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he says,

“ Therefore, and to the effect the said ten scholars and bursars may

be paid yearly furth of the maills and duties of the said lands, according to the division above written, I, the said Sir Alexander, for me, my heirs and successors, has mortified, destinated, and appointed, and by these presents, for me and my foresaids, mortify, destinate, and appoint the above written lands, maills, and others foresaid, with the pertinents, for the use and behoof of the said ten scholars yearly in all times thereafter, to the effect the maills, farms, and duties thereof may be paid to them yearly for their maintenance, according to the division above written; with power to them, and their curators in their name, to uptake the maills, farms, and duties of the foresaid lands for that effect."

The pursuers contend that the foregoing proceedings import that Sir Alexander appropriated to his own use the sum of L.10,000 Scots, and in consideration thereof, by the deed of 1656, mortified the lands of Kinmuck and others for the use and behoof of the pursuers, and the object of the present action accordingly is to have the pursuers' right to the said lands declared, which at the date of the deed were worth L.1000 Scots yearly, but are now said to be worth L. 700 per annum. · The defender, on the other hand, contends that the deed of 1656 was only a bond granted for the purpose of securing to the bursars the annual payment of L.1000 Scots, which sum he is and always has been willing to pay, as his ancestors have always done. The deed does not,

contain

any

absolute conveyance of the lands, and was never followed by possession, or acted on in any way; on the contrary, the lands have always remained in the possession of the Irvines of Drum, a part of that estate.

On 20 December 1863, the Lord Ordinary (Kinloch) found that, according to a sound construction of the testament of 1629, the decree of 16:33, and the deed of mortification of 1656, the whole beneficial interest in the lands of Kinmuck was transferred and made over for behoof of the bursars, and that the pursuers were entitled to have this right declared and enforced against the defender as vested with the feudal title to the lands.

The defender reclaimed, and on 30th March 1864, the Court, after a debate, allowed to both parties a proof before answer of their respective averments on record. The proof was led, and the case having been again debated at great length, was advised to-day.

Lord Curriehill, who delivered the first opinion, after narrating the facts of the case, said the nature of the rights in favour of the bursars appear to be this. The testator directed his money to be paid to the Provost, Bailies, and Council of Aberdeen, to be invested by them upon land and annual rent, and to be paid in certain sums to the said bursars. If these directions had been executed in 1630, the rights in favour of the bursars would have been rights of annual rent, and each bursar would have had a separate right to a certain specific sum fixed by the testator himself. Such right would have been of a very different character from that of a right to the rent of land which varies, and must always vary in amount. Such a right to annual rents was at that date familiarly known in Scotch law. The bonds by which they were constituted were of two kinds, redeemable when intended as a security for a debt, and irredeemable when intended as a permanent security. They are also knowu in modern practice, though not so commonly employed—but their legal character is well known. These rights, although incorporeal, were, both in the manner of their infeftment

and of their transmission, dealt with as ordinary feudal rights. If an annual rent of £1000 Scots had been originally granted in favour of the bursars, there can be no doubt that this would have been a complete fulfilment of the testator's intention. But two obstacles appear to have presented themselves. First, it appears that £10,000 Scots could not produce the requisite amount; and, secondly, the Town Council refused to accept the trust. But before intimating their declinature of the trust, they appear to have so far interfered in the management thereof as to have got the fund paid by the testator's widow to Sir Alex. Irvine; and ultimately they refused to accept this fund from him, although offered it in the presence of notary and witnesses. He then raised an action in the Court of Session. This action was of an unusual character. No decerniture was asked against any one. It merely stated the general circumstances of the case, and then went on to state that the money was lying idle, and the Court was therefore requested to confer on the pursuer a power to purchase lands to carry out the

