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Cite as: [1762] UKHL 2_Paton_66

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SCOTTISH_HoL_JURY_COURT

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(1762) 2 Paton 66

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.

[M. 15,196, Fac. Col. ii. p. 256.]

No. 20.

Captain James Frazer of Belladrum, Appellant

v.

His Majesty's Advocate, Respondent

House of Lords, 30th March 1762.

Subject_Lease — Duration — Powers.—

A lease was granted for 1140 years for a valuable consideration given, besides a yearly tack duty. Sasine and possession followed: Held, on the forfeiture of the estate, that the lease was good against the granter, and also against the crown, reversing the judgment of the Court of Session.

June 8, 1770.

Of this date, Hugh Lord Lovat granted a lease of the lands of Fingask to Simon Frazer for the period of twenty times nineteen years, or 1140 years, in which he was duly infeft. This lease was afterwards acquired by and assigned to the appellant.

Simon Lord Lovat succeeded to the title and estates of Lovat; and in 1747 was attainted for high treason, and his estates forfeited to the crown.

The appellant then, in right of the lease, made a claim against the crown, to be allowed the possession under the lease, on payment of the stipulated rent. But his Majesty's Advocate objected to the lease, on the ground, 1 st, That a lease of lands, for so long a term as 1140 years, was an anomalous right, unknown in the law of Scotland, and therefore invalid; 2 d, Besides, even supposing it good, Hugh Lord

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Lovat had no power to make an effectual lease in 1670, because he was divested of the lands at that time, he having in 1665, conveyed the fee to his daughter; 3 d, That supposing the lease good against the granter and his heirs, yet it did not follow that it could be binding on the late Lord Lovat (the forfeiting Lord), because he acquired the estate not by descent, but by singular title. He had acquired the estate by apprisings and adjudications led for debt. Answer, 1 st, That the lease was a fair purchase, obtained without fraud, and for a valuable consideration besides an adequate rent and tack-duty; and possession had followed upon it from its date to the present time; and therefore, supposing it originally defective, it was now placed beyond all question by the positive prescription; and every ground of challenge barred by the negative prescription. That there was no law or usage limiting leases to any certain number of years. That here infeftment and possession had followed; and this made it good not only against the granter and his heirs, but also against purchasers or singular successors; 2 d, That although the base fee at the date of the lease, was conveyed by the granter to his daughter, yet in him there still remained the dominium directum; and that base, or subaltern infeftment, was afterwards evacuated by the subsequent existence of a son, who was entitled to redeem the estate from the daughter; 3 d, That the late Lord Lovat, no doubt, had entered into possession upon an apprising, but he was no less liable, as representing his father the lessor, and as taking from him.

Jan. 14, 1758.

Of this date, the Court found the tack not good against “Simon, late Lord Lovat, the forfeiting person, nor is now against the crown, as coming in his place, and therefore dismisses the claim.”

Feb. 3, 1759.

Dec. 6, 1759.

On reclaiming petition, the Court adhered in so far as it reclaims against two interlocutors, finding the tack not good against the Crown. But remitted to hear how far it is competent to sustain the tack for 19 years. Memorials were given in on this point; but the Crown having appeared and consented to the tacking being sustained for 19 years, the Court declared accordingly.

Against these interlocutors the present appeal was brought.

After hearing counsel, it was

Ordered and adjudged, that so much of the said interlocutor of the 14th of January 1758, as finds the tack in question was not good against Simon late lord Lovat

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the forfeiting person, nor is now against the crown as coming in his place, and dismisses the claim; as also the said interlocutors of the 22d of December 1758, and the 3d February and 6th of December 1759, complained of be, and the same are hereby reversed, and that the said appellant's claim be sustained.

Counsel: For Appellant, Alex. Lockhart, Wm. Johnstone.
For Respondent, C. Yorke, Thomas Miller.

1762

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