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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Peter Speirs, Esq. v. Sir Alexander Campbell, Bart. [1791] UKHL 3_Paton_201 (5 March 1791)
URL: http://www.bailii.org/uk/cases/UKHL/1791/3_Paton_201.html
Cite as: [1791] UKHL 3_Paton_201

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SCOTTISH_HoL_JURY_COURT

Page: 201↓

(1791) 3 Paton 201

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

No. 46


Peter Speirs, Esq.,     Appellant

v.

Sir Alexander Campbell, Bart.,     Respondents

House of Lords, 5th March 1791.

Subject_Freehold Qualification — Trust Deed — Apparent Heir's Rights. —

Held, although a deceased father had left his whole estate to trustees, who were infeft, that his heir was still entitled to be enrolled as possessing a good freehold qualification,—the possession of the trustees being for his behoof, and their possession being considered as his.

The respondent having claimed to be enrolled as a free-holder

Page: 202↓

holder for the county of Stirling, in order to vote for the election of a member of parliament; it was objected to his claim, that his father having conveyed his estate to trustees for the purposes mentioned in the trust deed, he was entirely divested. To this objection it was answered; That the trustees named by his father had no possession but for his behoof, and that their possession under their base infeftment was to be accounted his possession: that it was a proposition founded in the words of the act 1681, c. 20, that a trust deed, though granted for the behoof of crediters, does not deprive the truster of his freehold qualification, that act having expressly declared, “that no person infeft for relief or payment of sums shall have vote, but the granters of the said rights, their heirs and successors.” That so standing the case, the respondent would have been entitled to be enrolled, although the trustees had been publicly infeft upon a charter of resignation from the crown; and, multo magis, must be so entitled, when it was considered that these trustees were only base infeft. It was also objected, that the valuation of the lands on which he claimed being below £400, he had no right to be enrolled. It was answered, that the valuation of the Commissioners of Supply was evidence to the contrary, and it must stand good until reduced.

Dec. 14, 1790.

The Court of Freeholders rejected his claim to be put on the roll; and he complained to the Court of Session. The Court of Session found, “that the meeting of freeholders did wrong in refusing to put the complainer upon the roll of electors for the county of Stirling; and therefore ordain his name to be inserted in the roll in its proper place.” *

Against this interlocutor the present appeal was brought to the House of Lords.

After hearing counsel, it was

Ordered and adjudged that the interlocutor be affirmed.

Counsel: For Appellant, Alex. Wight, Sylv. Douglas.
For Respondent, Geo. Ferguson, J. Campbell.

_________________ Footnote _________________

* Opinions of the Judges:

Lord President Campbell.—“There are two objections; 1st. Title; and, 2d. Valuation.

“As to the first, no want of possession. It is a lucrative succession, though under entail and trust. Sir Alexander represents his father—lives at Gargunnock, and receives from the trustees that portion of the rent which is allowed him. The entail dispones the estate in his favour as institute; and he is apparent heir of investiture. The possession of the trustees is his possesion; and civil possession is sufficient. But the objection is, that his title is defeasable, as the trustees may sell to a purchaser, who may execute the procuratory. The renunciation of little consequence, as it only binds them personally, and it is not recorded in the register of sasines; and even if it was, I doubt if it be a feudal method of securing Sir Alexander in the superiority. But, independent of this renunciation, can it be said that he is divested of the right of apparency, by a settlement in his own favour, or, which is the same thing, in trustees for him, the dominium directum still remaining in hereditate untaken up? The objector must be able to show that a trust conveyance, for the purpose of management, and for the heir's own behoof, quoad the reversion, is an alienation from the heir.

“Sir Alexander is entitled to take a charter upon the procuratory in the entail, or, which is the same thing, as to third parties, to be served upon the former investitures, and so to complete the feudal right in his person, which is not inconsistent with the feudal right being also in the trustees. Query: Would not his wife be entitled to her terce, or to the jointure allowed by the entail, upon his making up such titles? Frazer of Lovat in a similar situation. Suppose the trustees also infeft upon a charter from the crown, would this entirely denude him of the feudal right of his estate, and his wife of the terce? What if Sir James was living, and had put his estate under trust in his own life, would this have been a good ground for turning him off the roll? Case of Sir Lud. Grant is very much in point, also case of Crawford in Renfrewshire, who was in worse circumstances. Infeftment is really in security till a sale actually takes place, which will of course denude him, but, in the meantime, the estate belongs to nobody but him.

As to the valuation, the division in 1740, if done by a private meeting, was done without evidence of any kind. The procedure in 1753 more regular, and has continued the rule for near forty years. See case of Shaw Stewart 1780, Wight, p. 201, where twenty years' acquiescence was held sufficient against a much worse objection. But there is no ex facie objection to the decree of 1753, and therefore it must continue the rule until it is reduced. The original valuation was in cumulo, and doubt if the division 1740 could be regarded. The Commissioners of Supply entitled to act to the best of their judgment, and not tied down to such rigorous rules.”

Lord Justice Clerk.—“As to the valuation, I must say that it brought him under £400. As to whether it be null, may take under consideration the valuation books. I incline to think it was a public meeting. But the question in 1753 was, how they should proceed.? But, having the whole before them, judge it better to take original cumulo valuation. They judged rightly. The proceedings in 1740 were null for want of proof. Supposing they had been wrong, yet, as it has been acquiesced in for thirty-seven years, objection elided.”

Lord Eskgrove.—

“The division in 1740 is clearly null, but that of 1753 continued the rule for 37 years, which bars objection.”

Lord Dreghorn.—“Of same opinion.”

Lord Justice Clerk.—“As to trust, I am clear that there is nothing in the objection. In adjudications, the reverser has the substantial right and interest, till the property is evicted. In rights in security the same rule holds.—A power to sell is common, but makes no difference. The possession of the creditors and trustee, is the possession of the truster. Every shilling that is uplifted, goes to the payment of Sir Alexander's debt.”

Lord Monboddo.—“Of same opinion.”

Lord Gardenstone.—“Of same opinion.”

Lord Eskgrove.—“Of same opinion.”

Lord Swinton.—“Of same opinion.”

Lord Rockville.—Of same opinion.”

Vide President Campbell's Session Papers, Vol. lix.
1791

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