purposes of his father's will, or alternatively to allow the money to be consigned, that the Court might deal with it as it thought fit. Sir Alexander, the holder of the fund, made the above alternative proposals, while the Town Council appear to have made an extra-judicial proposal that the money should be allowed to accumulate for seven years, or until it should be sufficient to purchase feu-duties which would yield an annual return of £1000 Scots. This was a proposal not inconsistent with the intentions of the testator, because feu-duties are a species of annual rent. We have no information as to what took place at a conference, which it appears that the Court proposed that the parties should hold, nor indeed whether such a conference took place at all. The terms of the ultimate deliverance are somewhat obscure. The Court did not authorise an immediate purchase of land, nor on the other hand did they take any notice of the said extra-judicial proposal of the Town Council. The effect of what they did appears to have been this—that an arrangement was made that Sir Alexander should keep the £10,000 Scots until 1640 without paying any interest, and for his own behoof—that he should then provide land yielding £1000 Scots, and should then constitute a right of annual rent over the lands. There appears to have been some confusion in this judgment, but the real meaning appears to me to be what I have stated; and at any rate I do not think that the deliverance ought to or can be construed so as to innovate the right of annual rent, plainly contemplated by the testator, into such a precarious one as a right to rents must always be—such right being clearly at variance with the testator's intentions—more especially when the deliverance expressly bears that it is a carrying out of the testator's wishes. This arrangement imported that Sir Alexander and his successors were to have right to the fee, and that the bursars were to have right to the annual rent. The only remaining question is, whether Sir Alexander converted this right of annual rent into a right of fee by the bond of 1656. The phrascology of this bond is certainly obscure. But it is extremely unlikely that he had any such intention, and it is certain that he had no power thus to innovate the right of annual rent; and in the bond he expressly says that he is thereby implementing his father's testament, and the object of the deed plainly is to put the lands of Drum in the same position as if the bond had been granted by a third party. Moreover, he did not in point of fact dispone the fee to the bursars, or to any

pursuer's

other party. Rights of annual rent were at that time available out of rents, maills, and duties. This had at that date been already settled by deliberate decisions.

If Sir Alexander had in 1656 granted such right of annual rent, I think that the original testament and the deliverance of the Court would have been duly implemented. Has, then, anything occurred since to entitle the bursars, or any persons in their right, to demand the fee of these lands? The question depends principally upon usage ; and after a careful examination of all that has since taken place I have not found anything which in my opinion entitles them to succeed in such a claim. In the first place, the right to the fee has all along been allowed to remain without question in the family of Drum. Second, the parties in possession of these lands have, except for a short and unimportant interval, arising from a feudal casualty, been the defender and his predecessors. Further, the pursuers have never levied any rents nor received any payments as landlords for this £1000 Scots. It is, moreover, a significant fact that part of this estate was at one time sold, and the price thereof was paid, not to the bursars, but to the defender's predecessor, and on the renewal of leases, grassums were received, which,

were the contention well founded, would have belonged to the bursars, but were, in point of fact, neither received nor claimed by them. Another and not unimportant incident is that, on 20th August 1813, the then laird of Drum wrote a letter to the University of Aberdeen to the effect that, in 1816, he expected to be able to make up the full sum of £1000 Scots, and the letter concluded by stating that, as his predecessor's original offer had been refused both by the University and the Town Council, he expected that they would now relieve him of all future claim on the lands, in case the rents should at any time amount to more than that sum. The Principal of the University accepted this offer, and in so doing he suggested that the town, having once refused the offer and declined to have anything to do with the fund, should now be held to be out of the field.

The letter appears to have been recorded in 1822, for what purpose I know not, and I do not think it affects the question one way or another. His lordship then proceeded to examine various other points of usage, which it is not necessary to detail at length, and expressed his opinion that, on the whole, the usage did not appear conclusively in favour of either party, and certainly did not support the contention of the pursuers.

The other Judges concurred substantially on the grounds stated by Lord Curriehill, and accordingly the interlocutor of the Lord Ordinary was recalled, and the defender assoilzied with expenses.

SECOND DIVISION.

(Whole Court.)
FLEEMING AND OTHERS v. HOWDEN AND DUNLOP.-Feb. 2.

Entail-Devolution-Declarator--Competition
The late John Fleeming, the original defender in this action, was infeft as
heir of tailzie and provision, in the estates claimed by the original pursuer,
Lady Hawarden, on 1st May 1841. By the death of John, thirteenth
Baron Elphinstone, on 19th July 1860, the succession to the Barony of
Elphinstone opened to the said John Fleeming. By the entail under which

John Fleeming held the said estates it was provided—“That in case it shall have been any of the heirs of tailzie mentioned other than the heirs-male of my body, or of the body of Mr. Charles Fleeming, to succeed to the title and dignity of Peerage, then, and in that case, and how soon the person 80 succeeding, or having right to succeed, to my said estate, shall also succeed, or have right to succeed, to the said title and dignity of Peerage, they shall be bound and obliged to denude themselves of all right, title, or interest which may be competent to them of my said estate; and the same shall from thenceforth ipso facto accrue and devolve upon my next heir of tailzie for the time being, sicklike as if the person so succeeding and bound to denude were naturally dead.” Lady Hawarden, as heir of entail next entitled to succeed to the said estates after the said John Fleeming, raised the present action, in which her only son is now insisting, against John Fleeming, and the defendor Dunlop for his interest, to compel Fleeming to denude of the estates in her favour, and also for the purpose of adjudging the said estates to belong to her in virtue of the entail, and of the opening of the succession to the title to the said John Fleeming. Dunlop was, during the lifetime of John Fleeming, and when the action was raised, in possession of the said estates, under a disposition in his favour by John Fleeming in 1859, which, though ex facie absolute, was truly a security for debt. Fleeming and Dunlop lodged joint defencos. Fleeming having died on 13th January 1861; his estates were sequestrated on 7th July 1862, and the defender Howden was appointed trustee in the sequestration in July 1861. Lady Hawarden was served in special as heir of tailzie and provision of the said estates to the said John Fleeming, who died last vest and seised in them. With findings to the above effect in point of fact, and a finding that the entail was valid and effectual, this Division sent the revised cases for the parties to the whole Court for their opinions on the following questions :

