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SCOTTISH_HoL_JURY_COURT

Page: 539↓

(1725) Robertson 539

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 124.

Sir Alexander Maxwell of Monreith, Bart. Appellant

v.

Andrew Houston, Esq. Respondent

Et e contra.

30th April 1725.

Subject_Vitiation. —

Dalrymple, 28 Jan. 1715.

An objection to a deed that it was erazed in substantialibus is repelled.

Subject_Vitious Intromission and Gestio pro Hærede. —

A person grants an entail of his estate to his son, and his heirs male whatsoever; with the burden of his debts; the son grants a back bond, in consideration of said entail to pay the father's debts: after the death of the father and son, the daughters convey the estate real and personal of their father to a creditor, without making up titles by inventory or confirmation; and the creditor grants bond to protect them against what they had done, and from the debts of their father; the heir male of entail having got back the estate sues the said creditor for debts of the father as a vitious intrometter, in which he obtains decree; and the Court also find the moveable debts due to such intrometter to be extinguished: but their judgment is reversed 5 and the creditor is ordered to account for actual intromissions only.

William Houston of Cultreoch on the 17th of January 1691, made a settlement and entail of his estate to himself in life-rent, and to William his son, and his heirs male whatsoever,

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with the burden of payment of the grantor's debts: and at the same time William the son executed a bond whereby he became personally bound to relieve his father of certain debts he had contracted before making the entail. William the father dying in February 1709, leaving his said son and four daughters; and the son dying in March thereafter without issue, the estate by said entail descended to the father of the respondent the brother of William Maxwell the elder; and the respondent's father in July 1709, was duly served heir of provision in the said estate, and after his death the respondent obtained a charter thereof, under the great seal upon which he was duly infeft.

The estate of Cultreoch being conveniently situated for the appellant's father, he had procured from William the father, and William the son a deed, dated 30th April, and 3d May 1708, whereby they became bound under a penalty of 2000 l. Scots, to prefer Sir William Maxwell to any other purchaser in case they should sell these lands; and soon after the death of the two Williams, father and son, the appellant's father brought an action against the daughters, on the ground of the said deed, and of certain debts secured on the estate which he had purchased: two of the daughters who were married, and their husbands, and two who were single, disponed and conveyed to the appellant (his father being then dead,) the whole real and personal estate of their father and brother, for the consideration of a small sum: and the appellant granted them an obligation to indemnify the daughters and their husbands against all debts owing by the father and brother, and all actions that might be brought against them on that account; these deeds were dated in April and May 1709.

The appellant thereupon took possession of the charter chest of the family, and carried the same to his own house, having broken the seals put on it by the proper judge; and he also possessed himself of the whole estate real and personal; and having possessed the personal estate for several months without confirmation, he afterwards to guard himself against any bad consequences therefrom, procured himself to be confirmed executor, and got the confirmation to be antedated several months.

In the mean time the respondent having made up a title by service, charter and sasine, the appellant brought an action against him for payment of certain debts to which he had acquired right, and which were secured upon the estate; and the respondent thereupon commenced his counter action concluding that it should be declared, that the daughters as vitious intrometters, and having behaved as heirs to their father, and Sir Alexander Maxwell, as representing them, were bound to pay all the father's debts; and that the debts in the person of Sir Alexander were thereby extinguished.

Appealed from by Sir Alexander.

The appellant appeared, and stated in defence to this action, that there was a manifest erazure in the deed 1691, under which the respondent claimed, for which he insisted the deed, was invalid; in the clause settling the estate upon William the father in

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life-rent, and William the son and his heirs male whatsoever as it stood in the deed, after the words heirs male, there was a plain erazure of two or three words, and thereon was written the word whatsoever: The Court on the 20th of June 1711, “sustained the deed of settlement, and repelled the objection founded on the alleged vitiation thereof.” And to this interlocutor they adhered on the 10th and 17th of July thereafter.

Ditto ditto.

