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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Barstow (Park's Curator) v. Black and Others [1870] ScotLR 7_381 (9 March 1870) URL: http://www.bailii.org/scot/cases/ScotCS/1870/07SLR0381.html Cite as: [1870] ScotLR 7_381, [1870] SLR 7_381 |
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Declarator — Meaning of Judgment — Competency — Lis alibi pendens — Res judicata.
A died in 1830 leaving a trust-disposition and settlement conveying his heritable property to B. B died in 1860, leaving a deed of settlement by which he conveyed all his heritable estate belonging to him, or which might belong to him at his death, whether he had succeeded to it through A or had acquired it himself. This deed was executed on deathbed. The heir-at-law of B thereupon raised an action of reduction of B's deed ex capite lecti. In the defences to this action it was maintained that the heir-at-law had no title to sue a reduction of B's deed, in so far as that operated as a conveyance of the heritable estate formerly belonging to A, and settled by his disposition in 1830. This defence was sustained by the Judges of the Second Division, but, quoad ultra, B's deed was reduced upon the head of deathbed. A had acquired both the property and the superiority of certain lands under separate titles. The superiority was acquired by him prior to the date of his settlement, and stood destined in favour of a certain individual and other heirs of provision,
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while the dominium utile was acquired subsequent to the date of the said settlement, and stood destined thereby to other heirs as a part of the residue and remainder of the estate of A. B, after his succession, made up titles to these lands, and consolidated by resignation ad remanentiam. The judgment of the Second Division above referred to was appealed to the House of Lords, which affirmed the judgment, adding a declaration that the heir-at-law was entitled to reduce B's deed so far as it operated as a conveyance of the plenum dominium of these lands, but to the effect only of vindicating the right of the heir-at-law to the dominium utile of the lands. Other lands which formed the subject of the present action stood upon a different footing. Of these the dominium utile alone had belonged to A, and they stood specially conveyed under his deed to one of the defenders in the action. B succeeded to the dominium utile of these lands under the settlement of A, and subsequent to A's death he acquired the superiority of the lands by purchase. Having both the estates in his own person, he afterwards consolidated by first entering as heir to the dominium utile by precept of dare, and then making a resignation ad remanentiam in his own hands. In regard to the latter lands, an action of declarator was brought by the heir-at-law to have it found that the plenum dominium of these lands belonged to him, as the same stood vested in B at the period of his death. It was maintained by the heir-at-law that these lands, as well as the lands first above referred to, fell within the reduction, and not the absolvitor of the former judgment of the Second Division. Held—(1) On the assumption that the former judgment of the Court was doubtful as to whether the lands in question in this action, were included in or dealt with by it, that an action of declarator to obtain the judgment of the Court upon that point was competent; (2) That the effect of the resignation by B was an evacuation of the destination in favour of the defender in the settlement of A, and that B's heir-at-law was entitled to the plenum dominium of the lands in question.
This was an action brought by the curator bonis of William Park, heir-at-law of the late Alexander Dunn of Duntocher, for the purpose of declaring the said William Park's right to the plenum dominium of certain lands known as Wester and Easter Kilbowie, which are particularly described in the summons. The action is brought in the following circumstances, as stated by the pursuer;—“The pursuer, C. M. Barstow, is curator bonis to William Park, a person of weak mind, now or lately residing in or near Hamilton. He was appointed, on June 2, 1866, in room and place of the deceased Andrew M'Ewan, conform to act and warrant of the Lords of Council and Session. The said William Park is nephew and nearest and lawful heir of line of the late Alexander Dunn, Esq. of Duntocher, being the only son of the only sister of the said deceased Alexander Dunn, and the said Alexander Dunn having died unmarried and without being survived by any brother or lawful issue of a brother. The said Alexander Dunn died on 15th June 1860, vest and seized as of fee in various lands and heritages, and among others in the subjects particularly described in the summons. Some of the said lands and heritages, and, inter alia, the dominium utile of the lands particularly described in the summons, Alexander Dunn had acquired by his succession to his brother William Dunn, who died on 13th March 1849, leaving a disposition and settlement, dated 17th April 1830, in favour of the said Alexander Dunn. The said Alexander Dunn left a trust-disposition and settlement, dated June 11, with codicils dated respectively 13th and 14th June, 1860, whereby he conveyed his whole lands and heritages and estates (including subjects which he had acquired by succession to his brother William) to John Henderson and others, as trustees, for the purposes therein expressed. The defender Robert Black was one of the said original trustees, and the defenders James Wyllie Guild and Colin Dunlop Donald went into the trust subsequently as assumed trustees. By the said deed a part of the lands of Kilbowie, described in the summons, was destined to the defender James Black, and the other portions thereof were destined to the defender John Macindoe. The said trust-disposition and settlement and codicils having been executed on deathbed, the pursuer's predecessor, its curator bonis foresaid, on June 19,1862, raised an action of reduction of the said deed and codicils ex capite lecti. In the said action defences were lodged for Alexander Dunn Pattison, and also for the defenders James Black and John Macindoe, and others, objecting to the pursuer's title to sue the action. On March 27,1863, the following judgment was pronounced in the said action by the Court of Session (Second Division):—‘The Lords having heard counsel on the reclaiming notes against Lord Jerviswoode's interlocutor, dated 10th January 1865, recall the said interlocutor, sustain the objections to the title of the pursuer to sue for reduction of the trust-disposition of the deceased Alexander Dunn, in so far as the same operates as a conveyance of the heritable estate formerly belonging to the deceased William Dunn, and settled by his disposition and settlement, dated 17th April 1830: To this extent sustain the defences, and assoilzie the defenders: Quoad ultra reduce, decern, and declare in terms of the conclusions of the libel: Find the defender Alexander Dunn Pattison entitled to expenses: Find no other expenses due, and remit to the auditor to tax the expenses now found due, and to report.' On appeal to the House of Lords the above judgment was affirmed, subject to the following declaration, viz.