(1.) Whether the devolution of the estates provided by the clause of the deed of entail took effect ipso facto on the succession to the Peerage opening to Fleeming so as to entitle Lady Hawarden to immediate possession without any declarator?

(2.) Whether, assuming that the debt which the disposition to Dunlop was intended to secure is a subsisting debt. Lady Hawarden was, in competition with him entitled to the rents of the estates for the period between the succession to the Peerage opening on 19th July 1860, and the raising of this action, or for the period between the raising of the action and the death of Fleeming?

(3.) Whether Lady Hawarden was, in competition with the trustee on the sequestrated estate of Fleeming, entitled to the said rents or profits, or any part of the same ?

The opinion returned by the Lord President, Lord Curriehill, Lord Ardmillan, Lord Jerviswoode, Lord Ormidale, and Lord Mure, was (1.) that on the succession to the Peerage opening to John Fleeming, the devolution provided by the deed of entail took effect so as to entitle Lady Hawarden to immediate possession of the estates, and to the rents without any declarator. The succession to the Peerage was not a contravention of any of the provisions or conditions of the deed of entail. It was not an act prohibited to be done, or an omission of anything that the heir in possession was enjoined to do. It was an occurrence of a character altogether different

from those matters in reference to which the statute 1685 contemplates an action of declarator. It was not a penal irritancy; it was not, in the sense of the entail, or in any proper sense, an irritancy. It was a provision or condition for regulating the course of succession. John Fleeming took the estates, not only subject to the condition that if he succeeded to the Peerage (or it might have been if he succeeded to a certain other estate of greater value), the estates now in question should from thenceforth devolve on and accrue to the next heir, but also subject to an express obligation on him, as soon as the succession to the Peerage opened to him, to denude, which is tantamount to an obligation on him forthwith to convey the estates to the next heir. If John Fleeming refused to cede possession, an action at the instance of the next heir might be necessary, not to give her the right, but to enforce it, and compel implement of the obligation : nor could John Fleeming, by resisting such an action, prolong the period of his lawful enjoyment of the rents, or postpone until decree in that action the period when the rights of the next heir would commence.

(2.) That Lady Hawarden was entitled to the rents for the period between the date when the succession to the Peerage opened to John Fleeming and his death. When Fleeming's right ceased, that of Mr. Dunlop, derived from him, also ceased. This, we think, follows on principle, and from the terms of Mr. Dunlop's title.

(3.) That Lady Hawarden was, in competition with the trustee on the sequestrated estate of John Fleeming, entitled to the rents.

Lord Deas, Lord Barcaple, and Lord Kinloch returned separate opinions substantially agreeing.

The Lord Justice Clerk, and other judges at advising concurred in the views stated in the Lord President's opinion.

RICHMOND v. Common AGENT IN LOCALITY OF ORWELL. --Jan 26.

Locality-SurrenderCommonty. In the locality of Orwell, Mr. Richmond of Colliston, gave in a minute of surrender of lands, including the teinds of a portion of the former commonty of Cutbil Muir, belonging to him, and allocated to him in a division thereof about 1774. He maintained, and the objectors denied, that these teinds were included in a sub-valuation in 1630. Mr. Richmond's titles since 1633, include parts, pertinents, and pendicles, but there is no mention of the common in the titles, and no information respecting it prior to 1774. The Lord Ordinary (Barcaple) found that Mr. Richmond had failed to show that the teinds in question had been valued by the valuation founded on, and sustained the objections to the surrender.

Mr. Richmond reclaimed; and the Court held that the record had been incompetently made up on the minute of surrender. A minute of surrender should be simple and unconditional. It should be in the terms of the valuation founded upon, and incapable of being objected to ; while that in the present case involved the proposition, which is open to dispute, that the teinds of the lands in question were included in the valuation of 1630. That question ought to be raised in the form of objections to the interim scheme of locality, when it would be seen what other heritors were localled upon, and what they got under the decree of division. The Court recalled the interlocutor, and appointed the minute to be withdrawn. VOL. XI. NO. CXI.-- MARCH 1866.

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