United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

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(1833) 6 W&S 518

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1832.

2 d Division.

No. 35.

Francis Graham, Appellant and Respondent.—Dr. Lushington—Robertson

v.

John Alison, Appellant and Respondent; and John Brown and the representatives of Colin Alison, Respondents.—Sir C. Wetherell—Murray

[ 19th July 1833.]

Ld. Corehouse

Subject_Agent and Client — Adjudication — Reparation — Entail. —

A law agent was employed by a creditor to lead an adjudication against the entailed estate of his debtor; and the agent raised a summons concluding for decree of adjudication of the debtor's life-rent interest in the lands, which he obtained, and employed another agent to complete a feudal title on the decree by charter and sasine, which was done accordingly; but it was afterwards found that they were inept as a feudal title, in respect the fee and not the life-rent ought to have been adjudged: Held (affirming the judgment of the Court of Session), that the original agent was liable in repetition to the creditor of the expense of the charter and sasine, but not in damages; and that the other agent was not liable in repetition or damages.

The respondent, John Alison, a writer to the signet, was instructed by Mr. Graham, the appellant, to recover payment of a debt due from Mr. Gray, who was heir of entail in possession of the estate of Carse, by adjudging his interest in the estate. In the summons he concluded for an adjudication “of the life-rent of the said Charles

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Gray, or whatever more extensive or valuable right stands vested in his person, or in the person of any trustee for his use or behoof, so far as not inconsistent with the conditions of the entail of the said estate.” It was executed under the direction of Colin Alison, a writer in the country, and transmitted by him to John Alison, to be proceeded with in common form; and decreet was pronounced conform to the conclusions. John Alison, having soon after retired from business, committed the charge of the future proceedings to the other respondent, John Brown, who accordingly prepared the requisite deeds for completing a feudal title on the decreet of adjudication,—the dispositive clause of the charter of adjudication being in terms conformable to the summons and decreet.

Founding on this title, the appellant raised an action of reduction of certain securities in favour of other parties over the estate of Carse. He was met by an objection to his title to insist, that his decreet of adjudication was insufficient to attach the estate, seeing that it did not adjudge the fee of the lands, but merely Mr. Gray's liferent right in them, Mr. Gray not being a life-renter, but a limited fiar, and that his charter of adjudication and infeftment were consequently inept as a title to challenge real securities. The Lord Ordinary (Newton), on 29th January 1828, pronounced this interlocutor:—

“The Lord Ordinary, having considered the summons and preliminary defences, with the productions made by the pursuer, and heard parties procurators thereon, finds that the dispositive clause of the pursuer's charter of adjudication (which is precisely conform to the decreet of adjudication on which it proceeds), in so far as it respects the entailed estate of Carse,
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does not convey the lands themselves, but “usum vitalis redditus dicti Caroli Gray et quodcumque aliud jus vel interesse magis extensum vel pretiosum vestitum stans in ejus persona vel in persona alicujus amici fiduciarii ut fidei commissarii in fiducia pro ejus usu et beneficio quantum non repugnat conditionibus tallipæ,”&c.: Finds that the conveyance of Mr. Gray's life-rent was inept, he being no life-renter, but fiar of the lands, though a limited fiar; and that the addition of the indefinite, more extensive, and valuable rights which he might happen to be vested with, either in his own person or in that of a trustee for his behoof, is not such as could constitute a proper feudal estate in the pursuer, or to warrant his infeftment in the lands: Finds, that the precept which authorizes in general terms, “Sasinam totarum et integrarum prefat. terrarum. decimarum et secundam formam et tenorem antedict cartæ nostræ,” although a sufficient warrant for infeftment in the other lands and subjects directly conveyed, was not such in regard to the entailed estate, as to which all that is granted is a right of life-rent which did not exist, or some more extensive right, the nature of which is left altogether undefined: Therefore, sustains the objections to the pursuer's title, that he has no valid infeftment or feudal estate in the tailzied lands; assoilzies the defenders; and decerns; but finds no expenses due.”

The Court having, on the 14th November 1828, adhered to this interlocutor, Mr. Graham brought an action of damages against the respondents, as having, by the inept manner in which they prepared his titles, occasioned his postponement to the heritable creditors

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of Mr. Gray, and involved him in ineffectual litigation upon the faith of these titles. The respondents stated various grounds of defence; and in particular that the question as to whether the right of an heir of entail was that of a life-renter or a fiar was one of difficulty, and hitherto unsettled, and if the respondents had committed an error in law they ought not to be found liable in damages. The Lord Ordinary (Corehouse) pronounced this interlocutor (11th June 1830):—

“The Lord Ordinary, having considered the closed record, and heard counsel for the parties, finds the defenders liable to the pursuer in repetition of the expense of expeding the charter and sasine on the decreet of adjudication mentioned in the pleadings, in so far as it had been paid to them, or to Mr. Colin. Alison for behoof of them or any of them; assoilzies them from all the other conclusions of the action; finds no expenses due; and decerns.”

