United Kingdom House of Lords Decisions

The true relation of the appellant to his superior, whether that of an heir of the standing investiture, or that of a stranger to it, can only be ascertained by reference to the titles under which these parcels of land were acquired and held by the predecessors in title whom the appellant represents until they became vested in his person. I shall therefore endeavour to describe, as briefly as may be consistent with accuracy, the state of possession and title since their acquisition during the last century by the appellant's ancestor Sir John Pulteney, afterwards Earl of Bath.

In the year 1768, Dornock, which then belonged to John Douglas of Dornock, and Woolcoats which belonged to him in liferent and to his son Archibald in fee, both father and son being duly entered with the superior, were exposed for judicial sale, and were purchased by one William Alexander, who obtained a decree of sale in virtue of which he was base infeft in Woolcoats. On the 7th April 1775 he conveyed both parcels, and assigned the decree of sale to Sir William Pulteney, who also took base infeftment in Woolcoats. Upon his death the lands were possessed by his nephew Sir John Lowther Johnstone without expeding a feudal title.

The third parcel—the lands of Torbeck-hill—were in June 1765 disponed by Margaret Graham, who was fully entered with the superior, to David Armstrong of Kirtleton, whose personal right was brought to judicial sale by his creditors, and was purchased by Sir William Pulteney. He obtained a decree of sale on 27th January, under which he possessed without taking infeftment, and on his decease the lands passed into the possession of his daughter and heir of line, Henrietta Laura Pulteney Countess of Bath, upon whose death they passed to her cousingerman Sir John Lowther Johnstone. Neither the Countess nor her successor made up a title or was infeft.

On the 10th December 1810 Sir John Lowther Johnstone, being then in possession of all three parcels under his personal title, conveyed them, along with the rest of his Westerhall estates, to David Cathcart and Masterton Ure, but that in trust only for payment of his debts, and of annuities to himself and his wife, and the fulfilment of any provisions contained in deeds of settlement executed or to be executed by him. The power of the trust disponees to deal with the fee of the trust-estates was limited to selling such portions thereof as might be deemed necessary, with the consent of the truster expressed in writing. They were bound to reconvey—the debts being paid off—on or before the 11th November 1814, and after that date whenever required to do so, whether his debts were paid or not. In the event of the truster's death before reconveyance, and of his heir being then in minority, it was declared that the trust should subsist until his whole debts were paid off, the heir in the meantime receiving an allowance.

Sir John Lowther Johnstone, the truster, died in 1811, leaving a deed of settlement by which he conveyed his estates, including Dornock, Woolcoats, and Torbeckhill, to himself in liferent, and to the heirs-male of his body and certain heirs-substitute seriatim in fee, subject to family provisions which were implemented by his trustees.

The trustees appointed by the deed of 1810 appear to have entered at once upon the administration of the trust-estates, which they carried on jointly until the death of Mr Cathcart in 1829. After the death of the truster they proceeded to complete a title by adjudication to Dornock and Woolcoats, in which they were duly infeft, and on payment of a composition they obtained from the respondent's predecessor a charter of sale, adjudication, and confirmation dated 27th March 1815, which expressly confirms the base infeftments taken in Woolcoats by William Alexander and his disponee Sir William Pulteney. They next adjudged and were infeft in the lands of Torbeckhill, and then entered as singular successors with the late Duke of Buccleuch and Queensberry, obtaining from his Grace a charter of adjudication in implement dated 15th February 1828.

It is proper to notice here that the special case contains express averments to the effect that Sir John Lowther Johnstone was duly infeft in Dornock and Woolcoats and also in Torbeckhill. These statements appeared to your Lordships to conflict with the tenor of documents of title which are incorporated with and form part of the case, and your Lordships therefore required the parties either to explain the discrepancy or to inform the House of the true state of the facts. The result was that the parties by their counsel concurred in stating to your Lordships that the statements in the case were inaccurate, and that with the single exception of Sir William Pulteney's infeftment in Woolcoats no sasine was taken in any of the three parcels either by Sir William Pulteney or by any ancestor and predecessor of the appellant.

At the death of the truster Sir John Lowther Johnstone in 1811 the heir entitled to succeed was his eldest son Sir Frederick George Johnstone, the appellant's father, who died in 1841 without having made up any title to the lands. Some years after his decease the appellant raised an action in the Court of Session for the purpose of compelling the surviving trustee of his grandfather to denude in his favour, and the conveyance upon which the appellant has been infeft and obtained a statutory entry with his superior was executed in obedience to a decree of the Court.

It thus appears that the appellant does not represent any predecessor in these three parcels of land who was during his lifetime an entered vassal. He is not the heir of the trustee from whom he derives his feudal title, and he is not the heir either of the Douglases of Dornock or of Margaret Graham, who were or had been the last entered vassals at the dates when the trustees of Sir John Lowther Johnstone completed their titles to Dornock, Woolcoats, and Torbeckhill by obtaining charters of confirmation from the superior following

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