United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

Page: 790↓

(1773) 6 Paton 790

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

No. 143

[Fac. Coll., Vol. iv., p. 313; et Mor., p. 7847.]

Alexander Livingston, Esq., Appellant

v.

James Warrock, Respondent

House of Lords, 29th April 1773.

Subject_Entail — Jus Tertii. —

In the entail of the estate of Westquarter, the question was, Whether James Livingston could sell the estate, under the following destination of the entail, “to and in favour of the said Countess, and James, Earl of Findlater, her husband, and longest liver of them two, for the Earl, his liferent use allenarly, and to James Livingston and the heirs male of his body, whom failing, to his heirs male whatsoever?” James Livingston was, by express clause, prohibited from selling; and in a former appeal it was found he could not sell ( vide ante vol. II., p. 108.) This was a part of the estate which, from the state of the title, it was thought he could sell; and it having been sold, the next heir after his death brought a reduction. Held, that where the title of two parties is derived from one author, neither party can object to the right of the common author.

The Countoss Dowager of Callender was married a second time to Sir James Livingston, and afterwards to the Earl of Findlater.

By the former marriage, she was settled in the liferent of Sir James' estate of Westquarter, remainder to the heirs of the marriage.

There were no heirs of the marriage; and, on Sir James' death, Lady Newton succeeded to the estate of Westquarter, and she and her husband conveyed the same to the Countess, now married to the Earl of Findlater.

The Countess then, 1705, with consent of her husband, executed an entail of the estate, “to and in favour of the said Countess and James, Earl of Findlater, her husband, and longest liver of them two, for the Earl, his liferent use allenarly; and to James Livingston, third son of Alexander Livingston of Bedlormie, and the heirs male procreate or to be procreate of his body; which failing, to his other heirs male whatsoever, which failing, to such person or persons as the Countess should nominate and appoint, by a writ under her hand at any time during her life.”

After the Countess' death, charter and infeftment was obtained, proceeding on the deed of entail.

Page: 791↓

James Livingston's father devised a scheme, which had for its object the defeating of the entail and the sale of the estate; and, accordingly, part of this estate was sold to a Mr Henderson, and by him to the respondent.

The appellant's uncle then brought an action to set aside the sale, on the ground that James Livingston was barred from selling these lands, as they were settled in strict entail by the deed of entail executed by the Countess as above set forth. This action was, after his uncle's death, carried on by the appellant.

In defence, the respondent pleaded, 1st, That the lands conveyed to Andrew Henderson were not comprehended under the entail, neither could they, as they never belonged to the Countess, to whom the pursuer had served, but were a fee simple estate in the person of James Livingston, and might be sold by him at pleasure. 2d, As both parties derived right from the same author, the appellant could not be heard to object to the right of the common author.

Nov. 18, 1772.

The Court, after much discussion, pronounced this interlocutor:—

“Sustain the defence, assoilzie the defender, and decern.” ^*

_________________ Footnote _________________

* Opinions of the judges:—

Lord Coalston.—“Both parties derive right from Lady Callender. Neither of them can object to the author's right. Had the objection been made by the heirs male, it would have been good; but then the defence of prescription would have been good. The party here cannot plead in the right of the heir male, without being liable to the same defence as he would have been. If the defender may object to Lady Callender's right, by parity of reason, he may object to a progress of 1000 years.”

Lord Monboddo.—“If a person is in the course of usucapion, he may maintain his right against every one who is not verus dominus; it is, therefore, material to inquire into the right of Sir James Livingston and Lady Newton. If the fact is true, that the lands are not in the charter of adjudication, then the pursuer has not proved that he is the verus dominus, and the subject is still in hæreditate jacente of James Livingston.”

Lord Auciienleck.—“It is not competent for the defender to say that James Livingston had no right himself, and, therefore, could not sell to me. How can he dispute the right of the person from whom he himself derives right?”

Lord President.—“I always understood it to be a fixed rule that no one can object to his author's right.”— Hailes, vol. i., p. 230.

Page: 792↓

After hearing counsel,

It was ordered and adjudged that the interlocutors complained of be, and the same are hereby affirmed.

Counsel: For the Appellant, E. Thurlow, Ja. Montgomery.
For the Respondent, Al. Wedderburn, A. Crosbie.

1773