Scottish Court of Session Decisions

Subject_1 PART I.

TAILZIE.

William Chisholm
v.
Elspeth Macdonald, and Others

Date: 27 February 1800
Case No. No. 6.

Leases followed with possession, granted by a landlord who had only a personal right to the lands, qualified by an entail, on which infeftment had not followed, reduced, because they were longer than the entail permitted.

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The estate of Chisholm was forfeited, in consequence of the accession of Roderick Chisholm to the rebellion in 1715.

The greater part of it was held of the Crown, but a branch, called Comarkirkton, was held of Lord Lovat.

The Commissioners of Inquiry disponed the whole to James Baillie, with procuratory of resignation; and he soon after conveyed it to George Mackenzie, his heirs and assignees, assigning the former disposition and procuratory.

Mackenzie took a charter of the whole from the Crown, with the same destination, and conveyed it to Chisholm of Mackerach, by disposition, containing assignation to the unexecuted precept in the Crown-charter, upon which he was infeft in the whole lands.

In 1742, he disponed the whole to Alexander Chisholm, (son of Roderick,) and the heirs-male of his body, &c. and he immediately obtained a Crown-charter for the whole, and took infeftment.

Lord Lovat afterwards brought a reduction of these titles, so far as they related to the superiority of Comarkirkton, and in 1744, he obtained judgment in his favour.

Owing to his forfeiture, on account of the rebellion in 1745, the process fell asleep; but it was revived first by the Commissioners of Annexed Estates, and afterward by the representatives of the family when the estate was restored; but the decree was never extracted.

Alexander Chisholm, without noticing the process, in 1777 executed a strict entail of the whole estate of Chisholm, containing a prohibition against granting leases longer than nine years, or the life of the granter, with procuratory of resignation in favour of himself and his sons, and the heirs-male of their bodies seriatim.

He recorded the entail, but did not take infeftment on it.

He was succeeded by his son Alexander, who obtained a brieve from Chancery, which directed the jury to inquire, ‘si dict. Alexander Chisholm sit legitimus et propinquior hæres masculus talliæ et provisionis dict, quond. Alexandri Chisholm sui patris,’ &c.

He accordingly expede a general service.

The retour, in terms of the claim made by him before the jury, bore, that he was ‘legitimus et propinquior hæres masculus, ac etiam hæres talliæ et ‘provisionis, dict, quond. Alexandri Chisholm, sui patris, et literarum talliæ,’ &c.

He immediately applied for a Crown charter of the whole estate of Chisholm; but in consequence of opposition from the family of Lovat, Comarkirkton was not included in the charter obtained by him.

He was infeft on the charter, but no further steps were taken by him for completing his title to Comarkirkton. While in this situation, he granted leases of Comarkirkton for eighteen years. They bore to be granted in virtue of 10th Geo. III. C. 51. for improving entailed estates, but it appeared ex facie that grassums had been paid by the tenants, which excluded the benefit of the statute.

Alexander having died without male-issue, was succeeded by his younger brother William, who made up titles to the Crown lands, by special service to his brother, and was infeft. He resigned Comarkirkton into the hands of Lovat’s representatives upon the procuratory in his father’s entail, and obtained a charter, on which likewise he took infeftment.

He then brought a reduction of the leases of Comarkirkton, so far as they were longer than the entail permitted.

The defenders objected to the title of the pursuer, that his charter and infeftment were inept, as proceeding upon a procuratory by a person holding under a wrong superior, and upon titles which had been set aside in Lord Lovat’s process. But it was answered, That an infeftment is of itself a sufficient title to prosecute a removing, without production of its warrants, and that even an infeftment is unnecessary as a title to insist in a declarator and reduction.

