Scottish Court of Session Decisions

This was an action at the instance of the surviving accepting and acting trustees and executors

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of the deceased John, second Marquess of Breadalbane, against John Alexander Gavin Campbell of Glenfalloch, heir of entail in the entailed lands and estate of Breadalbane. The summons concludes for payment (1) of the sum of £5202, 16s. 2 3 4d., being the balance of the sum of £25,202, 16s. 2 3 4d., contained in five decrees of declarator of entail improvements pronounced in favour of the said deceased John, second Marquess of Breadalbane; and (2) of the sum of £21,354, 16s., being three-fourths of the sum of £28,473, 1s 4d. expended by the late Marquess in improvements upon the said lands and estate of Breadalbane, and contained in and due by a decree of, declarator dated the 26th May 1855; and (3) of interest at the rate of five per cent. per annum of the said sums of £5202, 16s. 2 3 4d. and £21,354, 16s., from the date at which the right of the defender to the said entailed lands commenced until payment of the said respective sums.

By interim decree of the Lords of Council and Session, dated 17th July 1858 and 20th July 1859, in a petition and application presented by the said Marquess in virtue of the provisions of the Entail Amendment Act, 11 and 12 Vict., c. 36, their Lordships, of the date first mentioned, found that the petitioners obtained decrees of the Court, as specially mentioned in the petition, prior to the 14th August 1848, finding that he had expended on improvements on the entailed lands and estate of Breadalbane and others mentioned in the petition, of the nature contemplated by the Act 10 Geo. III., c. 51, sums amounting in all to £33,603, 15s. 2 1 2d., and declaring three-fourths of the same, being in all £25,202, 16s. 2 3 4d., to be a debt against the heirs of entail who might succeed the petitioner in the said estate. They further found that the said sum of £33,603, 15s. 2 1 2d. did not exceed the amount authorised by the statutes, and authorised the petitioner to grant a bond or bonds of annual—rent, corresponding to the said sum of £25,202, 16s. 2 3 4d., over the said lands, or a portion thereof, or bonds and dispositions in security, one or more, charging the fee and rents of the said lands, or a portion thereof, with two-third parts of that sum, being £16,801, 17s. 6d., all in terms of the statute. Under authority of the foresaid decree, the said Marquess executed a bond of annualrent, dated the 12th, and recorded in the General Register of Sasines the 22d, July 1859, in favour of the Colonial Life Assurance Company for £20,000; and their Lordships, of second date of the said decree, approved of the said bond of annualrent, in favour of the Colonial Life Assurance Company, for annualrents effeiring to the sum of £20,000 part of the sums of £25,202, 16s. 2 3 4d., as executed. The balance of £5202, 16s. 2 3 4d., concluded for in the summons as remaining due under the five decrees of declarator referred to, was not borrowed, or bond granted therefor, under the authority of said interim decree, or otherwise, during the lifetime of the Marquess.

On the 15th June 1854 the late Marquess, as proprietor, and heir of entail in possession of the said lands and estate of Breadalbane, raised an action of declarator of entail improvements executed by him upon said lands in terms of the Act 10 Geo. III., c. 51, in which action final decree was pronounced upon the 26th May 1855. By this decree it was found and declared that between the terms of Martinmas 1840 and Martinmas 1852 there was expended for improvements upon the said lands in terms of and of the nature contemplated by that Act, sums amounting together to £28,473, 1s. 4d.; of which sum three—fourth parts, or £21,354, 16s., was declared to be a debt against succeeding heirs of entail; and the next heir entitled to succeed was decerned on his so succeeding to make payment to the heirs, executors, or assignees of the said Marquess of the said sum of £21,354, 16s., with interest from the period at which his right commenced, and in all time thereafter during the not-payment.

The total amount of the sums sought to be recovered in the present action was £26,557, 12s. 2 3 4d., with interest as above stated from the date at which the defender's right to the estate of Breadalbane commenced.

The pleas-in-law for the pursuers were:—

1. The pursuers, as surviving and accepting trustees and executors under the trust-disposition and settlement of the late Marquess of Breadalbane, and in virtue of the confirmation expede by them as executors aforesaid, are now in right of the various decrees of declarator libelled on in the summons.

2. The pursuers are not precluded from insisting for payment of the sums contained in the various decrees libelled, in respect of the petition and proceedings therein adopted by the late Marquess under the Act 11 and 12 Vict. c. 36, or by the fact of the late Marquess having partially exercised the faculty obtained by him under that application.

3. The whole claims originally competent to the late Marquess, or those in his right under the foresaid decrees, are still undischarged, and available to the pursuers, except to the extent thereof for which the bond of annualrent libelled was granted.

4. The decrees libelled being valid and effectual, and in conformity with the provisions of the Act 10 Geo. III., c. 51, and the whole pleas of the defender being unfounded, the pursuers are entitled to decree in terms of the conclusions of the libel, with expenses.

The pleas-in-law for the defender were:—

1. As the requisition made to the defender is not in the terms required by the statute 10 Geo. III., c. 51, the present action is incompetent, or at least premature.

