Fraserdale, the attainted person; and it was ordered and adjudged, “that the rents of the estate in question should be paid to the appellant according to his grant; but that such debts of the said Alexander Mackenzie as were real, and did by the law of Scotland affect the said estate, at the time of the forfeiture of the life-rent escheat should be charged on the said estate in due course of law.” It now became a question between the appellant and respondents whether certain debts claimed by them were real or not, or whether they did affect the said estate. These questions took their rise from the following circumstances.
By contract of marriage in 1690, between Hugh Lord Lovat deceased, and the respondent Lady Emilia, daughter of the late Marquis of Athol, the said Hugh Lord Lovat, in consideration of the then intended marriage, obliged himself to settle upon Lady Emilia as a jointure, several lands therein particularly mentioned, of the value of 4000 merks Scots per annum, and likewise an annuity of 2000 merks per annum, charged upon the lordship of Lovat, and lands of Stratherrick and Abertarf; and accordingly, pursuant thereto, a charter was obtained from the crown, and Lady Emilia was infeft in the premises in May 1694.
Page: 356↓
In September 1696, Hugh Lord Lovat executed a bond of provision to his daughters the Honourable Ann, Catherine, and Margaret Fraser, three of the present respondents, for 10,000 merks Scots, payable to each of them at their age of 16 or marriage: and this bond was registered in October 1700.
The estate of Lovat being very much incumbered and adjudications led thereon prior to said marriage-settlement, the greatest part of these adjudications were purchased in by Roderick Mackenzie of Prestonhall, one of the Senators of the College of Justice, whose son Alexander Mackenzie, the attainted person, married Emilia, some time stiled Baroness of Lovat, eldest daughter of the said Hugh Lord Lovat. In 1706, Lord Prestonhall, obtained a charter of adjudication from the crown of the estate of Lovat, upon which he was duly infeft; and he afterwards executed a deed granting to the said Alexander Mackenzie and his wife 4000 merks per annum charged upon the said estate; and he also executed an entail thereof, to Alexander Mackenzie in life rent, whom failing to Hugh stiled master of Lovat his son, and the heirs male of his body, whom failing to certain other heirs therein mentioned. This deed of entail when reciting the particular lands out of which the respondent, the Dowager Lady Emilia's jointure of 4000 merks was secured, expressly mentioned that the same should continue a burden upon these lands; but it took no notice of the annuity of 2000 merks before mentioned, which had been also provided to her by her marriage contract, and charter and sasine thereon. The deed likewise provided “that the said Alexander Mackenzie, his life-rent, over and above the said 4000 merks provided to him and his lady in life-rent, and the other heirs their fee should be affected and stand burdened with the payment of all the lawful debts, and to the performance of all the deeds that the said Roderick Mackenzie should happen to be bound in or obliged to perform at the time of his decease by bond, or any other manner of way whatsoever: and that in case the daughters of the said Hugh Lord Lovat deceased, were not satisfied and paid their portions in the life-time of the said Roderick Mackenzie, that it should be in the power of the persons therein named to appoint a factor or receiver of the rents of the lands of Stratherrick and Abertarf within one year after the grantor's death, and to apply the rents of the said lands to the payment of their fortunes.” In terms of this entail a charter was obtained from the crown, upon which infeftment was duly taken. Lord Prestonhall died in 1708.
In February 1717 the father of the respondent Alexander Mackenzie the infant, to whom Lord Prestonhall was indebted by bond, obtained a decree of declarator and adjudication (after the dates of the forfeiture and gift of life-rent escheat,) declaring the life-rent of Alexander Mackenzie the forfeiting person, and the fee of Hugh (stiled) Master of Lovat, and the lands themselves subject to the payment of what was due on said bond, amounting to 6132 l. Scots.
Page: 357↓
The respondent Lady Emilia, and other creditors likewise brought their several actions before the Court of Session, to have their demands ascertained, and to have the rents of the said estate applied in satisfaction of their debts, as real charges on the estate. The persons, too, authorized by the deed of entail 1706, to appoint a factor upon the lands of Stratherrick and Abertarf for payment of the said young ladies' fortunes, named a factor accordingly; and the said ladies and their factor likewise brought their action to be preferred to the rents of these lands. And the respondent the infant, brought an action of mails and duties in virtue of the said adjudication. To these actions the appellant made defences, and insisted, that the clause in the entail did not make the debts of Lord Prestonhall, real charges upon the estate; that, as to the respondent, the dowager's, claim of 2000 merks, it was included in her jointure of 4000 merks specified in the entail, at least so it was to be presumed, since in that deed notice is only taken of the 4000 merks; that it was to be presumed that the fortunes of the respondents, the daughters, were paid, but if they were not, they could not be looked upon as a real charge, there being nothing in the deed declaring them to affect the lands themselves, but only a locality granted for payment of the portions, and that the respondent, Alexander Mackenzie's debt, being very old, was presumed to be paid.
