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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Charlotta Marchioness Dowager of Annandale, and the Lords George, and John Johnston, her Children, Infants, by their Mother and Guardian v. James Marquis of Annandale. [1722] UKHL Robertson_417 (21 December 1722)
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Cite as: [1722] UKHL Robertson_417
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SCOTTISH_HoL_JURY_COURT
Page: 417↓
(1722) Robertson 417
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 94.
v.
Subject_Provisions to heirs and children. — Presumption of revocation. —
A father executes a deed in favour of his heir giving him a locality over part of his estate, and assigning the tacks to him, with warrandice from fact and deed, and a power of revocation by writ under the grantor's hand: The first year the father marked the rents of the allocated lands, in his rentals, as to be paid to the son; the next year this was not done, and the factor received a letter to pay no more of the son's bills. The allocation was not thereby revoked.—
But a deed of revocation found in the grantor's repositories after his death, though not published or recorded, revoked the allocation.
William Marquis of Annandale, in 1686, married Sophia, the daughter and only child of John Fairholme, Esq. who was possessed of a large estate, which afterwards came to the said marquis. By the contract of marriage, the said marquis in consideration thereof, and of 80,000 merks Scots, paid down for the lady's portion, bound himself to resign his estates for new infeftments thereof, in favour of himself and the heirs male of that marriage; and accordingly he afterwards executed a deed of entail on the 25th of February 1690, resigning and settling all his lands and estates therein particularly mentioned to himself in life-rent, and to the respondent his eldest son of the said marriage
Page: 418↓
On the 7th of March 1715, the late marquis by his deed reciting the said settlements and that in consideration of the dutiful respect testified by the respondent, and for his convenient support, he did out of his good pleasure renounce and assign in his favour a part of the said estate, of above 500 l. sterling per annum, value, assigned the tacks thereof to the respondent, and empowered him to receive the profits thereof at Whitsunday then next, for the half year preceding, and yearly thereafter with an express clause in these words:
“and we do hereby declare that these presents are to continue till we recal the same by writ under our hand.”
The warrandice run in these words, “this renunciation and assignation we oblige ourselves to warrant from our own act and deed, done or to be clone in prejudice thereof, except the before-mentioned tacks.”
In consequence of this deed or allocation, that part of the estate appropriated to the respondent, was not inserted in the rental signed by the marquis, and delivered to his factor, (as usual,) as a rule for levying the rents, for the year 1715; and the respondent accordingly had the profits for a year and a half, ending at Whitsunday 1716. From thence however till Martinmas 1720, soon after which the late marquis died in January 1721, the rents and profits of the allocated lands were received on his own account. And in the rental delivered to Henderson the factor after Martinmas 1716, signed by the late marquis, the allocated lands were again inserted, the profits to be received for the use of the marquis.
The marquis afterwards wrote a letter to Henderson the factor, which the appellants state to have been written from London, the 14th of February 1717, and received by Henderson some time in the same month or in March thereafter, but which the respondent states to have been without date; this letter taking notice that his son had drawn bills on Henderson for 250 l., discharged Henderson from accepting or paying them. And after the death of the marquis, there was found in his cabinet a deed, bearing date the 12th of May 1718, reciting the said deed of allocation, and that the marquis had formerly by letters to his factors and chamberlains recalled and stopt the precepts which he had given for payment of the said allocation, and he not only ratified what he had so done, but did thereby revoke the said settlement, and any other settlement or allocation granted to the respondent and declared the same void and null. With regard to this revocation, it was sworn by Henderson the factor, that the last time, the late marquis was in Scotland, he told Henderson, that he had made a written revocation of the allocation, and that a paper which he held in his hand was the revocation, though it was not then read to, or by Henderson.
Page: 419↓
The late marquis by his last will and testament left his personal estate subject to the payment of his debts contracted since the settlement of his real estate in 1690, for which the respondent was not bound, to the Marchioness Dowager, his second lady, whom he named executrix, in trust for his children of that marriage, (which Marchioness Dowager and her children are the appellants in this cause.) This was all the provision which these two sons had from their father, and which, after deducting the debts affecting the same, amounted to a very moderate sum. This will was proved in Doctors Commons, after a caveat and contest on the part of the respondent, and he in the mean time confirmed himself executor to his father in Scotland, and took possession of the personal estate in that country.
The appellants having brought an action against him to denude him of the executry, he commenced a process before the Commissary Court of Edinburgh, concluding that he should be found a creditor upon the personal estate for the yearly value of the lands which had been allocated to him, for the year 1716, and thereafter till the day of his father's death. The commissaries on the 4th of December 1721, “found that the allocation was not recalled by any writ under the marquis's hand, and decreed cognitionis causa, conform to the libel.” And on the 23d of January thereafter the commissaries “repelled the defence founded on the revocation 12th May 1718, in respect of the latency of that deed, during the late marquis's lifetime, whereby the respondent could not apply for a legal modification in place of the allocation.”