—‘That the pursuer, as curator for the heir-at-law of Alexander Dunn, has good title to sue for reduction of the trust-disposition of the said Alexander Dunn, in so far as it conveys the plenum dominium of the lands of Boquhanran, but only to the effect of enabling the said curator to vindicate the claim of the said heir-at-law as such to the dominium utile of the said lands, subject to such feu-duty or other rights as would have been exigible by, or have belonged to, the owner of the dominium directum if there had been no consolidation by Alexander Dunn. The said lands of Boquhanran, both property and superiority, had belonged to the said William Dunn by separate titles, the superiority having been acquired by him prior to the date of his settlement, and having been destined in terms thereof to Alexander Dunn Pattison, and other heirs of provision therein mentioned, while the dominium utile was acquired subsequent to the date of the said settlement, and stood destined thereby to other heirs as a part of
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the residue and remainder of the said William Dunn's lands and estates. Alexander Dunn, after his succession, made up titles to the said lands of Boquhanran, and consolidated by resignation ad remanentiam in his own hands. Among the subjects which Alexander Dunn acquired by succession to his brother William was the property or dominium utile of the lands of Kilbowie above described, and which were held of Sir Archibald Edmonstoune as immediate lawful superior thereof. Subsequently to his brother's death, Alexander Dunn acquired from Sir Archibald Edmonstone the superiority of the said lands of Kilbowie above described, and having completed a title thereto, and also to the dominium utile thereof, he consolidated by resignation ad remanentiam in his own hands in favour of himself and his heirs and successors, conform to procuratory of resignation ad remanentiam, dated Dec. 22,1853, and instrument of resignation following thereon, dated 31st December 1852, and recorded in the Register of Sasines of date 16th January 1853. The pursuer, as curator bonis foresaid, is in course of making up titles under the authority of the Court to the lands and heritages which belonged to Alexander Dunn at the time of his death, and which were not excepted from the foresaid decree of reduction. But in the course of the proceedings objection has been taken on the part of the defender James Black that the succession to the dominium utile of the said lands of Kilbowie above described is settled by the deed of William Dunn in favour of him, in so far as not settled upon the defender John Macindoe. He opposes any title being made up in the person of William Park to the said lands of Kilbowie. And the Court, on May 29, 1869, in consequence of the question raised by him as to the right to the dominium utile thereof, refused, hoc statu, to grant authority for completing a title to said lands.” The defenders maintained the following pleas:—“(1) Lis alibi pendens as regards the declaratory conclusions. (2) In respect the dominium utile of the lands of Kilbowie, described in the summons, forms part of the heritable estate which belonged to William Dunn, and was settled by his disposition and settlement, it is res judicata that the pursuer has no title to sue a reduction of the trust-disposition and settlement of Alexander Dunn, so far as it conveys that subject. (3) In respect of the judgment and pleadings set forth in the defenders' statement of facts, the pursuer is excluded from claiming the dominium utile of the lands of Kilbowie, at least so far as the defender is interested therein. (4) In respect of the provisions in the defender's favour in the disposition and deed of settlement of William Dunn, and in the trust-disposition and settlement of Alexander Dunn, the defender is entitled to the dominium utile of the lands of Kilbowie, so far as situated to the east of the Kilbowie Road. (5) And the pursuer, if he shall make up a title to the plenum dominium of said subjects, is bound to convey the dominium utile thereof, so far as situated to the east of the Kilbowie Road, to the defender, to be held by the defender, under the said William Park, as superior thereof, subject to the same duties and casualties as were exigible from the said William Dunn for said lands.”
The Lord Ordinary ( Ormidale) reported the case to the Court with the following note:—“The very peculiar circumstances in which the present action has been brought, and the nature of the pleas which fall to be determined, as immediately to be explained, have led the Lord Ordinary to think it right, contrary to the usual practice, to report this case, in place of deciding it himself. He has reported it to the First Division of the Court, in respect that it has been marked as belonging to that Division, although not unlikely it may yet be thought right, for the reasons afterwards adverted to, that it should be transferred to the Second Division.
“The object of the action is to have it found and declared that certain lands, known as Wester and Easter Culbowie or Kilbowie, which formerly belonged to Mr William Dunn of Duntocher, should, notwithstanding the terms of the interlocutor of the Second Division of the Court, disposing of a former action between the same parties (27th March 1865, 3 M‘P. 779), and judgment of affirmance of that interlocutor by the House of Lords (23d July 1868, 6 M'P. 147), now belong to the pursuer, as the heir-at-law of Mr Alexander Dunn, the younger brother of Mr William Dunn. It is maintained on the part of the defenders that the question now raised in the present action is either still depending in that former action, or has already been determined in it. The defenders have accordingly pleaded in bar of the present action—1st, Lis alibi pendens, and 2dly, Res judicata. The former of these pleas is maintained in respect that the judgment of the House of Lords in the former action not having been yet applied, the matter now in dispute may yet be considered and dealt with in that former action when the judgment of the House of Lords therein comes to be applied, and the plea of res judicata is maintained, in respect that, if it be held that nothing remains to be disposed of in the former action, then the question now in dispute must be held as having been determined therein.
“As it is obvious that the Lord Ordinary is not in a position to judge of these points so well or so satisfactorily as the Court in which the former action depended, and, according to the contention of the defender, still depends, he has thought it right at once to report the case. He has, for the reason already mentioned, being obliged to report it to the First Division of the Court,, from which, however, it may, if thought right, be transferred to the Second Division, where the former action was decided, and where it still depends, if it is in dependence at all.
