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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Baird v Neill [1835] CA 13_927 (12 June 1835)
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Cite as: [1835] CA 13_927

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SCOTTISH_Shaw_Court_of_Session

Page: 927↓

Baird

v.

Neill
No. 281.

Court of Session

2d Division

June 12 1835

Ld. Moncreiff. F., Lord Justice-Clerk, Lord Meadowbank, Lord Glenlee, Lords President, Gillies, Mackenzie, Corehouse

Sir James Gardiner Baird,     Pursuer.— Rutherfurd— Davidson. Patrick Neill,     Defender.— D. F. Hope— Monteith.

Subject_Entail — Statute 42 Geo. III., c. 116 — Sale — Fraud. —

In a reduction by an heir of entail of part of the estate sold for redemption of the land-tax against an onerous bona fide third party—held, l.That such party is not liable to be affected by any alleged fraud on the part of the seller and original purchaser. 2, That a sale is competent, although the next substitute heir of entail be not of age, and be not resident in Britain, notice being given to the nearest substitute who is so. 3. That it is not necessary that the Court should themselves fix the upset price, or interpone their sanction thereto, having authorized the trustee appointed by them to fix it. 4. That the petition, praying for a sale of lands, the value of which greatly exceeded the amount required to redeem the tax, having set forth the 63d section, and the proceedings being in accordance therewith, and there being evidence before the Court on which they might have formed a determination as to whether the lands proposed to be sold might not be divided, so as to sell only as much as was necessary to redeem the tax, and whether it was not more advantageous to the estate to sell the whole,—it was not a fatal objection to the sale, that the Court had not specially found this in their deliverance, and that no opinions to this effect were put in evidence. 5. That a disposition is effectual to a bona fide third party though granted without the price having been paid into the Bank of England, as required by the act. And, 6. That the omission to obtain a judgment of approval by the Court does not render invalid proceedings otherways regular and correct.