2. Decree cannot competently be pronounced in this process until judgment is obtained in the defender's favour in the action between him and Lieutenant Campbell before mentioned.

3. In respect of the proceedings adopted by the late Marquess, in virtue of the 11 and 12 Vict. c. 36, and the authority granted to him under his said petition, and his acts and deeds under said authority, the pursuers, as his executors, have thereby been and are excluded from demanding from the defender payment of the alleged improvement debt, or any portion thereof, as concluded for in this action.

4. The granting of the said bond of annualrent by the late Marquess of Breadalbane operated as a discharge of all claims on account of the alleged improvements said to be contained in the first five decrees of declarator libelled on, save and except the claims under the said bond of annualrent itself.

5. The late Marquess of Breadalbane having availed himself of the provisions of the 11 and 12 Vict. c. 36, and, under the petition presented by him to the Court, obtained authority to charge his entailed estates, in virtue of said statute, for the alleged amount of improvement outlay of £25,202,16s. 2 3 4d., must, to the extent to which he failed to avail himself of said authority, be held to have discharged, and has discharged, the defender, and the subsequent heirs of entail, of all claim for, or

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in respect of, the sum of £5202, 16s. 2 3 4d. concluded for.

6. The late Marquess of Breadalbane having for upwards of four years failed to exercise the statutory power or faculty acquired and possessed by him, during this period, of charging his entailed estates for, or in respect of, the said sum of £5202, 16s. 2 3 4d., and having died without exercising said power, all claim on the part of the pursuers or others against the defender for or in respect of said sum, or any part thereof, has been thereby extinguished.

7. In any view the defender is not liable in payment of the said sum of £5202, 16s. 2 3 4d. to the pursuers, as concluded for, in respect that none of the pretended decrees of declarator mentioned in the 7th article of the defences is a valid or effectual decree of declarator in terms of the 10 Geo. III. c. 51.

8. As the alleged decree of declarator, dated 26th May 1855, is not a decree, and is an invalid decree, in conformity with the provisions of the 10 Geo. III. c. 51, the pursuers are not entitled to decree for payment of the said sum of £21,554, 16s., at least they are not entitled to such a decree under the conclusions of the present action.

9. On the assumption that the decrees of declarator founded on are valid and effectual decrees under the 10 Geo. III. c. 51, the present action is irrelevant and unnecessary.

10. By instituting the action of 2d March 1865 the pursuers must be held to have abandoned the present process, at least they are not entitled to plead the finality of the decrees libelled on; and the defender is entitled to urge, and to have effect given to, all objections to the alleged improvement expenditure referred to in these decrees, or any of them.

The Lord Ordinary (Ormidale) pronounced the following interlocutor, in which he found for the pursuers:—

Edinburgh, 14 th November 1865.—The Lord Ordinary having heard counsel for the parties, and considered the argument and whole proceedings, Finds (1) that the pursuers, as the trustees and executors of the late Marquess of Breadalbane, are in titulo to sue the present action; (2) That the grounds of action have been sufficiently established; and (3) That the pleas stated by the defender on record, and maintained by him in defence to the action, are ill-founded: Therefore repels said pleas, and decerns in terms of the conclusions of the summons: Finds the pursuers entitled to the expenses of process incurred by them: Allows them to lodge an account thereof, and remits it when lodged to the Auditor to tax and report.

R. Macfarlane.

Note.—The title of the pursuers to sue the present action was not disputed. But the defender maintained that the action was in itself untenable, in respect of a variety of objections of a very critical and technical nature. These objections may be classed under two heads—1st, Those applicable to the former decrees of declarator libelled on; and 2d, Those subsequently arising, and therefore more especially applicable to the present action.

1. The objections to the validity of the former decrees libelled on are referred to in the Record in articles 7, 8, and 9 of the defender's statement, and are to the effect—(1) That the improvements constituted by the decrees are not said in the decrees to have been of the nature or character required by, and specified in, the statute 10 Geo. III. cap. 51; (2) That the decemitures in the decrees are contrary to, and inconsistent with, the provisions of the 10 Geo. III., cap. 51; and (3) That the decree of 26th May 1855, proceeds on the false assumption of the other decrees being valid, and that the outlay mentioned in them, as well as in the decree of 26th May 1855 itself, had not been bona fide expended in improvements authorised by the statute. In support of these allegations the defender has stated two pleas, the 7th and 8th.

The Lord Ordinary is of opinion that the objections thus recorded are ill-founded and wholly inadmissible as defences to the present action. It is impossible, he thinks, to read the exact decrees without being satisfied that the improvements were of the nature and character required by the statute 10 Geo. III., cap. 51, and that this is sufficiently set out in the decrees themselves. All of the decrees bear express reference to the statute, and obviously proceed in virtue and in terms of its provisions, and all of them, except the last, conclude with the statement, in so many words, that the whole matter was conform to the statute, and its requirements as regards intimations, accounts, and vouchers. As for their containing decemitures for the sums mentioned in them, the Lord Ordinary cannot hold that this is contrary to or inconsistent with the statute. No particular statutory provision was cited to that effect, and it was not explained how the decemitures referred to were calculated in the slightest degree to prejudice the defender. The Lord Ordinary could not therefore feel himself justified in holding the decrees to be null and invalid on any such ground; the more especially as he observes they are in conformity with the usual style—Juridical Styles, vol. iii., p. 202. Indeed, the whole of this matter appears to have been decided by the Court adversely to the defender's pleas in Cameron or Campbell, 7th December 1864, 3 Macpherson, 195.