“The terms of the interlocutor of the Second Division of the Court in the former action are set out in condescendence 6. It was by that interlocutor found that the pursuer had no title to sue for reduction of the trust-disposition and settlement of Alexander Dunn, ‘in so far as the same operates as a conveyance of the heritable estate formerly belonging to the deceased William Dunn, and settled by his disposition and settlement,' and to this extent absolvitor was pronounced, but quoad ultra Alexander Dunn's deed of settlement was reduced ex capite lecti. The pursuer having appealed that interlocutor to the House of Lords, pleaded, inter alia, that this Court had gone too far, and ought at least to have held that the pursuer had a good title to reduce Alexander Dunn's settlement, so far as it conveyed the dominium utile of the lands of Boquhanran; in respect that, although these lands had formerly belonged to William Dunn, and were settled by his disposition, that settlement had been evacuated by Alexander Dunn, and, as the lands consequently stood vested at his death in him in his heirs and successors,
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were no longer affected by William Dunn's deed, and so did not come under the scope of the defender's plea of want of title to reduce. This contention of the pursuer was sustained in the House of Lords, who pronounced an affirmance of the judgment of this Court, subject only to the declaration quoted in condescendence 7. “The pursuer now contends that the lands of Kilbowie stand in precisely the same position as the lands of Boquhanran, and therefore that they must be held to fall, not under the absolvitor, but under the decerniture of reduction in the interlocutor of the Second Division above referred to, in respect that the only estate in the person of Alexander Dunn at the date of his death was the dominium directum which he had himself acquired by purchase, enriched by the consolidation effected by him by resignation ad remanentiam in his own hands, and consequently that he is entitled to prevail in the present action. On the other hand, the defenders maintain that, even supposing the pursuer is right in his contention that the lands of Kilbowie stand in the same position as those of Boquhanran,—and from what is stated in articles 8, 9, and 10 of the condescendence, taken along with the admissions in the answers to these articles, this would appear to be the case,—the pursuer is barred by one or other of the two pleas of lis alibi pendens and res judicata from taking any benefit from that circumstance in the present action. They maintain, with reference to the plea of lis alibi pendens, that, keeping in view the terms of the judgment of affirmance in the House of Lords, whereby the case was remitted in the usual way to this Court, to proceed in accordance therewith, the question now in dispute may be raised, considered, and disposed of, in applying the judgment. But if this cannot be done, in respect of its being held that the former action was finally and exhaustively disposed of by the judgment in the House of Lords, then, in that view, the defenders contend that their plea of res judicata applies, and must be given effect to. Whether the latter plea be sound or not depends very much on what is the true meaning and interpretation of the interlocutor of the Second Division of the Court, set out in the sixth article of the pursuer's condescendence in the present case. The pursuer says that, according to the true meaning and interpretation of that interlocutor, the lands of Kilbowie, as well as the lands of Boquhanran, and all other lands similarly situated, fall under the decree of reduction, and not under the decree of absolvitor in that interlocutor. This may be so, and whether it is so or not, can, it is thought, be best determined and explained by the learned Judges by whom the interlocutor in question was pronounced. All that the Lord Ordinary thinks it necessary to add on the subject is, that if the pursuer be right in his present contention, it is not very easy to understand how it was thought necessary to qualify the judgment of affirmance of the House of Lords with the declaration which it contains regarding Boquhanran only, without any allusion to Kilbowie.
“A decision on the defenders' two pleas of lis alibi pendens and res judicata will be substantially a decision of the whole cause, so far at least as the declaratory conclusions are concerned.”
The case was first argued before the Judges of the Second Division, and was afterwards re-argued before seven Judges.
Solicitor-General and Lee for pursuer.
Lord Advocate and Gloag for the defender James Black.
At advising—
Lord President—This is an action maintained on behalf of William Park, a lunatic, by his curator bonis, for the purpose of establishing his right, as heir-at-law of the deceased Alexander Dunn, to certain heritable subjects mentioned in the summons; and the argument which we heard was confined, as I understand the Judges of the Second Division intended it should be, to a consideration of the declaratory conclusions of the summons, with the conclusion for obtaining possession of the subjects; and the defences stated upon the part of the defender Black to these conclusions; and that we have not at present any concern with the conclusions for accounting, or with any of the pleas maintained on behalf of Dunn's trustees, the other defenders.
The declaratory conclusion seeks to have it found and declared that William Park, as the nephew, and nearest and lawful heir-at-law of the deceased Alexander Dunn, has the sole right to the plenum dominium of certain lands called Easter and Wester Kilbowie, as the same stood in the person of the deceased Alexander Dunn at the time of his death; and upon that being declared, and it being further declared that the defender Black and the trustees have no right to the subjects, the trustees are to be decerned and ordained to cede possession to the pursuer.
The defences which are maintained by Mr Black, in answer to these conclusions, are of two descriptions. In the first place, they are founded upon the proceedings and judgment in a former action at the instance of Mr Park's curator against the trustees of Alexander Dunn and the beneficiaries claiming under his settlement. And the other defences are upon what may be properly called the merits of the declarator.