The respondent then insisted on the vitious intromission by the heirs general, whom the appellant was bound to indemnify; and the appellant having dated his defence, that he had obtained confirmation before commencement of the action against; him, as sufficient to defend him from the effects of vitious intromission; the respondent answered that not only the confirmation was antedated, but that the appellant had intromitted with more than he had given up in the inventory. The Court on the 13th of December 1711, “sustained the appellant's defence as relevant; and allowed both the appellant and respondent a proof of the several facts alleged by them and, after various proceedings, this interlocutor was adhered to on the 13th of February 1713.

The appellant now presented a petition to the Court praying that the sheriff depute, and justice of the peace who inspected the charter chest, when it was sealed up at the desire of the daughters upon the death of William the son might be examined as to what writings they saw; and also that the Court would allow a probation of William the father's, and William the son's circumstances at the times of their death; and that certain creditors, to whom the appellant alleged his father had paid their debts, by the directions of William the father, might be examined as to the reality of their debts, and the payments so made to them, by which it might appear how far the appellant was a just creditor for the sums claimed by him. The respondent in his answers acknowledged that some of the debts had been truly owing, but he insisted upon the ground of law, that the whole debts were extinguished by coming into the person of one who was obliged to pay them. The Court on the 25th of February 1713, “refused the desire of the petition as to proving Cultreoch's circumstances, or taking the oaths of the petitioner's cedents; but allowed a conjunct probation to both parties for proving what papers were in the charter chest.”

The objection made to the confirmation by the respondent, was, that though signed in October 1710, it bore date the 13th of July 1709, being the date of the decree dative: the appellant offered to prove that such was the common practice of the Court which granted the confirmation; but the Court on the 29th of July 1713, “refused the desire of this petition.”

Witnesses having been examined, the cause was heard, and the Court on the 9th of December 1714, “found that Sir Alexander Maxwell by his bond of relief to the heirs of line is in the same situation as to the debts of Cultreoch, paid and transacted by him, as the said heirs of line would have been, if they had paid and

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had transacted the said debts:” and to this interlocutor the Court adhered on the 12th of January 1715. On the 21st of same month, the Court pronounced the following interlocutor:

“having again considered the state of the process, and advised the same with the testimonies of the witnesses adduced, and writs produced for probation, with the debate, and petition given in by Sir Alexander Maxwell, and answers thereto by Andrew Houston, find the defence of extinction of heritable debts in the person of a vitious intrometter not relevant to be alleged by an heir male; but sustain the defence of extinction of moveable debts paid by a vitious intrometter: and find the qualifications of vitious intromission against Sir Alexander Maxwell, relevant and proved: and likewise find the qualifications of the passive title of Behaviour as heir, relevant and proved against the heirs of line: and find that Andrew Houston now the heir male, is not obliged to relieve the heirs of line, by the quality of the disposition granted by Cultreoch elder to his son and heirs male; and the bond granted by Cultreoch younger obliging him, his heirs, executors, and successors to relieve his father of all debts.”

And to different parts of this interlocutor the Court adhered on the 12th of July and 9th of November 1716.

After a further hearing of the cause, however, the Court on the 12th of July 1717, “found that abstracting from the disposition by Cultreoch the elder to his son, and qualities thereof, there is no relief competent to the heirs of line, or to Sir Alexander Maxwell, as coming in their places against the heir male for any debts of Cultreoch's, paid by the said heirs of line, or by Sir Alexander himself: but having considered the disposition by Cultreoch elder to his son, and qualities thereof, found that the debts of Cultreoch elder, were burdens on the subject disponed by him to his son, and that Andrew Houston as heir male to the estate of Cultreoch, contained in the said disposition, in right and virtue of that disposition is obliged to relieve the said Sir Alexander and the heirs of line of all the said debts.” To this interlocutor the Court adhered on the 29th of November and 12th of December 1717; and on the 10th of June 1718 they “ordained Sir Alexander to give in a condescendance of the debts due by William the father at the time he made the entail.”

Appealed from by both.

Appealed from by Sir Alexander.

Afterwards on the 22d of January 1720, the Court “sustained the defence proponed for Andrew Houston, that Sir Alexander Maxwell had intrometted with the moveables which belonged to Cultreoch the elder, or to his son after their decease, relevant in tantum to extinguish the debts of the said Cultreoch, and his son in the person of Sir Alexander the intrometter to the extent and value of these moveables intrometted with; and also found that relief is not competent to Sir Alexander, against Andrew Houston, for any sums in new bonds granted after the date of the disposition by the said Cultreoch the elder to his son, though it were instructed that these new bonds

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were both innovations of old bonds, dated before the said disposition, and coming in place of these old bonds.”

