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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Crawfurd, an Infant, by Jane his Mother and Guardian v. Archibald Crawfurd Esq. [1712] UKHL Robertson_28 (5 April 1712) URL: http://www.bailii.org/uk/cases/UKHL/1712/Robertson_28.html Cite as: [1712] UKHL Robertson_28 |
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Page: 28↓
(1712) Robertson 28
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 10.
Subject_Minor non tenetur placitare. —
Fountainhall, 1 Feb. 1710.
Forbes, 27 Dec. 1711.
The maxim does not take place in a reduction upon the head of dole, or fraud in the minor's father.
Subject_Proof. —
A deed found proved to be fraudulently altered upon ocular inspection of the different pieces, and a letter from one of the perpetrators of the fraud.
Subject_Costs. —
40 l. costs given against the appellant, a minor.
The parties were grandchildren of James Crawfurd of Ardmillan, the respondent being the son and heir of his eldest son, and the appellant the son and heir of his third son.
The respondent brought an action of reduction, improbation, and declarator before the Court of Session against the appellant, for setting aside certain deeds by virtue of which the appellant claimed the family estate of Ardmillan, and the respondent stated the circumstances of the case to be as follows:
That, the said James Crawfurd the grandfather in 1682, executed a deed of settlement or entail of his estate to himself in liferent, and to James Crawfurd (the respondent's elder brother since deceased) his grandson by his eldest son William, and the heirs male of his body, in fee, whom failing to the other heirs male of the body of his said son William and the heirs male of their bodies, whom failing to Andrew Crawfurd his second son and the heirs male of his body whom failing to James Crawfurd his third son, (father of the appellant) and the heirs male of his body, &c.: upon this deed resignation was made in the hands of the superior, the Bishop of Galloway, in September 1682, and a new charter and infeftment expeded in terms thereof.
That James the grandson, the institute in the entail, died without issue, leaving the respondent his brother under age: and Andrew the second son of the entailer also died without issue. About this time a contrivance was carried into execution by the father and the third son James to defeat the former settlement, of a singular nature: this former deed was of the hand-writing of James the son, who had been bred to the law: it consisted of three sheets pasted together, and signed at the joinings, and contained no power of revocation: but by cutting off two of these sheets and part of the third, and joining three new sheets to the said tail-piece, a deed was manufactured bearing to be to the same series of heirs as the former, but containing a power of redemption upon payment of 3 l. Scots: in pursuance thereof, the father used an order of redemption, and, on the 10th of May 1698, executed a new deed of settlement of his estate to James his third son, and his heirs heritably and irredeemably, and upon this deed James the son was infeft in 1705,—and died in 1706, leaving the appellant his son and heir under age:
Page: 29↓
But the respondent Archibald, living in the house with his grandfather, by some means got possession of that part of the original deed, which had been cut off, and a letter from James the son to his father, dated in 1696, which explained the transaction: the respondent after his grandfather's death served himself heir to his elder brother deceased.
And his action concluded, that it should be found and declared, that the said original deed contained no power of redemption, that the transaction had taken place in manner before mentioned, and that the two sheets and part of the third, (then produced by the respondent,) should be added to the tail of the vitiated deed, as it had originally stood: and the respondent produced also the said letter from James the son to his father, dated in March 1696.
The appellant appeared by his mother and curatrix, and pleaded for defence to this action, that minor non tenetur placitare super hæreditate paterna, and that it was only necessary for him to produce his father's infeftment to free him from the action; but the Court finding that the maxim did not defend from the production, but reserving consideration thereof after production, the appellant produced the whole deeds called for.
The deed of 1682, being inspected and compared with what the respondent had already given into court, on the 19th July 1711 the Court “found that the two sheets and 13 lines produced by the pursuer, had been a part of and joined to the last sheet of the disposition granted by James the grandfather to his grandson James produced; and that the said three first sheets of the said disposition as it is now produced by the defender, containing a clause of redemption, have been falsely pasted to the last sheet in place of the said two sheets and 13 lines cut off; and therefore found the clause of redemption contained in one of the three sheets so pasted, null, and likewise the order of redemption used thereupon; and found the conveyance to the defender's father null; with the charter and sasine following thereupon.”
And after a hearing with regard to the maxim, the Court on the 27th of December 1711 “found that the maxim of minor non tenetur placitare super hæreditate paterna did not take place in this case.”