As regards the proceedings in that previous action, and the judgment pronounced by the Second Division in it, I shall postpone in the meantime what I have to say upon that subject, until I consider the defences upon the merits of the declarator. The defence upon the merits is this, that in respect of the provisions in the defender's favour in the disposition and settlement of William Dunn, and of the trust-disposition of Alexander Dunn, the defender Black is entitled to the dominium utile of the lands of Kilbowie claimed in the summons. And it is further pleaded, that if the pursuer makes up a title to the plenum dominium of the lands of Kilbowie, he shall be bound to convey the dominium utile thereof to the defender Mr Black. The pursuer therefore claims the plenum dominium of the lands of Kilbowie, consisting of an estate of superiority and a dominium utile, which had been consolidated, and form one estate. The contention of the defender is that he is entitled to what was the dominium utile before the consolidation, and that he is entitled to have the consolidation undone for the purpose of restoring that subject to its former condition, and having it transferred to him in property. Now, looking to the terms of the conclusion of declarator, which claims for the pursuer the estate as it stood in the person of the deceased Alexander Dunn at the time of his death, the first point of inquiry is, what that estate was at that time? and the history of it may be very easily stated. The dominium utile of the subject called Kilbowie, which belonged to William Dunn, was held by him under Sir Archibald
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Now, that being so, the dominium utile became the property of Alexander Dunn under his brother's settlement at his death in 1849. Subsequently, upon the 11th of September 1852, Mr Alexander Dunn acquired the superiority of these lands from Sir A. Edmonstone. The superiority therefore was conquest in his person, whereas the dominium utile he obtained by succession to his brother; and having both the estates in his own person, he proceeded to consolidate, and he did it in the usual way,—by first entering himself as heir to the dominium utile by precept of clare, and then making a resignation ad remanentiam in his own hands. We have in the appendix to the present record the deeds by which this was accomplished;—in the first place, the disposition by Sir A. Edmonstone, dated the 11th of September 1852; a procuratory of resignation ad remanentiam on the 22d of December of the same year; and the instrument of resignation following thereon upon the 31st of the same month. By that instrument of resignation the lands of Easter and Wester Kilbowie are resigned, “together with all right, title, and interest which the said Alexander Dunn had or could pretend to the same, in the hands of the said commissioner for the said Alexander Dunn, immediate lawful superior of the said lands and others, ad perpetuam remanentiam, to the effect that the right of property of the foresaid lands and others which stood in the person of the said Alexander Dunn as aforesaid, might be united and consolidated with his right of superiority of the same, and remain inseparable therefrom in the person of the said Alexander Dunn, his heirs and successors, in all time coming.” Now what is the effect of this proceeding? In the first place, the resignation being a conveyance of the subject, is an evacuation of the destination in favour of Mr Black in the settlement of William Dunn. But, in the second place, it appears to me that the effect of this proceeding is to extinguish and destroy the estate of the dominium utile which formerly existed in the person of William Dunn, and was the subject of settlement in his deed, and to put an end to it for ever—to merge it in the superior right, so that at the date of Alexander Dunn's death the only estate with which he was vested was the estate of Easter and Wester Kilbowie, acquired from Sir A. Edmonstone by purchase—no doubt rendered more valuable by the resignation which extinguished the burden of the feu-right, and put an end to it; but still there was the estate in Alexander Dunn at the time of his death, not held of Sir A. Edmonstone, but, on the contrary, an estate which formerly belonged to Sir A. Edmonstone. Now I think the plenum dominium of Easter and Wester Kilbowie, as thus vested in Alexander at the time of his death, was his own estate, and was not an estate derived from his brother William by succession, that consequently it could not be carried by his deathbed deed, and that, quoad that estate, the deathbed deed was reducible at the instance of the pursuer as the heir-at-law, and that if there is no other difficulty in the case, this estate in terms of the conclusions of the summons, belongs to the pursuer. So much for the merits of this action of declarator.
But then it is said upon the part of the defender that this cannot now be maintained by the pursuer, because the matter has already been otherwise decided in the previous action; or if it has not been decided in the previous action, it is still open to consideration in that action, and consequently lets in the plea of lis alibi pendens. In short, the two pleas maintained by the defender, in respect of these previous proceedings, are lis alibi pendens, and res judicata. Now, for the purpose of disposing of these, it is necessary to advert to that original action. It was an action in which Mr Park and his guardian for the time sought to reduce a trust-disposition and settlement of Alexander Dunn, in so far as by that disposition and settlement he gave, granted, and disponed to the trustees, all and sundry lands, tenements, teinds, tacks, mills, and other heritages, and in general his whole heritable estate, including the whole heritable subjects and estate to which, as therein alleged, he succeeded under a disposition and deed of settlement by his deceased brother Mr Dunn, as well as those otherwise acquired by or belonging to, or which might be belonging to him, the said Alexander Dunn, at his death, and also in so far as he thereby pretended to confirm the conveyances and destinations alleged to be conveyed in his brother's settlement. It will be observed, therefore, that in the conclusions of the summons the distinction is taken by the pursuer between the lands which belonged to Alexander Dunn in his own right, being his own acquisition, and those which he succeeded to under the settlement of his brother William. And this distinction is brought out still more clearly in the condescendence, particularly in article 4, which, for the sake of greater precision refers to two schedules appended to the record, in one of which, schedule A, are included the lands which Alexander succeeded to under the settlement of his brother William, and the other includes the lands left by Alexander Dunn, but acquired by him otherwise than by succession to his brother. Now; it is in the second of these schedules that we find the estate of Easter and Wester Kilbowie, and it is entered under this description, “part of the lands of Easter and Wester Kilbowie acquired by Alexander Dunn from Sir Archibald Edmonstone in 1852.” That is the description of the subject in the schedule, and it is quite accurate in its terms for the reasons that I have already stated. The dominiumutile which had belonged to William Dunn no longer existed, but was merged in the estate of superiority. But in the specification of the titles, which is given in another column of this schedule, it is very properly explained in what way the estate was derived from Sir Archibald Edmonstone, and how the dominium utile, which had come by succession from William, was merged in the superiority acquired from Sir Archibald. All that is distinctly brought out. The important fact is, that the lands are entered distinctly, and by specific description, and with reference to the titles in that list of heritages which is said to be acquired by Alexander Dunn otherwise than by succession to his brother. The answers to the article of the condescendence in which this allegation is made
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The result is, that I think judgment ought to he pronounced in favour of the pursuer, in terms of the declaratory conclusions of the summons, and repelling the defences which have been stated by Mr Black against these conclusions.