Entered, 25 Nov. 1724.

The original appeal was brought from “several interlocutory sentences or decrees of the Lords of Session of the 20th of June, 10th and 17th of July, and 13th of December 1711, the 13th and 25th of February, and 29th of July 1713, the 9th of December 1714, the 12th and 21st of January 1715, the 12th of July and 9th of November 1716, the 12th of July, 29th of November and 12th of December 1717, the 10th of June 1718, and 22d of January 1720.”

Entered, 3 March 1724–5.

And the cross appeal from “part of the above mentioned interlocutor of the 12th of July 1717, and of an interlocutor of the 29th of November 1717.”

On the Original Appeal.—Heads of the Appellant's Argument.

The settlement, under which the respondent claims, is plainly erazed in the most material article, the very part on which the respondent's right depends. There might, and probably have been words in that space, which now stand obliterated, that would have defeated the respondents claim; and the respondent produced no manner of evidence that the deed stood so erazed at the time it was executed, or at any other time during the grantor's life, though surely he must have been supposed capable of making such proof had the fact been true; and by the deed as it stands erazed, the estate, on failure of heirs male, must have devolved on the crown in prejudice of the grantor's own daughters, and the issue female of his son, a settlement which no man in his senses can be supposed capable of having made.

Supposing this deed valid not withstanding the erazure, yet as it was dormant, and not published in the proper manner by registration, or infeftment, all the debts contracted by the grantor during his life were as much a charge upon the estate by the undoubted law of Scotland, as those contracted before the date of the settlement; and the making any distinction by cutting off the one kind, and allowing the other, is erroneous.

As this deed was dormant, the heirs at law might lawfully enter on the estate; and the appellant's purchase was honest and fair, the first offer of the estate having been intended him by the deceased, the undoubted proprietor: in these circumstances the entry of the heirs, and the appellant's purchasing could be attended with no penalty.

The heirs at law by intrometting with their father's estate, did not subject themselves universally to their father's debts, if it be true that the estate with which they intrometted, did not descend to them by reason of the settlement under which the respondent claims, because, by the law of Scotland, acting as heir is inferred only from a person's meddling with an estate to which he has an undoubted title to succeed. And as the heirs at law, whom the appellant was bound to indemnify, were not liable for the debts, so neither could the appellant in consequence of his bond, because that bond and the obligation therein contained

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became void, the moment the conveyance in consideration of which it was granted was set aside.

The appellant's intromission with the personal estate was innocent in virtue of a proper title, an assignment by the daughters, to whom the personal estate had formerly been assigned by their father; and they had also a legal title to it as nearest in kin; so that on the supposition that this personal estate is, in the first place, liable to answer the debts of the deceased, the appellant can be no further liable than to account for so much thereof as he received, in terms of the interlocutor 22d January 1720.

With regard to what the respondent founded upon the possession had by the appellant of the charter chest; the daughters, no other right appearing, had a title to the deeds; 2nd they being assigned to the appellant he might warrantably take them into his possession. The argument of the respondent goes only to this, that it is possible the debts now claimed by the appellant might have been paid off by the deceased in his lifetime, and that the bonds might have been locked up amongst his writings, and might have been taken from thence by the appellant, who might again have procured fresh assignments from the original creditors in his own name. But this suggestion must have been totally destroyed by the evidence which the appellant offered, had he been permitted to bring it, viz. the oaths of the creditors, and of the writers of, and witnesses to the several assignments; most of these debts too were secured by heritable bonds, and if these had been paid off, the discharges must have been recorded within 60 days, so that the taking away such discharges could have been of no use.

Heads of the Respondent's Argument.

