United Kingdom House of Lords Decisions

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Cite as: [1820] UKHL 6_Paton_615

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SCOTTISH_HoL_JURY_COURT

Page: 615↓

(1820) 6 Paton 615

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

No. 102

Richard Hotchkis, W.S., and James Tytler, W.S., Trustees of the deceased Colonel William Dickson of Kilbucho, Appellants

v.

John dickson, Esq., Advocate, of Kilbucho, Respondent

House of Lords, 19th July 1820.

Subject_Reduction of Deed — Erasure. —

Held, that a deed of entail had not been executed under the influence of fraud or compulsion, but voluntary on the part of the maker, and was, therefore, not reducible.

A reduction was brought by the appellants against the respondent, whereby they sought to set aside a certain deed of entail, which they alleged had been executed, not in terms of the entailer's intention, but through the fraud of the respondent, his brother, now possessing the estate, whereby their constituent's right in the said estate of Kilbucho had been limited to a liferent instead of giving him absolute powers over his own estate.

Nov. 16, 1813.

The Lord Ordinary pronounced this interlocutor “In respect, 1st, That it does appear that the execution of the deed of entail 1809, was, under all circumstances, a

Page: 616↓

measure highly proper, prudent, and expedient on the part of the pursuers' constituent; 2d, That it is admitted by the pursuers, that he voluntarily executed the said entail, and had power to do so; and that there does not appear, from the terms of the deed itself, or any other collateral circumstances, any foundation for the allegation that the pursuers' constituent was improperly or fraudulently induced to execute such deed, and that the present proceedings seem to arise rather from a change of mind on the part of the pursuers, than the discovery of any facts attending the execution of the entail 1809. Therefore, refuses the desire of the representation, and adheres to the interlocutor reclaimed against.”

June 2 and 28, 1814.

On reclaiming petition the Court adhered.

Against these interlocutors the present appeal was brought to the House of Lords.

After hearing counsel.

It was ordered and adjudged that the interlocutors complained of be, and the same are hereby affirmed, with £100 costs.

Counsel: For the Appellants, John Clerk, Geo. Cranstoun.
For the Respondent, Alex. Maconochie, Sir Saml. Romilly, John A. Murray.

Note.—In the House of Lords, the appellants pleaded much on the deed being void as vitiated in substantialibus. It bore to have been executed on the 24th of April 1809; but the word fourth was clearly written on an erazure, and, therefore, they contended that this objection was fatal to the validity of the deed, but this was disregarded.

1820

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