Lord Justice-Clerk—After the very full and conclusive statement of your Lordship, I have very little to add. I come to the same result without any hesitation. This action of declarator concludes at the instance of the heir-at-law that he has right to the plenum dominium of the lands of Kilbowie. I think there can be no doubt that that action is a competent proceeding, because when he was making up his titles to the lands he has been interrupted by a claimant who alleges a better title, and I think it cannot make the action incompetent that that which proves his right to prevail in his declarator is a previous judgment of this Court. If I could look upon the action of declarator as a kind of supplement to the judgment already pronounced, I think it would be a different question, but in the present circumstances I cannot doubt that a declarator is not only competent but was the proper and appropriate proceeding. The defenders are James Black and Dunn's trustees. James Black appears for his own interest. The pleas put on record by Dunn's trustees relate to the matter of accounting, and with those we need not deal at present. Mr Black does not say that he is entitled to the plenum dominium, which is the subject of this suit. He does not allege that he has a right to the property that is claimed. He certainly does not allege that he has right to the superiority title of Kilbowie, and he thereby admits that that superiority title must pass to the heir-at-law, and substantially that the deathbed deed, as far as that is concerned, has been reduced. But then, he says, that he is entitled to the dominium utile of these lands. There is no estate corresponding to his claim in existence at present, because the original right of the vassal which William Dunn had has been extinguished by consolidation, and consequently the substance of Mr Black's plea is that he is entitled to have that dominium utile again separated from the superiority title, on the terms on which it was held by William Dunn, and conveyed to him. Now I am of opinion, in the first place, that there is no grounds whatever upon which this plea can be sustained; for this simple reason, that although the dominium utile of Kilbowie was contained in William's deed, and fell under the destination, that destination has been evacuated by the consolidation of the dominium utile with the dominium directum; and as the superiority never belonged to William at all, the destination is at an end, and, of course, Mr Black's right to it is at an end along with it. If the question, therefore, had arisen in the former action, and Mr Black had contended in regard to Kilbowie what the heir-at-law afterwards successfully contended with regard to Boquhanran, that although the superiority title—the only title subsisting to the lands—was in favour of the heir-at-law, he was entitled to have it declared that the dominium utile must pass to him under the destination, it is too plain for argument that that plea must have been repelled. But then it is said it is res judicata, and that this estate of the dominium utile is notwithstanding to pass to Mr Black, and that is discovered in the judgment of the Second Division. I can find nothing that warrants that at all. The dominium utile is not mentioned in it, but the title which Alexander Dunn had at his death, and which he conveyed to his trustees under his deathbed deed, was the superiority title, in which was absorbed the dominium utile—the old right of the vassal which had come to an end. Now that never belonged to William Dunn at all, and therefore it cannot possibly be brought under the first limb of the judgment; and as it cannot be brought under the first limb of the judgment, the deathbed deed stands at this moment reduced by the very terms of the second limb of the judgment, carrying with it the superiority title of the lands of Kilbowie which embraced the whole estate. I have thought it right, though only recapitulating what your Lordship has very fully expressed, to state the ground of my opinion upon this matter, because I should not have been disposed in the least to have held that this judgment was only an interim or tentative judgment—a judgment fixing principles to be applied afterwards. It was a judgment on the title in the action of reduction, and that title is either finally sustained or finally repelled, and where it is finally sustained the deed stands reduced at this moment, and there can be no further question about it. Neither should I have been disposed to give the effect contended for to the word “settle,” which I read truly to mean nothing more than this, that the lands fell under the destination in William's deed; but in the view I have expressed it is quite unnecessary to deliver any opinion on that matter. The real perplexity—if perplexity there be—has arisen from the use made of the question in regard to Boquhanran, which in truth had no relation to this question at all. The case of Boquhanran is exactly the converse in one view, because the superiority title there fell under the destination of William's deed, and therefore it was argued that it was necessary to appeal to the judgment in order to make good the undoubted claim of the heir-at-law to the dominium utile. But, in the first place, no such demand was made here by Mr Black, who was the proper person to have made it, if there had been any such claim. But, in the second place, there were no materials for making such a claim, seeing that the destination in William's deed, as regarded the dominium utile of Kilbowie, had been evacuated and entirely extinguished by the consolidation.
On these grounds I entirely concur with the view which your Lordship has taken, but I do not think that there is anything further to be done in the former action. In my opinion it neither requires nor admits of any variation, and I should think that any further procedure in it was unnecessary for the purposes of this case, and incompetent. Therefore, on the whole matter I entirely concur with the view of your Lordship. The conclusions for accounting will of course fall to be disposed of in the Second Division after this judgment is pronounced.
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The object of the action is to have it declared that certain lands called Kilbowie belong to the heir-at-law (represented by the pursuer Mr Barstow) of the deceased Alexander Dunn in pleno dominio, this being maintained by the pursuer to be the necessary sequence of a judgment pronounced by this Court on 27th March 1865, and affirmed in the House of Lords on 23d July 1868.
That action was instituted by the heir-at-law of Alexander Dunn, on the ground that his disposition and settlement was executed on deathbed, and therefore ineffective to carry heritable estate away from the heir entitled to succeed to the heritage, supposing no such deed to have been executed. The heir-at-law of a deceased has no right to challenge a deathbed deed except in so far as it is to his prejudice, that is, in so far as it excludes him from taking heritage which otherwise the law would have given to him. It follows that where lands and heritages are possessed under a settlement destining them on the death of the possessor to substitute heirs other than the heirs-at-law, there is no room for a challenge at his instance of a deathbed deed with regard to such heritages. His title depends upon his interest in the succession, and the want of interest is destructive of his title to impugn the validity of the deed. The only title and interest to challenge the deed are in the heir of provision—the heir substitute entitled to take up the succession supposing the deathbed deed had not been executed.
Alexander Dunn did, at the time of his death, possess lands conveyed to him by the settlement of his brother William, which, upon his death intestate, were destined to heirs-substitute; and he did further possess heritages destined to his heirs and successors, which, on his death intestate, fell to his heir-at-law. This was specially set forth in the record of the action in which the interlocutor to be immediately noticed was pronounced: and schedules of the several lands alleged to stand in the one situation and in the other were specially set forth and referred to in the averments of the parties. The deathbed deed which the pursuer brought under reduction dealt with the whole lands and heritages possessed by Alexander Dunn at the time of his death; and the pursuer, on the ground that no valid substitution settling the lands which had belonged to William Dunn on substitutes other than the heir-at-law had been created to which any legal effect could have been given, supposing Alexander to have died intestate—maintained that, as heir-at-law, he was entitled to have the deed set aside as regarded the whole heritages possessed by Alexander Dunn, no matter whether in the one situation or the other. Such was the nature of the action, its object and effect. The Court held that there was a valid and subsisting substitution created by William's deed to the heritages, by which Alexander was called to the succession in the first place, and which must have received effect on Alexander's death intestate. The consequence was, that Alexander's heir-at-law had no interest, and consequently no title, to set aside the deathbed deed in regard to such heritages. His only title was to have it set aside as to heritages which would have come to him as heir-at-law, for to that extent alone his rights were prejudiced.