The Lord Ordinary on the 25th of January 1718, “found that the said Lord Prestonhall, having conveyed his estate to Mr. Mackenzie, the forfeiting person, with the burden of his debts, and the said burden being repeated both in the procuratory of resignation, and precept of sasine, and also repeated in the infeftment following thereupon, the said Lord Prestonhall's debts are real, and preferable to the debts and deeds of Mr. Mackenzie; and that the respondent, Alexander Mackenzie, was creditor to Lord Prestonhall, by virtue of the instructions in process before the date of the entail, and therefore preferred him to the appellant the grantee, his tutor deponing upon the verity of the debt: and likewise preferred the factor appointed for the lands of Stratherrick and Abertarf, according to the said deed of settlement, until the respondents, the daughters, should be paid and satisfied their said fortunes and interest thereof according to the said entail; and likewise found the respondent, the lady dowager, was provided with an annuity of 2000 merks per annum, out of the lordship of Lovat and other lands, and therefore preferred her likewise for her said annuity.”
And after a representation and answers, the Lord Ordinary, on the 15th of February 1718, “adhered to his former interlocutor, finding these debts real burdens, preferable to Mr. Mackenzie, the forfeiting person, and so that they must exclude the grantee of his escheat; and found it relevant, if it be insisted upon, that the portions of the late Lord Lovat's children are satisfied in haill or in part; as also that the lady dowager's last provision is in satisfaction of her former by her contract of marriage; but
Page: 358↓
The appellant reclaimed against these interlocutors to the whole Court, and their Lordships by several interlocutors, on the 28th of February 1718, the 23d of June, the 3d and 14th of July, and 24th of December 1719, confirmed the foresaid interlocutors of the Lord Ordinary.
Previous to the former appeal, the creditors of the forfeiting person, who were then litigating with the appellant, arrested the rents of the estate in the hands of the tenants; and in the multiple poinding subsequent thereto, the rents were found subject to the debts and diligences of these creditors, preferable to the appellant, and a factor was appointed to receive the same. After the order on the said appeal had been served, the appellant presented a bill of suspension in the name of the tenants, upon the ground of his appeal, and all execution was accordingly stayed thereon. Pending the action with the present respondents, they, in June 1719, presented a petition to the Court praying leave to discuss the reasons of suspension of the said bill, (which had been given in against the then factor in another cause); and that in the mean time the said estate might be sequestrated, and a new factor appointed to receive the rents.
On the 27th of June 1719, the Court “remitted to the Lord Ordinary, before whom the aforesaid bill of suspension was presented, to discuss the reasons summarily on the bill, but ordered the appellant to answer the said petition as to the sequestration against Tuesday then next.” But no answer having been given in, the Court, on the 30th of June 1719, “remitted to the Lord Ordinary to sequestrate the estate, and to name a factor to receive the rents.” On the 18th of July thereafter, the Lord Ordinary sequestrated the estate, and named Mr. William Fraser, factor thereon.
The appellant reclaimed against these interlocutors, praying that they might be set aside, and the sequestration recalled, and amongst other things insisted, that the said Alexander Mackenzie, the forfeiting person, had a right to 4000 merks per annum, out of the rents of the estate preferable to all debts, and therefore that these rents should not be sequestrated. The respondents made answers, and the Court, on the 31st of July 1719, pronounced this interlocutor “in regard there was no instruction that the 4000 merks of life-rent reserved free of the burden of debts was allocated on any part of the said estate, and as there are no instructions of the objections against the factor named, adhere to the said Lord Ordinary's interlocutor, both as to the sequestration and nomination of the factor, reserving to the appellant to be heard on his right to the said 4000 merks, when he shall insist therefore.”
Page: 359↓
William Fraser, however, not finding security, upon application of the respondents, Mr. Hugh Fraser and Patrick Robertson were on the 10th of November 1719, named factors of all the estate of Lovat, except the lands of Stratherrick and Abertarf, (upon which a factor was appointed by the persons named in the deed of 1706, for security and payment of the young ladies' fortunes,) who gave security to be answerable as the Court should direct.
Entered, 13 Jan. 1719–20.
The appeal was brought from “several interlocutory sentences or decrees of the Lords of Session of the 25th January, the 15th and 28th February 1718, the 23d of June, the 3d and 14th July, and 24th December 1719; and from the interlocutors and other proceedings in relation to the sequestration of the estate of Alexander Mackenzie, late of Fraserdale, and appointing a factor to receive the rents thereof.”