By the known laws of Scotland, the heirs of line, or heirs general, who seize upon the personal estate of their predecessor without making an inventory of it, or who conceal a part of the estate, and make up imperfect inventories, which is called vitious intromission, are bound to pay all the debts of their predecessor: and such heirs general as intermeddle with the charter chest, or writings, or any part of the real estate of their predecessor, which is called behaving as heirs, are bound, to pay his whole debts real and personal, and to relieve the heir of entail of them. Nor can this burden upon the heirs general be restricted to the value of the estate they succeeded to, even though they entered with the usual solemnities, unless they have in a regular manner made up faithful inventories of the estate before intermeddling with it.

The erazure in the deed 1691, stated by the appellant, is no more than may commonly happen in every writing; nor is the deed vitiated in any substantial part of it. To shew how groundless the objection was, the respondent all along offered to allow any words to be supposed, that could be contained in that space, and were consistent with common sense, and the usual form of such writings: but none can be contrived that will give the appellant any advantage.

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The appellant did indeed get himself confirmed executor, but the confirmation was antedated several months, to give a colour to his defence on that head: and though the inventories were made up several months after the appellant had intrometted with the personal estate, yet he concealed part of the goods he had actually seized; which, by the law of Scotland, does unquestionably render him liable for the whole personal debts.

With regard to the proof offered by the appellant by the oaths of creditors, the respondent acknowledged that some of the debts were truly owing; but he contended that others were simulate, or had been paid and the bonds retired; and to examine persons upon oath to establish debts due to themselves would have been inconsistent. But the respondent rested upon this unquestionable ground of law, that the debts, whether true or not, were extinguished by coming into the person of the appellant, who was obliged to pay them.

Heads of the Appellant's Argument—On the Cross Appeal.

Though the personal bond of William the son be mentioned and recited in the deed of entail, yet it is by no means made a condition of the entail, nor inserted in the procuratory of resignation, or precept of sasine, without which, by the law of Scotland, it can never be a real burden on the estate.

By this personal bond William the son obliges himself, his heirs, executors, and successors, to pay the debts of his father, and by the known law of Scotland, the heirs general are in the first place obliged to perform this bond, and to relieve the heir male of it; which was known and understood by William the father when he accepted of the bond.

Even upon the footing of William the son's personal bond being a real burden on the estate, yet where William the father obtained a discharge of any debt due to him at the time of making the entail, that debt could be no longer a burden on the entailed estate, but must be considered as extinguished, and cannot afford a pretext for subjecting the heir of entail to new debts contracted after the date of the deed of settlement: and at all events such part of the estate as Sir Alexander intrometted with, should be applied towards payment of the debts of William the elder.

Heads of the Respondent's Argument.

The deed of settlement under which the appellant claims is made subject to the payment of the grantor's debts, and there seems to be no reason for the appellant to claim that estate, without performing the conditions of the deed under which he claims; that is, paying off the debts before that time owing by the grantor: and in equity he ought to relieve the heirs at law, and the respondent as claiming under them, of all the debts, both before and after the date of the conveyance, the estate being truly subject to them.

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Judgment, 30 April 1725.

After hearing counsel on both sides, and due consideration had of what was offered by them in these causes, It is ordered and adjudged, that the interlocutory sentences or decrees of the 20th of June, 10 th of July and 17 th of July 1711, be affirmed: and that all the other subsequent interlocutors complained of by the appellant Sir Alexander Maxwell be reversed; and that the cross appeal of the respondent Andrew Houston, Esquire, be dismissed; and that in the further proceedings in this cause, the Lords of Session do allow to the appellant Sir Alexander Maxwell all such debts as he shall make out a right to, and that he be answerable to the respondent for so much of the personal estate, and of the rents and profits of the real estate as shall be made out that he hath received; and if it be proved that the appellant Sir Alexander Maxwell hath abstracted or taken away any particular papers cut of the charter chest, the said Lords shall, for so doing, proceed against him as is just.

Counsel: For Sir Alexander Maxwell, Dun. Forbes. C. Talbot. Will Hamilton.
For Andrew Houston, C. Wearg. Will. Fraser.

Part of the judgment, here reversed, is stated in the Dictionary as an existing decision, vol. 2. Passive Title, p. 44.

It is also so stated by Lord Bankton, b. 3. tit. 9. § 16. and by Erskine, b. 3. tit. 9. § 55.

1725