The interlocutor pronounced by the Court gave effect to these principles. The pursuer's title was sustained in so far as his rights as heir-at-law were prejudiced—that is, in so far as the deed conveyed lands which Alexander, the granter of the deed, possessed and enjoyed under titles which on his death intestate would have opened the succession to the pursuer as his heir-at-law. But the objections to his title were sustained in so far as the deathbed deed operated as a conveyance of the heritable estate which belonged to William Dunn, and stood settled on substitute-heirs by his disposition and settlement. I do not think that any other view of the interlocutor can be reasonably taken. For my own part, I could not have concurred in an interlocutor having any other meaning or effect; and although a great deal has been said as to the effect of the word “settled ” in this interlocutor, it creates no real difficulty when the questions at issue between the parties, and disposed of by the interlocutor, are kept in view. The punctum temporis for determining the state of Alexander's title to his several heritages, so as to determine the heir-at-law's right to set aside the deathbed deed, is the date of its execution, or rather the date of Alexander's death, for the two dates are the same as to this matter; and hence, in any question as to the application of the finding in the interlocutor that the pursuer had no title to reduce the death-bed deed as regarded the heritage settled by William Dunn's deed, this necessarily falls to be solved by the inquiry, Did Alexander, at the time of his deathbed deed, possess such estate under the destination of them fixed by William's deed? And in any question as regards heritage alleged to be within the operation of the reductive decerniture, this, in like manner, falls to be solved by the title on which such heritage was possessed by Alexander at the date of his deathbed deed. This view of the effect of the interlocutor is alone consistent with the averments of the parties, and specially with the two schedules embodied in the record, and professing to set forth the whole lands possessed by Alexander Dunn, and descendable, should he die intestate, to his heirs-at-law in the one case, and to the heirs called by the substitution in William Dunn's deed in the other.
Taking this to be the correct view of the former action, and of the principle of construction applicable to the interlocutor pronounced in it, the present contention of the pursuer admits of easy solution. The lands in question are those of Kilbowie. On what title was it that these lands were possessed by Alexander Dunn at the date of his deathbed deed? Was it a title under which, had he died intestate, his heir-at-law would have succeeded? I apprehend that no doubt whatever exists on this point. The title completed in his person was such as inevitably to carry the plenum dominium of the lands to his heir-at-law. He had succeeded, indeed, to the dominium utile of those lands under the deed of William, and subject to the substitutional rights thereby created in the event of his death intestate. But by the express terms of that deed he had unlimited powers of disposal of these lands; and it is beyond all doubt that the substitutions created by William's deed might be altered by him at his pleasure, or that he might have disposed of the lands to strangers. But what he actually did was tantamount to this in its legal effect. After his brother's death he purchased the , or superiority of the lands, from the overlord, and took a conveyance thereto in favour of himself, his heirs and assignees. Thereafter he completed his title to the dominium utile, and resigned the same in his own hands as superior in the terms and to the effect your Lordship has explained. He thereby effected a consolidation of the dominium utile with the dominium directum. He no longer had two estates in his person, but one only—the plenum dominium—and in that estate alone, destined to himself and his heirs and successors, he had stood invested since 1852 till his death. The answer, therefore, to the question, on what title Alexander possessed at the date of the deathbed deed, is and can be no other than that it was a title which, on his death intestate, must have carried the estate to his heir-at-law. Hence his interest, and therefore his title, to set aside the deathbed deed.
On this simple view of the question at issue I arrive at the conclusion that Kilbowie is within the heritages to which the reductive decree applies, and it is excluded from those to which the objections to the pursuer's title were sustained. It was heritage possessed by the granter of the deed at the time of his death, descendable to his heir-at-law. As such it was included in the schedule of those lands set forth as standing in the same situation. And at the date of Alexander's death it was not heritage settled by William Dunn's deed of 1830 upon substitute-heirs, by whom it could have been taken on Alexander's death intestate.
One word as to the competency of this declaratory action. A doubt having been stated by the defender as to the true meaning of the interlocutor, and this doubt having been acted on to the effect of opposing the completion of the pursuer's title to the lands of Kilbowie, it was the proper course for the pursuer to bring such an action as the present. In no more suitable or less expensive manner could the judgment of the Court be obtained, whether Kilbowie was under the interlocutor now claimable by him as his exclusive and absolute property. It was so if that view of the proceedings in the former action for which he contended is held to be correct. Assuming that to be the judgment of the Court, he will be free to complete his titles to the plenum dominium of Kilbowie, and he could only obtain such judgment in an action like the present. I concur in the views which have been stated on this point by your Lordship.
After what has been so fully explained with regard to Boquhanran in the declaration, as to those lands contained in the judgment of the House of Lords, no observations from me are necessary. All I shall say is, that in the judgment pronounced as to those lands and the result arrived at by this Court, we acted on the same principles to which we will give effect in this case by decerning in favour of the pursuer.
As regards the defences stated to this action, I see no room for the plea of lis alibi pendens, nor for the plea of res judicata, seeing that, according to the views which I have stated, judgment in the pursuer's favour in terms of the conclusions of declarator will in reality be no more than giving practical hearing and effect, as regards the lands of Kilbowie, to the principles recognised by the findings in the final interlocutor in the former action.
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I am anxious to set out distinctly my views as to the true meaning and effect of this interlocutor, because I look upon it as the hinging point of the present case.
Two different constructions have been put upon this interlocutor. If the view for which I contend be adopted as the sound one, it appears to me that all difficulty in the way of the pursuer's success in the present declarator is removed. If, on the other hand, the more rigid construction for which the defender contends were admitted and pressed as a res judicata against the pursuer, I cannot, as at present advised, see any satisfactory solution of the difficulties that would attach to the pursuer's case. Let me here add that, in a late important debate in the present case, the soundness of this more rigid construction of the interlocutor, and the necessary consequences to which it led in favour of the defenders, were maintained by a distinguished counsel, now a member of this Court, in one of the ablest of the many able addresses which I have heard fall from him.