The appellant having reclaimed against both these interlocutors, the Court by several interlocutors, (the last of them being dated the 11th of January 1712) adhered to the same.
Entered, 8 Feb. 1711–12.
The appeal was brought from “a sentence or decree pronounced by the Lords of Council and Session the 19th July 1711, and by them adhered to after several re-hearings, the last of which was on the 11th day of January following.”
Heads of the Appellant's Argument.
The rule minor non tenetur placitare super hæreditate paterna is a maxim allowed by the law of Scotland, and also by the law of England. By it there is to be a stay of all proceedings against the minor, when the right of his inheritance descending from his
Page: 30↓
Stair's Decisions, vol. i. No. 259.
And though there be falsehood or dolus alleged in the present case; yet there is no falsehood or dolus alleged against the minor, whose privilege is insisted on, till he himself be in a capacity of pleading, if a bare allegation of such crimes be sufficient, every minor might be easily defeated of his privileges: and in the case of Kello against Pringle, 31 January 1665, it was found that the allegation of dolus & metus was not sufficient to take away from a minor the benefit of the maxim; and there never was any decision to the contrary.
The interlocutor of the 19th July 1711, was a determination of the matter of fact before any issue was joined, and without evidence; for nothing more was insisted upon for the appellant than his minority, and his privilege of minority was not determined until the 27th of December 1711, which was near six months after pronouncing the interlocutor.
And even if the matter of fact might have been examined into, yet it is not found, that there was any alteration of the disposition after the charter and infeftment followed thereupon, which is the substance of the respondent's libel in this action.
Heads of the Respondent's Argument.
However general the maxim pleaded by the appellant may be, yet it has known exceptions, and particularly that it never takes place ubi agitur aut de obligatione aut de dolo defuncti: and as this is the opinion of the most eminent lawyers, so it is most reasonable, for if a person happens to get into possession of an estate by dolus, and soon after dies leaving his heir a minor, it would be very hard that his minority should protect him from pleading to the action, and prevent the true proprietor from being re-possessed of his own estate, of which he was only dispossessed by the father's fraud.
The law, it is true, presumes in favour of deeds that are complete and duly executed; but this deed has no manner of pretence to that character, as appears from ocular inspection. The grain and length of the paper of the part added do not agree with the red of the deed, and the strokes of the long letters appear upon the sheet where it was cut off. The last sheet of the deed exactly quadrates with the two sheets and 13 lines cut off.
All this was perfectly evident from the appellant's father's letter to James the grandfather, which was produced in the action, wherein the whole scheme was set out, and that the deed as it stood originally contained no clause of redemption. By this transaction a forgery was imposed upon the witnesses, who were not witnesses to the deed as it was altered, at a date as appeared by the letter long subsequent to the original execution of it.
Page: 31↓
The appellant alleged a declaration of the grandfather, that he being displeased with the first, had executed a new deed, on which the charter proceeded; and that his father by paying large debts was a purchaser for an onerous consideration. But the declaration of the grandfather, who appears to have been a party to the contrivance, was of no import. For the debts paid, the appellant's father took assignments in his own person; and in so far as they are just debts, the respondent will be obliged to pay them.
Judgment 5 April 1712.
After hearing counsel, It is ordered and adjudged, that the said petition and appeal be dismissed, and that the sentences or decrees therein complained of be affirmed: And it is further ordered, that the appellant shall pay or cause to be paid to the respondent the sum of 40 l. for his costs in this House.
Counsel: For Appellant,
Ja. Mountague.
P. Crawford.
For Respondent,
Edward Northey.
Sam. Dodd.
The letter written by the appellant's father to James the grandfather of the parties, is stated by the respondent to have been of the following tenor:
“ Sir,
I received by this bearer inclosed in your's the disposition in favour of your oye James, and according to your desire, I have by the assistance of that person you signified to me drawn it as I suppose to your satisfaction, and I have added the clause of redemption as perfectly as I think it will hold in law, and as you may dispose of your estate to any child you have notwithstanding of that tailzie. Sir, I was necessitated to write this, to know if you have any further to do in it; for I have not ended it, waiting to know your commands: and since I cannot have the occasion of this friend there, so let me know by this bearer, being a sure hand, as soon as possible. I add no more, but destroy this line, and rest,
Sir,
Your dutiful son and servant,
Edinburgh,
JAMES CRAWFURD.”
March the 4th, 1696.
