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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Syme, W.S., for himself, and as Trustee for the Creditors of John Ranaldson of Blairhall v. Sir William Erskine of Tory, Bart., eldest son of the late Sir William Erskine of Tory, Bart., and Sir Wm. Forbes, Bart., and Alex. Forbes, Esq., second son of the late David Forbes, W.S., and Others, his Trustees [1803] UKHL 4_Paton_510 (22 July 1803)
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Cite as: [1803] UKHL 4_Paton_510
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SCOTTISH_HoL_JURY_COURT
Page: 510↓
(1803) 4 Paton 510
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND, FROM 1753 TO 1813.
[M. App. Superior and Vassal, No. 3]
No. 66
v.
House of Lords,
Subject_Superior and Vassal — Warrandice — Damages — Penal Action. —
A superior and his agent gave a vassal an entry, after the superior had divested himself, by a sale of the superiority, to another superior. The consequence of this was, that a title made up as of fee to an entailed estate, was disappointed and rendered invalid. In an action of relief and damages raised, after the death both of the superior and his agent, brought against their heirs and representatives, Held that an action, penal in its nature, did not transmit against heirs, and that, besides, here the entry so taken, was devised to defeat the entail, and therefore versans in illicito.
John Banaldson inherited certain estates descending to him by entail, namely, Blairhall, and the lands of Longleys and Westerbroom, purchased by his father from Doctor Erskine, who retained the superiority.
He had made up titles to Blairhall under the entail, but not to those of Longleys and Westerbroom, having in view to claim the fee of these lands, although the entail included them.
1786 and 1789.
In consequence of his father's debts, and his own, he was obliged to execute a trust deed in favour of the appellant, for behoof of his creditors, conveying the rents of the estate of Blairhall, and the fee of the lands of Longleys and Westerbroom. This deed was acceded to by most of his creditors, and in particular, by the appellant and by John Ranaldson's mother, and Mrs. Ann Ranaldson Dickson, and his other sisters, who were next heir substitutes of entail.
The appellant, as trustee, then proceeded to complete his title under the trust-deed. In doing so, it was necessary to apply to the superior for a precept of dare in favour of John Ranaldson as to these lands. This was done by applying to the late David Forbes, agent to the late Sir William Erskine, the superior, in the following manner.
Page: 511↓
“J. Syme presents compliments to Mr. Forbes, he will be so good as make out a precept of clare constat in favour of Mr. Ranaldson as soon as possible.—Windmill Street, Friday.”
Mr. Forbes, without stating that his client had, some time ago, sold the superiority of these lands to Mr. Mutter, and, consequently, could not grant such, immediately prepared a scroll of a precept, which was marked by him on the 28th of Sept. The precept itself was signed by Sir William Erskine, as superior, on 22d October 1789, and this having been notified by Mr. Forbes to the appellant, Mr. Syme wrote in the following terms:
“Mr. Syme presents compliments to Mr. Forbes, and begs he will give the bearer the precept of dare constat in favour of Mr. Ranaldson, with the disposition and infeftment in favour of his father. J. S. begs leave to send by the bearer the fees. Mr. Forbes will please send a receipt for the feu duty.—27th October 1789.”
Mr. Forbes answered:
“Mr. Forbes returns compliments to Mr. Syme, whose card he has just now received. Giving up the precept infers discharge of the feu duty, but Mr, Syme should have shown that preceding 1787 it has been paid, and therefore he will please send for the discharges of them; or write to Mr. William Gulland, Sir William Erskine's factor at Tory, to know if the feu-duties preceding the 1787 have been paid.—28th October.”
After further correspondence, and upon payment of the years' feu-duty, from 1788 to 1789, and the fees for the precept of dare; the precept was delivered over, and an infeftment was taken upon it in favour of Mr. Ranaldson. He died in 1796, having the year before granted a disposition of his whole heritable and moveable property, including the lands in question, to the appellant, in trust for his creditors. On this trust, he proceeded to sell these lands, at the sale of which the blunder was discovered, that they had taken a title from the wrong superior; whereupon the next heir of entail, Miss Ann Ranaldson interfered, and raised an action of reduction, and succeeded in reducing the title, which, but for the blunder, she could not have done, because John Ranaldson, as disponee in the entail, was entitled to take up the estate as in fee.
After both Sir William Erskine's and Mr. Forbes' death, the present action of relief was then raised against Sir William Erskine, as representing his father, and his agent's representatives, to indemnify for the loss thus occasioned.
Page: 512↓
In defence, it was pleaded, 1st. That the precept of clare constat neither gave nor implied any warranty that the granter was truly the superior; 2d. That the appellant had himself to blame for the mistake, which his application to Mr. Forbes, and his conduct in the business occasioned; 3dly. That as it originated in a fraudulent scheme of the late Mr. Ranaldson, to defeat his father's entail, in which the appellant, as the agent of that gentleman, and to serve his own private views, participated, they could not be suffered to make the defeat of that scheme, whether from accident or negligence, a ground of an action of damages. 4th. That as Mr. Ranaldson could have qualified no damage, because, if he had succeeded obtaining a good title, which a purchaser might have relied on, and had sold the property, he must still have been answerable for the full amount, at least to the heirs of entail, in defraud of whom he acted. And, lastly, that actions penal in their nature do not transmit against heirs. The Court allowed a proof of the circumstances.
