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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Catton v. Mackenzie [1870] ScotLR 7_410 (16 March 1870) URL: http://www.bailii.org/scot/cases/ScotCS/1870/07SLR0410.html Cite as: [1870] ScotLR 7_410, [1870] SLR 7_410 |
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Page: 410↓
( Ante, p. 250.)
The Court refused to appoint a judicial factor on the petition of the beneficiary under a general disposition executed by the institute under an entail, as the next heir of entail had expede service, and the alleged invalidity of the entail was not so prima facie clear as to justify the Court in depriving him of the rents. Circumstances in which possession held not peaceable.
The late Hugh Mackenzie, Esquire of Dundonnell, died on 30th July 1869, leaving a trust-disposition and settlement, executed in 1854, with relative codicil, executed in 1864; both of which were recorded in the Books of Council and Session on 9th August 1869. By it Mr Mackenzie conveyed his whole estate, heritable and moveable, to trustees; and they, by assignation dated 18th and 20th December 1869, assigned the deed of trust to the extent of the general trust-disposition, to Mrs Catton, the sole beneficiary under it. Thereon she made up title, under the Titles to Lands Consolidation Act 1868, by a notarial instrument, which was recorded on 21st December in the General Register of Sasines.
Mr Mackenzie held Dundonnell asinstitute under an entail executed by his father in 1838. On his death in 1845, Mr Mackenzie completed a feudal title to the lands, conform to instrument of sasine in his favour dated 15th, and recorded in the General Register of Sasines 23d May 1845; and he continued in possession till his death in 1869. On his death, his brother, as next heir of entail, presented a petition for service in that character. This petition was opposed by Mrs Catton; but the Court held she had no title to oppose Dr Mackenzie's service.
On 10th December 1869 Mrs Catton brought an action of declarator to have it found that the deed of entail was invalid, or that at any rate its fetters were not directed against the institute; and that the entailed estate was therefore carried by Mr Mackenzie's general disposition. This action is still in dependence, and meanwhile some correspondence was carried on between the agents of the parties as to the collection of the rents, the bearing of which was a desire by the agents of Mrs Catton that the rents should be collected and consigned by Dr Mackenzie's agents till the action was decided. As no amicable arrangement could be effected, they intimated a protest against the rents being collected for Dr Mackenzie; and presented a note of suspension and interdict to have his agents interdicted from doing so. And they stated that they understood the rents that had been collected were collected by Messrs Skene & Peacock from Mr Skene being one of Mr Mackenzie's trustees.
Pending decision in the action of declarator, Mrs Catton presented a petition for the appointment of a judicial factor. This petition was opposed by Dr Mackenzie, on the ground that he had been served heir of tailzie and provision to his brother; was in possession of the estates; and had received the rents.
Duncan for petitioner.
Solicitor-General and Shand in answer.
At advising—
The title of the petitioner is a general disposition by her father, the last heir in possession, in her favour; and if the entail is bad it will embrace the entailed lands, or if the last heir had power to disregard the entail. But it is necessary for the petitioner to go a step further, and state her objections in such a way as to make an impression on the Court that there is a prima facie case that the entail is bad. A record has been made up in this Court to have this entail declared invalid; and the objections to it have been stated before us by the petitioner's counsel. I do not see that these objections are fatal to the entail; but I may quite well be brought to see that they are. In the meantime the respondent is heir under that entail, and has been served heir; and I therefore think that we should refuse the petition.
The other Judges concurred.
Agents for Petitioner— Murray, Beith & Murray, W.S.
Agents for Respondent— W. F. Skene & Peacock, W.S.
