United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

Page: 285↓

(1814) 2 Dow 285

REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS.

During the Session, 1813–14.

53 Geo. III.

SCOTLAND.

APPEAL FROM THE COURT OF SESSION.

No. 18

Henderson and Brown Appellants

v.

Sir John Malcolm Respondent

May 18, 1814.

BENTAIL. — RES JUDICATA.

Lease for 99 years falls under the prohibition against alienation in a strict entail. Points of form. Remit for review in Macdonell v. Macdonald, 66 ante, ought not to have been made.

Balbedie entail.

Leases for 99 years.

The Respondent's father held the estate of Balbedie under a strict entail executed in 1725, with prohibition against alienation, &c. In 1754 he

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granted to his second wife, by virtue of a reserved power to that effect in the entail, a life-rent locality over one of the farms of the estate called Craigend. In 1773 she granted a lease of the locality lands during her life to James Malcolm, Respondent's elder brother, and her husband's son by his first marriage, who succeeded his father as heir of entail. James Malcolm agreed with one Henderson, who was represented by the Appellants, for three leases to the latter, comprehending the farm of Craigend, and the whole estate, except the mansion house, garden, and some small enclosures in the neighbourhood, for 99 years, at low rents and grassums.

Action to reduce the leases, and grounds of it.

In consequence of Henderson's neglect to perform conditions, actions were raised to compel him to execute regular leases, which was done. In 1797 James Malcolm died, leaving his step-mother surviving. The Respondent succeeded to the estate as heir of entail, and he, or rather his creditors in his name, raised an action to reduce the leases upon three grounds, as stated in the summons. 1st, The length of time. 2d, Facility and weakness in James Malcolm, and enormous lesion. 3d, (Applicable only to Craigend,) James Malcolm being in possession only as lessee of his step-mother, and not as proprietor, could give no possession to his sublessee; and the lease not having been clothed with possession in the life-time of the grantor, was void as against the Respondent, a singular successor.

June 1, 1804, Lord Ordinary's interlocutor, which formed the foundation of a question as to a point of form.

May 14, 1806, remit to the Lord Ordinary to hear parties as to the ground of duration.

May 17, 18, 1807.

The Lord Ordinary, by interlocutor, May 16, 1804, ordered Respondent to say whether he insisted on the ground of facility and lesion, and if he did, to give in a condescendance. But his

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creditors, confident of success on the third ground, applicable to Craigend only, and as success so far would afford them the full means of satisfying their debts, refused to give in the condescendance, and Respondent was from poverty unable to do so. The Lord Ordinary, by interlocutor, June, 1804, reduced the lease of Craigend on the third ground, “but in respect the Pursuer has not lodged a condescendance, in terms of the last interlocutor, of facility and lesion,” assoilzied the Defenders from the conclusions of the action quoad the other leases. The Respondent had not the means of representing or reclaiming against this interlocutor within the time limited by the rules of Court; but a petition having been presented by the now Appellants against the first branch of the interlocutor reducing the lease of Craigend, the Court, after answers, remitted to the Lord Ordinary to hear parties on the ground of duration, and other points of the cause, and the Lord Ordinary ordered informations to the Court accordingly. The Appellants pleaded, that the interlocutor of the Lord Ordinary, assoilzieing them from the conclusions of the action as to all the leases except that of Craigend, had become final, and that the general question as to the powers of the lessor under the entail must be considered as a res judicata. The Court repelled the res judicata plea, and reduced all the leases on the ground of long duration. The Appellants appealed from these interlocutors of the Court, and Respondent lodged a cross appeal against the latter part of the Lord Ordinary's interlocutor, June 1, 1804.

In answer to the plea of res judicata, it was

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contended,—1st, That the Lord Ordinary's interlocutor had become final only as to the ground there stated,—viz. facility and lesion; and that the remit as to a distinct ground,—that of duration,—was competent and proper. 2d, Suppose the Court of Session ought to have listened to the objection, then the Lord Ordinary's interlocutor must be considered a final decree, against which Respondent had appealed; so that the question was open to their Lordships.

Nidpath and Roxburghe entails, ante 90. 149.

Macdonell v. Macdonald, 66 ante.

The Lord Chancellor considered the general question as to the powers of the heir of entail to make a lease of this duration as settled by the decision in the Queensberry case, ( vide ante, 90.) The only question here was as to the point of form, and particular caution was requisite in interfering with the notions of the Court below on such points. The House had, in the early part of this session, remitted interlocutors of the Court below for review as to a remit made by that Court to the Lord Advocate in a case of assault. From information, which he had since received, he was now satisfied that he ought never to have consented to that remit.

Judgment.

Judgment affirmed.

Solicitors: Agent for Appellant,———.

Agent for Respondent, Chalmer.

1814