In the action of reduction the fact of deathbed was admitted. As a necessary consequence, the heir's title and interest to reduce was admitted, in so far as related to such portions of Alexander's estate as had not been derived from his brother William. William had left a settlement which embraced his whole estate, in the whole of which Alexander was appointed the first disponee or institute. But the settlement contained a substitution after Alexander of various stranger substitutes to the prima facie exclusion of his heir-at-law. This last circumstance led to a defence on the part of those substituted heirs of provision, to the effect that the heir-at-law, being excluded from the succession by William's settlement, had no interest to reduce Alexander's deathbed deed, in so far as William's estates were concerned. The heir-at-law made a reply which, had it been successful, would have opened the way to a total reduction of Alexander's settlement. This contention was founded upon certain specialties in William's deed, which, it was argued, deprived it of all feudal effect in regard to the various substitutions.
As to this plea, it is here only necessary to say that it formed the main, if not the only, subject of discussion between the parties in the debate which immediately preceded the interlocutor of 27th March
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The Court were of opinion that the following plea in law, maintained by one of the defenders, stated in its first sentence the law of the case correctly; but in copying the latter sentence of the plea they made an important alteration of one word. That was as follows:—“William Park, in whose right the pursuer sues, has no title to challenge Alexander Dunn's trust-deed and settlement, except in so far as that deed conveys away subjects to which the said William Park would have succeeded as heir-at-law of Alexander Dunn. He has no title to sue the present action as regards any lands and heritages which belonged to William Dunn, and were conveyed by his settlement.” The interlocutor of the Court was this—“Sustain the objection to the title of the pursuer to sue for reduction of the trust-disposition of the deceased Alexander Dunn, in so far as the same operates as a conveyance of the heritable estate formerly belonging to the deceased William Dunn, and settled by his disposition and settlement, dated 17th April 1830. To this extent sustain the defences and assoilzie the defenders. Quoad ultra reduce,” &c.
In a subsequent action of reduction of the deathbed deed, raised at the instance of Dunn Pattison, the discussion arose out of the fact that the whole of William Dunn's substitutions did not at Alexander's death stand unaffected by conveyances executed by Alexander in his liege poustie. It appeared that, in regard to the dominium utile of Boquhanran and also of Kilbowie, Alexander, after having vested himself feudally, both in the superiorities and the properties, had effected a consolidation of these estates by executing in his own hands an instrument of resignation adremanentiam, which instrument contained a conveyance of the dominium utile in favour of himself and his heirs-at-law.
The discussion in Dunn Pattison's case evolved two principles— first, that the consolidation of the two estates did not constitute a final and indissoluable union, but that the plenum dominium was resoluable into its two original elements when at the death of Alexander there was a divergence in the subsisting succession of the superiority and property respectively. Secondly, the Court were of opinion, and pronounced an interlocutor accordingly on 20th July 1866, to the effect that the conveyances embodied in the instruments of resignation evacuated in regard to the dominia utilia the substitutions contained in William's deed. It was thus held that the heir-at-law whose interest as to the dominium utile of Boquhanran would have been excluded by William's deed—had that dominium utile been truly settled by that deed—was let in by the effect of the instrument of resignation to reduce the deathbed deed, and to claim that dominium utile to himself.
A question here occurs. Was this result in favour of the heir-at-law consistent with the interlocutor in the former action? If my interpretation of that interlocutor were adopted, the success of the heir-at-law was not only consistent with, but a necessary consequence of it. But if the more rigid view of that interlocutor were adopted, it went inevitably to exclude the heir-at-law from claiming that dominium utile which had been embraced by William's deed, and conveyed to certain substitutes under a residuary clause. If the word “settled” in the disputed interlocutor was synonymous with embraced—then by the said interlocutor, the interest of the heir-at-law to reduce the deathbed deed was excluded as to this dominium utile, and the deathbed deed must carry the subject to James Black, the disponee of the deathbed deed.
I have mentioned this difference of result as to the dominium utile of Boquhanran, because the head of the Court, in pronouncing the interlocutor of 1866, expressed serious misgivings whether that judgment was not inconsistent with the former. These misgivings were plainly founded on a leaning to the more rigid construction of the earlier interlocutor, against which I contend.
It was, however, suggested that on appeal the House of Lords might set all right by making such an alteration of the earlier interlocutor as would make it consistent with the latter one. And it has been contended that the House of Lords did make that alteration or correction of the former judgment. I am humbly of opinion that this is a mistake. I conceive that the declaration attached by the Court of Appeal to their affirmance was intended as a mere following out of the judgment as soundly construed. The feudal operation dictated by the declaration was in fact the proper, if not the only, way of giving effect to the judgment under the anomalous circumstances under which it had to be carried out.
A similar feudal operation had not to be performed in regard to Kilbowie, and consequently the declaration was confined exclusively to Boquhanran. But supposing I am mistaken in all this—supposing that the more rigid construction of the disputed judgment is the sound one, then as to Boquhanran the judgment was altered, the inconsistency reconciled, and the miscarriage obviated. But then as to Kilbowie, the judgment remains affirmed without alteration or declaration. And if so, what must be its effects as a res judicata in the present action? The result must be that, the dominium utile of Kilbowie being settled on James Black by William's deed, the interest of the heir-at-law to reduce is excluded; the deathbed deed takes full effect, and the residuary disponees in that deed are entitled to this dominium utile. How can it be any answer to these substitutes to allege that the dominium utile no longer exists, being absorbed by the consolidation in the plenum dominium? For the divergence of interest in the succession now supposed renders it competent and necessary (as in the case of Boquhanran), that the two estates should again be separated, in order that each may be bestowed upon the respective parties to whom by right of succession it is due.
I have thus indicated the grounds of my opinion, that if the more rigid construction of the judgment of 1865 be adopted, the pursuer of the present declarator must be unsuccessful in so far as the dominium utile of Kilbowie is concerned.
I shall conclude with a few words in opposition to that construction.