On the Sequestration and appointing a Factor on the Estate.—Heads of the Appellant's Argument.
The proceedings therein are wholly irregular, as not being had in any action brought by any of the respondents against the appellant, but only grafted upon his bill of suspension in another cause, at the instance of other creditors, whose debts were merely personal to which the respondents, or any of them, were in no ways parties, or so much as named therein, and which action was determined by the judgment in the former appeal.
By that judgment, the rents and profits of the estate are ordered to be paid to the appellant; but it would be absolutely ineffectual to him, if at the suit of any pretended creditor, the Lords of Session may, on a summary application, sequestrate the estate and appoint a factor to receive the rents. And though by the said judgment such debts as are real, and did by the law of Scotland affect the estate at the time of the forfeiture, are allowed to be charged thereon in due course of law, yet the appellant apprehended that such debts were to be paid by him out of such rents and profits as should be received by him, and until he should make default therein, it would be unreasonable to bring the charge of a factor on the estate, which must consequently fall upon the appellant. And further the respondents' debts cannot be said to be real in the sense of the former judgment; for it will not be pretended, that they could have produced any real action to exclude the appellant's gift of escheat; and however they may be considered in some sense to be real, so as to make them preferable to the debts and deeds of the grantor's heir, yet it will not thence follow that they are real with respect to the forfeiture; since at that time they could no more have produced a real action, than the merest personal debt whatever.
Heads of the Respondents' Argument thereon.
There was no actual suspension of the action at the instance of the creditors, but only the reasons of suspension ordered to be heard. As creditors upon an estate which is much encumbered, have a right to apply to have it sequestrated, and a receiver or
Page: 360↓
It was the appellant's own fault that he did not insist in the reasons of suspension; he had notice, and might have done it, and no doubt had there been any thing of moment to be objected, he would have appeared by his counsel. Since he did not, it seems improper for him to complain at this time.
As the judgment on the former appeal directs the payment of the rents to the appellant according to his grant, so it directs, that the real debts of the said estate be charged thereupon in due course, according to the law of Scotland. This judgment gives no new right to the appellant, but leaves him as grantee, and the real creditors upon the foot of the law of Scotland in the like cases; and it cannot be pretended but that creditors upon an estate are by that law entitled to a sequestration of the estate for the just payment of their debts, and consequently the judges have only pursued their usual rules and methods in such like cases. And since there may be interfering interests among the creditors themselves, as it is plain there are interfering interests between the grantee and the creditors, nothing can be more just, nor more agreeable, both to the intention and words of the decree of the House of Lords, than that the rents should be secured in due course of law for the benefit of all concerned, that is, by a sequestration.
On the interlocutors finding the claims of the respondents to be real charges on the estate.—Heads of the Appellant's Argument.
As to the lady dowager's claim of 2000 merks annuity more than the 4000 merks provided to her by the said Roderick Mackenzie's settlement, which she has all along enjoyed, and never had or claimed more till since the forfeiture; it is to be supposed that the said 4000 merks so secured to her were agreed by her to be taken in full of all she could demand by her contract of marriage. From this it is apparent that she was excluded by the prior incumbrances which had been purchased by the said Roderick Mackenzie, whereby he got an absolute right to the said estate: and more especially since in the charter which he thereby obtained from the crown, there is no exception of her right by the marriage contract, nor is there any proof that she ever claimed or received more than the now enjoys.
Page: 361↓
As to the ladies' portions it is to be believed that they were paid by the said Roderick Mackenzie before his death, when they had become due, being payable at their respective ages of sixteen, or marriages; and more especially since two of them have been married about sixteen years. If they had not been so paid, the lands of Stratherrick and Abertarf must, according to his settlement, have been sequestrated, and a factor appointed to receive the rents thereof the next year after his death, which happened in 1708, whereby they would soon have been paid; and yet no factor was appointed till after the grant of the life-rent escheat to the appellant.
As to the respondent Mackenzie's pretended debt, it may reasonably be believed, that the same was paid by the said Roderick Mackenzie in his lifetime, since no action had been brought, or the bonds so much as registered, in so many years till after the forfeiture. But, further, this general clause in the settlement, wherein this pretended debt is not mentioned, could not make it a real charge on the estate at the time of the forfeiture, the respondent not being thereby entitled to bring any real action against the said estate. And if clauses of this nature should have such a construction, no purchaser of land in Scotland could be safe; and the appellant's case is much stronger than that of a purchaser. Besides, the respondent's decree of adjudication is null and void, as to the appellant, who was in possession of the said estate by virtue of his grant, before the same was obtained, and yet he was never made a party to the action.
