United Kingdom House of Lords Decisions

The trustee did not pay the price into the Bank of England; nor did he ever produce evidence of the price having been applied in terms of the statute.

Sir William died, and burdened the entailed estate with certain provisions to his younger children, four of whom in 1819 petitioned the Court to have this balance applied in payment thereof, which was authorized, (leaving a very trifling balance still to be accounted for by the trustee), on the petitioners assigning their claims in trust for behoof of the heir of entail in possession of the estate of Stobs for the time.

The purchasers from Sir William entered into possession, and laid out large sums in ameliorations.

In 1822 Sir William Francis Eliott, Bart. of Stobs, eldest son of the deceased Sir William, raised an action of reduction against Wilson and Cleghorn, the purchasers, calling for production of the act and warrant of the Court authorizing the sale of the lands of Hallrule, Town o' Rule, and HallruIe Mill; the articles and conditions of roup, and minutes of roup; the dispositions granted by Sir William in favour of himself as purchaser, and all the subsequent titles; and concluding, that these deeds and writings should be reduced and declared to be null and void, and the pursuer restored thereagainst in integrum; and being so reduced, it should be found and declared, that the pursuer had the only good and undoubted right and title to the said lands, and to possess the same, and uplift the rents thereof; with conclusion of removal against the defenders, and those holding under them.

The Lord Ordinary, on the 10th June 1824, reduced, decerned, and declared in terms of the reductive conclusions of the libel. The Court, on advising a petition and answers, on the 23d June 1825, pronounced this interlocutor:

“Find, that the defenders cannot be hurt by any alleged fraud on the part of the late Sir William Eliott, in carrying through the sale under the authority of the Act of Parliament, or, as alleged, in deceiving the Court against the pursuer or other heirs of entail, if the sale, in other respects, had been regularly conducted in terms of the Act of Parliament; but find, lmo, That the original petition to the Court for authority to sell the lands in question did not, in terms of the Act.

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of 42. Geo. III. c. 116., set forth the amount of the land-tax proposed to be redeemed, and that the petition was intimated under the authority of the Court in this imperfect state: Find, that a minute was afterwards given in, containing a certificate of the amount of the land-tax; but that this minute, even if it could be held as supplying the original defect in the petition, was not intimated as the Act requires the petition to be, and therefore cannot supply the defect in the petition. 2do, Find, that as the petition prayed for authority to sell lands in point of rent and value much more than sufficient to redeem the land-tax of the whole estate, it was requisite, by the 63d section of the Act, that the petition, besides being intimated on the walls of the Court, should be intimated personally to the next heir of entail in Great Britain being of lawful age: Find, that no evidence of such intimation was laid before the Court: Find, that the letter from Mrs Guy, which has since been produced in this process, does not contain evidence that sufficient intimation was made to her; as from that letter it does not appear that the Mill of Hallrule and mill lands had been included in the intimation to her, of which her said letter is an acknowledgment. 3tio, Find, that the articles of roup, as prepared by Sir William Elliot for the approbation of the Court, did not specify any upset price, but left that blank, and the upset price was thereafter fixed by some private authority, without any warrant from the Court. 4to, Find, that the articles of roup, even as thus imperfectly prepared, were afterwards altered by Sir William Eliott, without any authority of the Court, by excepting the teinds, and by declaring that the lands to be sold were to remain subject to their proportion of the land-tax. 5to, Find, that this alteration was not only not warranted by any authority from the Court, but was in itself in the face of the statute, which provides, that no lands shall be sold, except for the redemption of the land-tax thereof. 6to, Find, that no proof was offered to the Court of the necessity or expediency of selling so large a quantity of land and superiority to redeem this comparatively small amount of land-tax; while, from subsequent proceedings, it appears that these lands might have been disjoined, and any part of them sold separately, which, in fact, was soon afterwards done by Sir William Eliott to these defenders. 7mo, Find, that the price was not paid into the Bank of England, as required by the Act, before granting dispositions to the purchasers. 8vo, Find it proved by the terms of the dispositions to the defenders, that they were made aware that the Act had not been followed out. 9no, Find,

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that the sales in question never were reported to and approved of by the Court. Therefore, on the whole matter, adhere to the interlocutors complained of, and refuse the desire of the petition, reserving to the defenders their claims for repetition of the price from the pursuer, in so far as any part of it was applied to redeem the land-tax, and to discharge the burdens which either affected, or which could have been made to affect, the entailed estate, or the pursuer, the heir in possession; as also reserving to the defenders any claim they may have for ameliorations on the lands respectively purchased by them; and to the pursuer, on all these points, his objections, as accords; also reserving to the pursuer his claim for repetition of the rents, and to the defenders their objections thereto, as accords: And remit to the Lord Ordinary to hear parties on all these points, and to do therein as he shall see cause, and decern.”

And thereafter, on the 9th February 1826, their Lordships adhered, but gave leave to the defenders to appeal. The pursuer had also petitioned the Court on two points, with which he was dissatisfied:—1st, As to the defenders not being hurt by any alleged fraud on the part of the late Sir William Eliott; and, 2dly, As to the intimation to Mrs Guy being to the proper party. But the Court refused his petition, and adhered; giving him, however, also leave to appeal. ^*

Both parties, accordingly, appealed.

Wilson and others (appellants in original, respondents in cross appeal).—I. The plea of the respondents is, that Sir William Eliott ought to have proceeded under the 63d, and not the 61st section of the statute, he having in contemplation to sell more land than sufficient to redeem the land-tax. But the 63d section is merely supplementary of the 61st section. The Act of 42. Geo. II. on which Sir William founded generally, consolidated the previous statutes on the subject; and these statutes shew that the respondents' objections are unfounded. The 63d section was never intended to operate by itself, since it is quite silent as to advertisements and intimation on the walls. ^† Even if the respondents were right, that the Court had in some respects deviated from the strict letter of the statute, this would not

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* See 4. Shaw and Dunlop, No. 289.

† The appellant went into a great deal of argument, to shew that the different findings of the Court of Session were erroneous; but as the House placed their judgment on a different ground, it is not necessary to advert to it.

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