The appellants brought a bill of advocation before the Court of Session, and their Lordships on the 17th of July 1722, “found that the allocation by the late marquis in favour of the respondent was revocable only by a deed under the deceased marquis's hand; and that neither the putting the allocate lands in the rentals given to Mr. Henderson, and his accounting to the late marquis for the same, nor the letter to the said Henderson, were sufficient to infer a revocation, and that the deed of revocation lying in the late marquis's cabinet, at his decease, without publication or intimation, cannot take effect from the date thereof; and that the late marquis's saying to Henderson he had made a revocation, which he said he then held in his hand, but did not read to Henderson, nor allow him to read, (as mentioned in Henderson's oath,) was not sufficient to interrupt the respondent's right to the rents of his locality.”
Entered, 12 Oct. 1722.
The appeal was brought from “a decree of the Lords of Session of the 17th of July 1722.”
Heads of the Appellants' Argument.
The allocation was, by the express words of it, revocable at pleasure; and whatever motives it was founded on, it was granted and accepted on that condition on which alone it could subsist. Nor in fact was there any onerous consideration for it; the late Marquis having made other distinct concessions to the respondent,
Page: 420↓
The power of revocation plainly extended to the aliment itself, and not to a power only of altering the lands out of which it was to be levied, as was contended by the respondent: and the warrandice cannot alter the case, but must follow the nature of the deed. Nor could there be any reason for a declarator in this case, which would have been necessary only if the respondent had fallen from the aliment by any penal irritancy.
The rentals for the year 1716, and subsequent years, all signed by the late marquis, whereby the rents of the allocate lands are directed to be received and applied to the marquis's use, and the late marquis's letter to Henderson forbidding him to pay the respondent's bills, are a sufficient revocation of the allocation. In the worst view, it was revoked by the deed of May 1718; and there was no occasion for publishing such revocation, or giving notice of it to the respondent. But the respondent had sufficient notice thereof, by having the payment of his bills stopt, after which he never drew sixpence out of the estate, nor ever attempted it: which also shews the respondent's opinion of and acquiescence in the revocation.
The late marquis considered the allocation as fully revoked, as is evident in this, that his personal estate is the only subject he appropriates for the provision of his younger children, which he must have known to be ineffectual, if the arrears of this aliment, or any part thereof, were a burden on this subject; and he would doubtless in that case have exercised the power he had by the settlement of providing for the younger children out of his real estate.
Heads of the Respondent's Argument.
By the deed of 1715, the power of revocation is confined to be by writ, that is a deed, under the grantor's hand; and could not be revoked by implication. Though the late marquis's receiving the rents to his own use should amount to an implied revocation, it will be of no force in this case, as not answering the proviso in the deed.
Nor will the letter written to the factor, forbidding him to answer his son's bills out of his effects, amount to a revocation: for as this letter is without date, so it does not mention the respondent's name; and the late marquis had at that time another son of age, and the prohibition is only not to pay the bills out of his effects, that is, the grantor's, but did not relate to the rents belonging to the respondent. Besides, the factor being examined upon oath, swears, that he never had any missive letters or written orders, recalling the said allocation, or stopping payment thereof to the
Page: 421↓
The deed of revocation, now set up, was never published or heard of, nor any notice given thereof to the respondent, till after he had commenced his action; and it is acknowledged to have been found in the late marquis's strong box or scrutoir after his death, and therefore was an incomplete deed of no force, never delivered or executed so as to take effect.
The warrandice in the said deed of 1715 against the acts or deeds of the late marquis, shews plainly that the intention of the said power of revocation was only as to an allocation or commutation of the lands out of which the aliment issued, but not to revoke the aliment itself; for in that case the warrandice would take place, which is the last covenant in the deed, and consequently will controul whatever goes before it, and either does or seems to contradict it. And besides this, by the law of Scotland every proprietor of an estate, much more a nobleman, is obliged to aliment his eldest son, suitably to his estate and quality.
Judgment, 21 Dec. 1722.
After hearing counsel, It is ordered and adjudged, that so much of the said interlocutor complained of in the said appeal, whereby the Lords of Session found “ the allocation by the late Marquis of Annandale in favour of the respondent was revocable only by a deed under the deceased marquis's hand; and that neither the putting the allocate lands in the rentals given to Mr. Henderson, and his accounting to the late marquis or his commissioners for the same; nor the letter to the said Henderson were sufficient to infer a revocation, be affirmed: And it is further ordered and adjudged, that the rest of the said interlocutor be reversed; and it is hereby further declared and adjudged, that the said deed of revocation bearing date the 12 th day of May 1718 do take place from the date.
Counsel: For Appellants,
Rob. Raymond.
Ro. Dundas.
For Respondent,
Dun. Forbes.
Will. Hamilton.