United Kingdom House of Lords Decisions

This is an appeal from an interlocutor of the First Division of the Court of Session.

The late Hon. Archibald Fraser was heir of entail of the estate of Lovat, and proprietor in fee-simple of the lands of Abertarff and others, in the parish of Inverness, in the purchase of which a grant to him under the Privy Seal, vested in trustees, had been applied. He was also possessed of a considerable amount of personal property. In the year 1805 he executed a deed conveying those fee-simple lands to himself and his heirs-male, and to any subsequent series of heirs which he might name by writing under his hand. His eldest son, Colonel Simon Fraser, being then dead, the respondent, his grandson, was the sole descendant of the family. On the 25th June 1808, Archd. Fraser executed in favour of the respondent a general disposition of various subjects lying in the burgh of Inverness and the village of Campbeltown, and of all his property, heritable and moveable, which he might leave undisposed of at the time of his death; the deed also contained a declaration that its revocation should not be inferred from implication or construction, but only from an express writing. Thereafter, on the 15th of August in the same year, he executed a strict entail of the lands of Abertarff and the lands of Auld Castlehill, of which he was owner in fee-simple in favour of Thomas Alexander Fraser of Strichen, now Lord Lovat, and a certain series of substitutes, amongst whom the respondent was not included, under burden, however, of all his just and lawful debts due and addebted, or which might be due and addebted by him at his death; which said debts he declared should in noway affect or diminish his executry, or other funds, property, or effects, unless such executry should be given and conveyed by him to the said Thomas Alexander Fraser of Strichen and the other substitutes mentioned in the deed. This deed contained a reservation of power to revoke or alter. On the 2d July 1812, Archibald Fraser executed another deed, which proceeded upon the narrative that he had some years ago executed an entail of the lands of Abertarff and others, and that he intended in the exercise of the power therein reserved to alter and revoke that deed to a certain extent. He accordingly disponed the lands to the heirs of his body, whom failing to the respondent and the heirs-male of his body, whom failing to the other heirs and substitutes mentioned in the deed of entail, but always with and under the several provisions, conditions, burdens, &c., contained in that deed, and under certain other additional provisions — viz., that the respondent and his heirs-male succeeding to him should take the name of Archibald, and that he should disencumber the lands in the parish of Inverness of the debts affecting them out of the executry, or by burdening the other lands, In April 1813, Archibald Fraser executed an entail of the lands of Castlehill in favour of the respondent; and on the 2d of August in the same year he executed a general conveyance by which he disponed to certain persons as trustees, tutors and curators, of the respondent, all the lands, houses, heritages, and heritable subjects (that is to say, all the lands not included in the deed of entail), and all the goods, gear, effects, and moveable subjects of every description, which he had destined, given, disponed, and conveyed to his grandson, the respondent. Archibald Fraser died in December 1815, and the respondent succeeded to the estate of Abertarff, and also as general disponee and residuary legatee to the whole fee-simple estates and executry which belonged to the deceased.

Various litigations arose between the appellant,

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Lord Lovat, and the respondent, as to the import of the deeds above mentioned, and in particular as to whether the respondent was bound to execute an entail of the lands of Abertarff and others specified in the deeds of entail of 1808 and of 1812. This question was raised by Lord Lovat in 1818, and the Court of Session, on the 24th of June 1823, assoilzied the curators of the respondent, who defended the action, from the conclusions of the summons. In 1824, however, the Court altered this decision, and found that the respondent was bound to execute an entail, and that finding was affirmed on appeal to the House of Lords in 1842. Previous to 1828 the respondent had made up his title as proprietor in fee-simple of all the lands disponed to him, whether under the deed of nomination of 1812, or the general disposition of June 1808. In that capacity, and while the question whether he was heir of entail or owner in fee-simple was pending, he constituted various burdens upon those lands. He also paid the debts of Archibald Fraser, amounting to £6186, os. 7 1 4d., and incurred £2791, 1s. 9d. in law expenses in ascertaining and adjusting the claims brought against him.

On the 31st of December 1851 (after the decision that he was only heir of entail of the lands), Abertarff (the respondent) raised this action of declarator against Lord Lovat, and the other substitute heirs of entail, concluding to have it found and declared that all the lands included in the deed of entail of 1851 were held under the burden of the just and lawful debts of the Hon. Archibald Fraser, due and addebted by him at the time of his death, and in particular of certain specified debts, amounting to £6186, os. 7 1 4d.; and that the said lands and estates were liable in payment of the said debts, and might be attached and sold therefor; and further, that the pursuer was entitled to be relieved out of the lands so entailed of the sum of £2791, 1s. 9d., as the expenses of litigation incurred by him bona fide and beneficially for the defenders as heir of entail. On the 17th of June 1853, Lord Anderson (Ordinary) found that by the deed of entail of 1851, prepared under the directions of the Court of Session, which directions were confirmed on appeal to the House of Lords, the lands libelled were held under the burden of payment of all the just and lawful debts of the late Archibald Fraser, and this judgment was affirmed by the First Division. On the 20th November 1855, Lord Handyside (Ordinary) found that the debts specified in the summons, and amounting to £6186, os. 7 1 4d., were just and lawful debts due by the said Archibald Fraser; but that the pursuer was not entitled to relief out of the entailed lands of the sum of £2791, 1s. 9d. of expenses incurred by him in litigation. Upon reclaiming notes, the Lords of the First Division recalled the latter finding of the Lord Ordinary, and remitted to him to allow parties an opportunity of substantiating their respective averments as regarded the claim for £2791, 1s. 9d. On the 8th of June 1858, Lord Kinloch (Ordinary) found that the entailed lands were subject to certain of the expenses claimed for litigation; and the pursuer having produced discharges of the encumbrances he had created over the entailed lands during the time he supposed himself to be proprietor in fee-simple, the Lord Ordinary, on the 17th June 1858 found that the entailed lands were liable in payment of the sum of £6186, os. 7 1 4d. The Lords of the First Division found that the reclaiming note for Lord Lovat was not insisted in as regarded Lord Kinloch's interlocutor of 17th June 1858, and therefore refused the desire of the reclaiming note, in so far as it prayed for the recall of that interlocutor; recalled the interlocutor of the 8th of June 1858, and in place thereof found the pursuer entitled to expenses of litigation to the extent of £331, 4s. ( 21 D. 1154.

Lord Lovat appeals against the whole of this judgment, while Mr Fraser of Abertarff, in a cross appeal, complains of so much of it as limits his right to recover the expenses of litigation to the sum of £331, 4s.