The Court of Session put it on the appellant to prove, that the claims of the respondents were satisfied, which it was impossible for him to do, the discharges or agreements relating thereto being all in the custody or power of the forfeiting person, for whose interest these and other claims are collusively set up to cover the estate against the appellant. On the other hand, if these claims be just, the lady dowager might have proved, that the 2000 merks annuity, more than the 4000 merks which the has all along enjoyed, had been paid to her, at any time since the provision made for her by the said settlement; and her daughters might have proved the payment of interest for their respective portions, within some reasonable time before the forfeiture; and the respondent Mackenzie might have proved payment of interest, or given some other satisfactory proof of the justice of his debt; none of which have been done.
But if any debts shall, after a due examination, be found just and real, so as to affect the estate, the appellant is willing to pay the same in their due course, on their being assigned to him; and it would be very unreasonable if such creditors should not be obliged to assign their respective debts, on payment thereof, but that they shall be still kept up on the estate to exhaust the whole rents during the attainted person's life: and more especially since his lady has 300 l. sterling per annum allowed to her by the government out of all the rest of the forfeited estates in Scotland: so
Page: 362↓
Heads of the Respondents' Argument thereon.
The lady dowager does not possess either her jointure or annuity by virtue of Lord Prestonhall's deed of settlement, but by virtue of her marriage articles, and a charter from the crown, and sasine thereon; and by these she is entitled to 4000 merks out of certain lands, and an annuity of 2000 merks out of the whole estate, and no expression in Lord Prestonhall's deed can be any bar to her right, since the does not claim under it. Besides, the appellant mistakes the deed of settlement, for it contains no restriction of the respondent's right. All that is said there is, that when enumerating the particular lands out of which the said 4000 merks were issuing and making a settlement of them, Lord Prestonhall does it with a reservation of the respondents' right out of these lands, but does by no means restrain her claim to that sum only.
The portions to the daughters were not paid; and is the appellant thinks he has any reason to insist upon that, he is at liberty to do so: but he cannot expect, as he pleaded below, that the respondents should prove that they are not paid: that were to take the burden of proving a negative; and indeed, the appellant never pretended that they were paid, but only insisted that it was to be presumed they were. Though the persons entitled to name a factor upon the lands might for some time neglect to do it, because the daughters might depend upon Mr. Mackenzie's paying them, that was no argument why they, when the estate went into other hands, might not apply to have a factor named for their better security; and as the deed of settlement under which Mr. Mackenzie, and consequently the appellant, as grantee of his escheat, claims, is expressly burdened with that power, and the persons entitled to execute it have done so, it is difficult to know why the appellant should complain. The assignment to the rents of the lands in question, and the power to name the factor being an express burden, affecting both the dispositive clause and procuratory of resignation contained in the deed of settlement, it gives the children a real right and immediate access to the rents, preferable to any person claiming under that settlement, as the appellant does.
It is denied that the respondent Mackenzie's debt was paid; the respondent's tutor was, at the appellant's desire, directed to make oath of the truth of the debt, which he offered to do, but the appellant did not insist upon it; and he is, by the very interlocutors complained of, allowed to insist upon any defence of payment.
The debts of the grantor were certainly real by the express words of the clause in the deed of settlement, for the life-rent of Alexander Mackenzie, and the fee of the master of Lovat, are declared subject to the payment of all the grantor's debts; and this is the method by the law and constant practice of Scotland,
Page: 363↓
Judgment, 1 April 1721.
After hearing counsel, It is ordered and adjudged, that the several interlocutors of the Lords of Session complained of, by which the estate in question is sequestered, be reversed, without prejudice to any future sequestration that may, upon just cause, be granted in a proper and regular method against the said estate, for any such debt as is chargeable thereupon, agreeably to the decree mada in this House in the former appeal; and that so much of the interlocutors complained of, as decree the annuity of 2000 merks to the Lady Dowager Lovat, and the debts claimed by and on the behalf of Alexander Mackenzie of Garlock, the infant, and other real creditors upon the said estate, be reversed; and that such of the interlocutors as prefer the factor appointed for the lands of Stratherrick and Abertarf, in pursuance of the Lord Prestonhall's deed, for the portions of the respondents, Anne, Catharine, and Margaret Fraser, until the said respondents should be paid their respective portions of 10,000 merks each, with interest, be affirmed, without prejudice to the appellant, to object upon payment, or any other ground of law against the said debts as accords.
Counsel: For Appellant,
Rob. Raymond.
Sam. Mead.
For Respondents,
Ro. Dundas.
Wil. Hamilton.
The sequestration in this case was set aside upon an informality; it may be of importance to see from the record what was done therein in the subsequent proceedings between these parties.
The judgment is of great importance, in regard to the effect of a clause in a disposition burdening the subjects conveyed with payment of the grantor's debts; and appears to form a leading case thereon.