In regard again to the objection that the improvements mentioned in the decrees are not of the nature sanctioned by the statute, it is plain that it cannot be entertained in existing circumstances, or as a defence to the present action. All the decrees became long ago final, in terms of the 26th section of the statute, and no reduction or other process of review has ever been brought of them. This of itself affords a complete answer to all objections to the decrees, unless indeed it could be shown that they were ex facie so irregular and incompetent as to require to be dealt with as wholly without the protection of the statute. The Lord Ordinary can see no ground for so dealing with the decrees, or any of them.

2. Even supposing the former decrees to be in themselves unchallengeable, the defender objects to their now being given effect to in the present action as concluded for by the pursuers, on the grounds referred to in his 1st, 2d, 3d, 4th, 5th, 6th, 9th, and 10th pleas in law. (1) The nature of the objections to the requisition on which the defender's first plea is founded is nowhere stated in the Record, the only reference to the matter being in his answer to the 22d article of the condescendence. But it was explained at the debate, that all that was meant by the objection was, that as the defender, on whom the requisition was made, was and is still only claiming to be heir to the late Marquess, the requisition upon him was made prematurely, or, at any rate, that it was premature to insist for decree. In truth, therefore, the objection, as so explained, amounts to nothing as regards the requisition and validity of the present action, especially keeping in view the defender's answer to art. 19 of the condescendence,

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where he admits that he “is the heir of entail entitled to succeed to the entailed estates of Breadalbane, including the lands and estates mentioned, and that as such he has succeeded to and is in the possession of these estates, and of the rents and profits thereof;” and also keeping in view that the pursuers had, in terms of the 20th section of the Act, no alternative but to serve their requisition, and bring this action as they have done. (2) As to the incompetency of pronouncing decree against the defender till ultimate judgment of the Court of last resort has gone in his favour in the action betwixt him and Lieutenant Campbell, which is the effect of the defender's second plea, the Lord Ordinary has heard nothing in support of it to satisfy him that it is well-founded. Admittedly the defender is, and has been ever since the death of the late Marquess, in possession and receipt of the rents of the entailed estates, and he must have already drawn a great deal more than the sums now concluded for. Whether he may in the event of his ultimately failing in the litigation with Lieutenant Campbell, be entitled to relief in some way or other, of any sum he may be obliged to pay under the decree in the present action, is a question which cannot now be entered into. (3) The 3d, 4th, and 5th pleas of the defender are all very much to the same effect—viz.,. that the present action is excluded, and that the rights and claims now attempted to be enforced must be held to have been departed from by the proceedings of the late Marquess of Breadalbane under the 11th and 12th Victoria, cap. 36. But as no authority in support of this view was cited by the defender, and as the Lord Ordinary cannot discover anything in the statutes calculated to enforce it, he has felt himself bound to disregard it. Although the nth and 12th of Vict., cap. 36, confers some new or additional remedies or heirs of entail, for working out and making available their improvement expenditure under the 10th Geo. III., cap. 51, it is nowhere provided that these new or additional remedies, if resorted to, although only to a certain extent, must be held to destroy and discharge the rights and remedies pre-existing under the 10th Geo. III., cap 51, in regard to that portion of improvement outlay which was never brought under the operation of the 11th and 12th Vict., cap. 36, and which remains unaffected by the proceedings adopted under that Act. Nor can the Lord Ordinary see any reason on general principles for coming to such a conclusion. (4) In regard to the defender's sixth plea, which is to the effect that because the late Marquess of Breadalbane did not himself for four years take any steps to charge the estate for the £5202, 16s. 2 3 4d. in question, the right to do so must be held to be extinguished, it may be sufficient to remark that no such prescription or limitation of the right, as founded on statute or otherwise, was said to exist, and the Lord Ordinary knows of none. (5) The defender's 9th and 10th pleas are obviously ill-founded. The former decrees, obtained as they were during the late Marquess of Breadalbane's life, could not possibly secure the object of the present, which is to obtain, in terms of the 20th section of the Act 10 Geo. III., c. 51, a decree which may be at once and directly enforced against the defender, as heir succeeding the Marquess in the entailed estates. And whatever effect the pronouncing of a decree in the present action may have on the pursuers' right to obtain a decree in the action recently brought, and referred to in the defender's 10th plea, the Lord Ordinary cannot understand how that action should operate as a bar to decree being pronounced in the present.

In regard to the matter of expenses, section 25 of the statute 10 Geo. III., c. 51, has made it imperative on the Lord Ordinary to award them to the pursuers who have been entirely successful in the litigation.

R. M'F.

The defender reclaimed.