His Lordship at the same time issued this note:—

“If the law laid down in Lord Newton's interlocutor of the 29th of January 1828 had been perfectly settled previous to that interlocutor, there might perhaps have been some ground for the claim of damages raised by the pursuer. But that is not the case, as appears from the judgment of the First Division, where his Lordship's interlocutor was reviewed, and still more from the deliberations of the Court on that occasion. It seems to have been held, then, that the adjudication itself, independently of the charter and infeftment which followed upon it, was a sufficient title to insist in the reduction brought by the pursuer, in which view the charter and infeftment, at the worst, were only superfluous. But farther, till
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that time the law with regard to a feudal title of the nature in question was by no means clear. It is certain that a life-rent, meaning thereby a usufruct—for example, the courtesy, terce, or a life-rent granted in life-rent use allenarly, cannot pass to the effect of being feudalized in the person of the disponee or adjudger. In law language, inhæret ossibus of the life-renter. But it is equally certain, that the right of an heir in possession under a strict entail (which, though often termed a life-rent, is not a usufruct,) may be adjudged to that effect; and the question is, what is the proper mode of doing so? Previous to the decision in Sir William Nairne's case in 1810, the practice generally, if not universally followed, was to adjudge, not the lands themselves, but the interest of the heir in the lands, exactly as the defenders did in the present case. This appears from the form prescribed in the Juridical Styles, and the fact is well known to every person who practised at that period. Lawyers seem to have been apprehensive, that if an adjudication of the lands themselves were made real, though limited in endurance and extent, in the same manner as the heir's fee, it would infer an irritancy, and consequently defeat the whole proceedings. In Sir William Nairne's case the point raised was not whether the disposition granted by the heir of entail, and followed by infeftment, was an irritancy, but whether, under the limitations introduced, it was or was not a real right in competition with personal creditors. Since that case, indeed, there has been an understanding that the fee of an entailed estate may be disponed or adjudged, and the right of the disponee or adjudger
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feudalized without risk, the restrictions of the entail being inserted in his investiture. But it is thought that this has not yet been the subject of express decision; nor, until the judgment of the Court in 1828, has it been found that the heir's right, which is not of the nature of the usufruct, might not be adjudged, and a feudal title so completed, according to the old practice, without including the lands themselves in the adjudication. For, according to feudal principles, there is no right connected with land, except a usufruct, that may not be made real by infeftment, and in that form conveyed to a third party. Taking into view, therefore, the circumstances of this case, namely, the danger of an irritancy on the one hand, and the admitted practice on the other, it can hardly be maintained that Mr. John Alison was to blame in following the course he did, in a matter in apicibus juris; but if he was, there was no such culpa lata, or gross professional ignorance, as ought to subject them in damages to the pursuer.”

All parties reclaimed; and the Court, on 4th December 1830, assoilzied Brown and the representatives of Colin Alison, but found “that the defender, John Alison, is liable in repetition of the expense of the charter and sasine, mentioned in the pleadings.” ^*

Against these interlocutors Graham appealed, and John Alison cross appealed.

Appellant.—The decree of adjudication, and charter of sasine following thereon, were blundered by the

_________________ Footnote _________________

* 9 S. & D. p. 160.

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respondents. The error in the decree of adjudication is of such a description as to render the professional persons employed responsible for the consequences. An error having been committed, on account of which the appellant is entitled to demand reparation from those employed by him, there is sufficient evidence to attach that responsibility to all the respondents.

Respondents.—The decree of adjudication, with the charter and sasine which followed thereon, were prepared and expede according to the usual and established forms, and, whether these forms shall be held correct or not, the respondents cannot be made liable in damages, merely for adhering to them. The claims now made by the appellant are inconsistent with the conclusions of his own summons, and there is neither legal ground, nor equitable principle, for holding Mr. John Alison responsible for any expenses connected with the charter or infeftment in question.

Lord Chancellor.—My Lords, the case of Graham v. Alison stood over for the purpose of further consideration. It respects the costs of certain legal proceedings referred to in the original appeal. Since the discussion, I have availed myself of the opportunity of further considering that case, and I would advise your Lordships to affirm the judgment. I had some doubt whether the Lord Ordinary was right in assoilzieing all the defenders except John Alison, for I questioned whether John Alison ought not to have been assoilzied too; and I moved your Lordships, in consequence, that the case should stand for further consideration. I have since further considered it; I have had some

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correspondence with the Learned Judges upon the subject; and the grounds of my doubt having been removed, the result is, that I have now come to a conclusion, that the Court below was right in making the exception of John Alison. I do not feel it to be necessary to say more upon this case, but will move your Lordships to affirm the judgment of the Court below, with costs to the respondents, as regards the original appeal.

The House of Lords ordered and adjudged, That the said original and cross appeals be and are hereby dismissed this House, and that the interlocutors, so far as therein complained of, be and the same are hereby affirmed: And it is further ordered, That the appellant in the said original appeal do pay or cause to be paid to the respondents in the said appeal the sum of 193 l. 7 s. 10 d. for their costs in respect of the said appeal.

Solicitors: John A. Powell— John Butt and Williams— Brooks, Powell, and Broderip, Solicitors.

1833