On the merits, the defenders

Pleaded: As the titles made up by Chisholm of Mackerach and the entailer stand reduced, the late Mr. Chisholm might have taken up the lands in fee simple, by connecting himself with the disposition to James Baillie, and various transmissions of it, without noticing the entail, which at best created only a personal obligation against him, in which case singular successors would not have been affected by the restrictions of it. Now, it appears from the retour, that be assumed alternatively the character of heir-male in general, and of heir of entail; and the defenders are entitled to ascribe his possession to any character in his person which can support the onerous rights obtained by them. This being the case, and the entail being a separate latent deed, it would have been defeated by any posterior right granted by him completed by infeftment before it; 22d June 1737, Bell against Garthshore, No. 80. p. 2848; Bankt. B. 4. Tit. 43. § 16.; Ersk. B. 2. Tit 7. § 26.; 13th February 1781, Mitchells against Fergusson, No. 105. p. 10296; 1765, Douglas of Kelhead, (not reported); 31st January 1792, Creditors of Ross of Kerse, No. 108. p. 10300. And possession in leases is equivalent to infeftment in rights which require it.

Besides, by act 1685, C. 22. fixing the requisites of entails, none can affect third parties upon which infeftment has not followed.

Answered: Alexander Chisholm could not have taken up Comarkirkton in fee simple, without forfeiting his right to the whole estate of Chisholm, in terms of the entail. He therefore assumed the character of heir of entail only. It was in this character, that the brieve from Chancery was directed to the jury; and the retour, if it had been inconsistent with it, would have been ineffectual, as contrary to its warrant. But, in fact, the retour was meant to relate solely to the entail, as is evident from its reference to it. Application accordingly was immediately made to Exchequer for a charter of resignation and tailzie. The leases bear, that the defenders transacted with their landlord in that character, and they cannot be allowed to object to the conditions annexed to it.

Even if his service had been as heir-male general, as he was not infeft, and the entail constituted a valid personal obligation against him, it must be effectual against those who contracted with him, it being only in the case of feudal rights, that personal obligations are not good against third parties; House of Lords, Denham of Westshiels, mentioned in Creditors of Carleton against Gordon, No. 33. p. 15384. and No. 75. p. 10258. Leases followed with possession, are made real by statute in questions with the successors of the landlord; but this will not prevent the qualifications of his own title, when it is personal, from affecting the tenants. It is a mistake to suppose, that the act 1685 applies to parties connecting themselves with a personal right to lands.

The result would have been different, if Alexander had afterward taken a charter and infeftment as in fee-simple, or their place had been supplied by a charge to complete his titles in this manner; and to cases of this description only, the decisions quoted by the defenders relate.

The Lord Ordinary ‘ sustained the pursuer’s title to pursue, but found, that the right to the lands in question in Alexander Chisholm the entailer was personal, and by the disposition thereof in his favour, by Alexander Chisholm of Mackerach, stood destined in the first place, to the heirs-male of his body: Found, That as the entail 1777 was not perfected by an apt infeftment from the true superior, the destination in the disposition 1742 by Mackerach, was not thereby effectually altered or put an end to, and that therefore it remained optional to the late Alexander Chisholm, who was both heir-male and heir of entail of his father the entailer, to make up titles to Mackerach’s disposition, whereby, in the first instance, he would be free of the fetters of the entail; Found, That by the service of the said late Alexander Çhisholm as hæres masculus, expressed distinctly as a separate character from that of hares talliæ et provisionis, he carried the unfettered personal right in the disposition 1742, and that his right was sufficient to support the leases granted by him to the defenders, though upon terms inconsistent with the conditions in that deed of entail; therefore sustained the defences,’ &c,

Upon advising a petition for the pursuer, with answers, and a counterpetition for the defenders,

The Lords (22d June 1800) adhered, in so far as the interlocctor sustained the pursuer’s title, but ordered memorials quoad ultra.

And, on considering them, the Court were nearly unanimous in thinking that Alexander’s service could, in all the circumstances of the case, be ascribed only to the entail, and that though his service had been in fee-simple, as his right to the lands remained personal, the entail which qualified it was, in terms of the decisions of Westshiels and Carleton, effectual against the defenders.

The leases were reduced.

Lord Ordinary, Meadowbank. Act. H. Erskine, Rae. Alt. J. W. Murray. Clerk, Home. Fac. Coll. No. 168. p. 382.