It was proved that David Forbes, as the superior's agent, had revised the disposition and sale of the superiority to Mutter in his own hand writing, in June 1788; that it was engrossed in the chartulary, five pages distant from the precept of dare constat—that he had taken a bond for the price of the superiority lands, and that a settlement of accounts between David Forbes and his client had taken place, in which the transactions were set forth.
Mar. 11, 1800.
Jan. 21, and June 16, 1801.
The Lord Ordinary pronounced this interlocutor, “Having considered the mutual memorials for the parties, assoilzies the defenders simpliciter, and decerns, supersedes extract till the third sederunt day in May next, and dispenses with representation.” On two reclaiming petitions the Court adhered. *
_________________ Footnote _________________
*
Lord President Campbell said,—“This is a question arising from a wrong superior giving an entry, and the investiture being thereby null; and, consequently, whether he and his doer are liable in damages on that account? There appears to me to be strong reasons for sustaining such a claim, unless, in this case, the pursuer can be met by a personal exception, as versans in illicito; for he was acting wrongfully in making up such a title contrary to the entail, and thereby involving his constituent, Mr. John Ranaldson, in an irritancy. It, no doubt, was for the interest of the creditors that a title in fee simple should he made up, or at least that their debts should attach upon the estate. It is a question if this would have
Page: 513↓
Against these interlocutors the present appeal was brought to the House of Lords.
Pleaded for the Appellant.—If Sir William Erskine had been superior of the lands of Longleys and Westerbroom, at the time he granted the precept of
clare by the advice of his agent, Mr. Forbes, it is quite clear that the appellant, and other creditors of Mr. Ranaldson, who had acceded to the trust deeds granted by him, on the faith of his making up a title to the lands in fee simple, might have sold these lands, and applied the price towards extinction of the debts, without possibility of challenge from the heirs of entail; because it is a settled point, that when the substitute of an entail makes up his titles, referring to the different restrictions of it, but without narrating them
verbatim, the entail is ineffectual against creditors. Or if the superior even had refused to grant a precept of
clare constat, the right of the appellant and other creditors might have been completed otherwise, by charging John Ranaldson to enter heir to his father; but the appellant was prevented from having recourse
_________________ Footnote _________________ happened if a feudal title had been made up under the entail, while the tailzie was unrecorded; or if adjudication had then been led against him upon a charge to enter. Case of Ross of Thurso.
Vide case of
Lady Glencairn v. Graham of Gartmore, 23d May 1800, M. App. No. 1, “Heir apparent.” Andrew Ranaldson died 22nd October 1778. The tailzie was recorded 14th January 1779. John was the institute in the entail. He passed a charter upon the procuratory, 6th August 1781, and was infeft 19th June 1784. Besides, I doubt if a penal action can transmit against the heirs.
Vide
Tod v. Thomson, 21st Dec. 1793. (Unreported.) This latter case was an action of damages brought against the heir of a notary who had given an erroneous notarial intimation, thirty nine years before, whereby the assignation was rendered useless, to the effect of giving a preference in competition with creditors. The Lord Ordinary found the heir liable in damages. But, on reclaiming petition to the Court, the Lords were much divided on the subject, and the case was finally compromised.”
Page: 514↓
B. iii. tit. 5, § 26.
Pleaded for the Respondents.—The granter of a precept of dare constat comes under no engagement to warrant its efficacy, express or implied. It generally bears to be granted salvo jure cujuslibet, and, at any rate, that is understood. The nature and course of the proceeding demonstrate that this must be the case. And it is always granted on application of the vassal, on such evidence as he may tender, and as a matter of favour, and to save him the circuitous mode and expense of a special service. It is also granted periculo petentis. Lord Stair says:—
“Infeftment being passed on such a precept, giveth the party the real right of the lands, if done by the right superior. It will not be sufficient title as to the real right of the ground against any other party than those who acknowledge the giver thereof to be the superior, and the receiver to be heir. For if, upon any other colourable title, they question any of these, the infeftment and precept of dare constat will not be sufficient alone, unless it have obtained the benefit of a possessory judgment or prescription.”
From this doctrine, it follows, that the vassal or receiver of such a precept, was always bound at all times to show that the granter was the true superior. The appellant therefore was to blame in the matter, for not satisfying himself. Being employed to make up the title, he ought to have inquired into the right superior. He never put the question to Mr. Forbes. All that he seemed anxious for, was to get the precept of dare in a great hurry, in order to cut out the heirs of entail from claiming the lands in question. Looking, therefore, to this circumstance, and to this hurry, and to the fact that Mr. David Forbes was then eighty-two years of age, at which some want of recollection is allowable,
Page: 515↓
After hearing counsel, it was
Ordered and adjudged that the appeal be dismissed, and that the interlocutors therein complained of be, and the same are hereby affirmed.
Counsel: For Appellant,
John Clerk,
David Douglas.
For Respondents,
C. Hope,
Wm. Adam.