The argument of the able counsel, to which I have referred, in support of that construction, though eminently ingenious, occurred to me at the time to be somewhat of the boldest. He stigmatised the interlocutor of 1865, under the construction of the opposite party, as utterly inefficient,
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Efficiency may be obtained at too high a price. If an interlocutor goes so fast as to overlook essential distinctions between the subjects with which it deals, or if it go so far as to extend an acknowledged and definite rule of law to subjects beyond its true application—if it goes so far in a wrong direction as to require the intervention of the Supreme Court of Appeal to correct its wandering—then efficiency on such terms is little to be desired. Surely that construction of a judgment is to be preferred (if its terms will all admit of it) which, based upon an indisputable, it may be self evident, legal position, applies it with discrimination to the subjects of the suit, distinguishing between such as admit of its proper application, and such other standing in a different situation, so as that to apply it to them were to prevent the rule of law itself, and defeat the justice of the case.
If to such interlocutor inefficiency or truism could be imputed, I only wish, my Lords, that all our judgments could be so characterised.
I shall sum up in two sentences the grounds of my opinion in favour of the pursuer of this declarator.
I hold that the dominium utile of Kilbowie was not settled by William's deed, under a sound construction of the interlocutor of 1865; that, consequently, the interest of the heir-at-law to reduce not being excluded, the deathbed deed as to this dominium utile, as well as to the dominium directum of Kilbowie, stands reduced by that judgment, and that the curator ought to be allowed to make up his ward's titles as to the plenum dominium.
I think the judgment which we are now called upon to explain in this process of declarator was in itself a final and exhaustive judgment. I don't say that the subsequent proceedings in the House of Lords as far as Boquhanran is concerned may not make it our duty,—I rather differ from the Lord Justice-Clerk on that point,—to do something in that process in order to apply the judgment which was pronounced in the House of Lords as far as regards the lands of Boquhanran only, because if that judgment be not so applied with that qualification, and parties allowed an opportunity of asking anything to be done that may preserve their rights, our original judgment would go out and be extracted simpliciter without the limitation and explanation or alteration made by the House of Lords.
Lord Justice-Clerk—I so intended.
Lord Neaves—With reference to the lands of Kilbowie, I see no warrant and no competency in going back to that cause again. I don't say that it might not have been competent in that process to have made a more detailed interlocutor instead of reducing, or refusing to reduce, as to certain lands according to a certain description. That depended on the circumstances. The Court may pronounce a long interlocutor, or it may pronounce a short interlocutor, but it was meant to exhaust the case, and I think it did exhaust the case by using language which, I believe, was perfectly intelligible to both parties at the time, and which I suspect would never have been brought into controversy at all if the other matter of Boquhanran, which arose out of another process, had not raised some little difficulty. But if it was not a final interlocutor that was pronounced by us, it could not have been appealed. It would not have been competent to go to the House of Lords on a mere interlocutory judgment if it was required from us to define in detail all the lands that fell under the one branch and under the other. We did not mean to do so; the parties did not ask us to do so; and the House of Lords have not told us to do so. The interlocutor stands as an interlocutor reducing by description, but by description having reference to the pleadings of parties and to the state of the titles as known, and in a manner capable of being extracted. If that were a depending process, there would be a great deal in what Lord Deas has said, considering it to have been originally a final judgment intended to exhaust the cause, and doing so, and having been taken to the House of Lords as a final judgment, and no impeachment or encroachment made on it, except for the single qualification as to the lands of Boquhanran, which stood in so very special and peculiar a position. I think we cannot go back on it at all. But, then, is it competent to bring this declarator? I shall only say on this subject, that I consider it to be a general rule of the Law of Scotland that by means of a process of declarator you can get anything made clear that is obscure or is said to be obscure. I see no exception to that in this case. It might have been done otherwise. It is possible that there might have been a competition of brieves, but it seems to me perfectly competent ab ante to raise the general question the moment the difficulty is ascertained and the dispute arises, and that it may then be cleared up. Why should we not be able to decide in a declarator what we could decide in any other process of an executry nature in carrying out this matter, which might be more conveniently done them by discussing it in itself, and letting the parties shape their conduct accordingly.
On the merits I shall add very little. I consider that the real nature of the different properties in dispute was decided in a manner that gave room for no doubt. I look on the defence of Mr Black, the party principally concerned in this matter, as being quite explicit, and intended to be so with reference to this point. The first part of his plea unquestionably is so. The objection was,—you, the heir-at-law of Alexander Dunn, have no title, because you have no interest, to reduce the deathbed deed, except as to those subjects to which you would have succeeded as heir-at-law. That is the first part of the plea, and it is quite explicit. There is another part of the plea which says he cannot do so as to those lands that are conveyed by Mr Dunn's settlement; and Lord Benholme says that is an expression that might have gone too far. I do not think that. I do not think it would have made much difference in my view if
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I would only remark, with reference to some observations which have been made, that I find no difficulty created by the terms of the judgment of the House of Lords. I consider the plenum dominium of the lands of Kilbowie to have been undoubtedly comprised within the reductive clause of the former judgment of the Court. It was so, I think, in formal expression, having regard to the shape of the record and the schedules attached to it. It was unquestionably so in substance and sound construction; as the plenum dominium of Kilbowie had neither remained settled by William Dunn's deed at the date of Alexander's death, nor in a sound legal sense was contained in William Dunn's deed at all. The judgment so comprising Kilbowie within its reductive clause, remained untouched by the House of Lords. It was proper, as their Lordships thought, to insert a special declaration as to Boquhanran, because on that point the House were introducing either a variation on the interlocutor, or at all events a very necessary explanation of it, bringing distinctly out the intended separation between the dominium directum and the dominium utile. In regard to Kilbowie, where no such separation was to be made, the judgment remained exactly as the Court below had left it; and exactly what it then imported. The judgment as to Kilbowie did not require either to be varied or explained; and remains now for enforcement, as it did when your Lordships formerly pronounced it. But the judgment being generally expressed, and its meaning being brought into controversy, I can see no objection to the present declaratory action, as called forth by the special circumstances of the case; and in that action I think the pursuer should prevail, so far as regards the conclusions now brought before us.
Agents for Pursuer— Murray, Beith & Murray, W. S.
Agents for Defender James Black—J. & R. D. Ross, W.S.