By the 42 Geo. III. c. 116, for redemption of the land-tax, it is enacted, with reference to entailed estates, by section 61:—“That where any heir of entail in possession of an entailed estate in Scotland, or his or her tutor or tutors, or where he or she is an idiot or lunatic, his or her curator or curators, mean to sell part of the said estate to purchase the land-tax of the estate, in terms of this act, it shall be competent and requisite for him, her, or them, to apply by petition to the Court of Session, stating the amount of the land-tax payable out of said estate, what part of the estate it is proposed to sell, and the rent or annual value of that part of the estate; and praying the Court, upon the allegations on these points being proved to the satisfaction of the Court, and it being shown that the sale of the part of the estate proposed to be sold will not materially injure the residue of the estate remaining unsold, and that the part so proposed to be sold is proper (considering all circumstances) to be sold for the purpose aforesaid, to authorize such sale to proceed in manner hereinafter enacted; and the Judges of the said Court are hereby authorized and required to order such petition to be intimated upon the walls of the Outer and Inner House of the said Court, in common form, for ten sederunt days, and also to be advertised weekly, for two weeks successively, in the Edinburgh Gazette; which intimation and advertisement shall be a valid and effectual intimation, advertisement, and service, to all intents and purposes, as much as if the said petition had been personally intimated to, or served upon, all persons having, or pretending to have, any interest with regard to the said estate, as substitute heirs of entail, creditors on the said estate, or in any other way or character whatever; and such intimation being duly made, the Court shall proceed summarily in the matter, and shall authorize the sale of that part of the estate which the petitioner or petitioners are willing to sell, which the Court thinks ought to be sold for the purpose above-mentioned, and against the sale of which no sufficient reason is stated by any person having interest; and the extract of the decree of the Court authorizing the sale, shall be sufficient authority to the Commissioners acting under this act, to carry on the sale in manner herein directed.” By section 63 it is also enacted, “That if any farm, lands, or tenements, usually possessed together, shall be proposed to be sold under the provisions of this act, which shall be more than sufficient for that purpose, and it shall appear to the Court of Session, either from the detached situation of such farm, lands, or tenements, or from any other circumstances, that such farm, lands, or tenements cannot be divided, in order that an adequate part thereof may be sold without loss to the parties interested; or that the sale of the whole of such farm, lands, or tenements would be more eligible and advantageous to the said entailed estate, and to the successive substitute heirs of entail in their order, it shall be competent and lawful for the said Court of Session, in like manner as it is authorized to proceed in other cases by this act (due notice having been given to the next substitute heir of entail, being of lawful age, and resident within Great Britain, of such proposal to sell and dispose of such farm, lands, and tenements), to direct and authorize the sale of the whole of such farm, lands, or tenements, and the surplus money, after purchasing stock sufficient to redeem such land-tax, and paying and discharging the costs and expenses attending the sale thereof, shall, with the interest and annual produce thereof, be applied and disposed under the direction, and with the approbation, of the said Court, in the same manner as herein is directed, with respect to the eventual surplus arising from sales, when no more has been exposed to sale than is judged adequate for the redemption of such land-tax.” By the 65th section of the statute, it is further enacted, “That where any such sale shall be authorized by the Court of Session, the same shall be carried on by public auction, at such time, and on such notices, as the said Court shall from time to time direct; and further, that previous to any sale to be made in terms and by virtue of the powers required and given by this act, the Court of Session shall cause articles of sale to be drawn up in the usual form required by the law of Scotland for making such sale effectual, and whereby the purchaser shall be taken bound to pay the price to a trustee, to be named by the person or persons in whose names, or for whose behoof, the said sale or sales is or are carried on; and which trustee shall be approved of by the said Court, and shall find security to their satisfaction, that the sum or sums of money, so to be paid to him by the said purchaser or purchasers, shall be duly and faithfully applied in the manner, and for the purposes herein enjoined and directed: And, further, that the said trustee, upon receipt of the said price or prices, shall be forthwith bound to pay the said money into the Bank of England, to be there placed to the account of the Commissioners for the reduction of the national debt, to be by them applied in the manner, and for the purposes, directed and specified by this act; and the receipt of the cashier or cashiers of the bank shall be a full sufficient discharge to the trustee, and to the said purchaser or purchasers, for the sum or sums of money so agreed to be paid by him, her, or them, in manner aforesaid; and which purchaser or purchasers, upon payment of the sum or sums by the said trustee into the Bank of England as aforesaid, shall be entitled to demand and obtain from the said heir of entail, or other person or persons in whose name, or at whose instance, or for whose behoof, the said sale or sales is or are carried on, such disposition, conveyance, or other title to the subjects so sold, containing all the usual and necessary clauses for rendering complete the right to the same, in favour of the said purchaser or purchasers, under the direction of the said Court.”

The late Sir James Gardiner Baird possessed the estate of Saughtonhall, near Edinburgh, under the fetters of a strict entail. In February, 1804, he presented a petition to the Court of Session for authority to sell, for redemption of the land-tax, two adjoining fields, called Damside and Factor's Park, which were separated from the rest of the estate by the Water of Leith. The next heir at this time was the son of Sir James, but he was a minor, and abroad. Mr Baird of Newbyth was the nearest heir of entail who was of lawful age; and to him intimation was made, and a certificate by him, acknowledging this intimation, was produced along with the petition. The petition fully recited the 61st, 63d, and 65th sections of the 42 Geo. III, above quoted, and thereafter set forth as follows:—

“That the parts of the estate which the petitioner proposes to sell, are what are called Damside and Factor's Park, extending to 18 acres and 320 decimal parts of an acre, and houses thereon, as delineated on a sketch of plan lodged with the clerk, and which have been usually, and are at present let together, and are detached and separated from the other parts of the petitioner's estate by the Water of Leith, which runs between them and the remaining part of the estate.

“These parts of the lands are at present under lease to Mr William Inglis, writer to the signet, for sixteen years after Martinmas next, at the rent of two pounds sterling of money, seventeen bolls, one firlot, three pecks, and two lippies of wheat, and the same quantity of barley, eight hens, three threaves of straw, and four carriages, or tenpence for each hen, one shilling and fourpence for each threave of straw, and sixpence eight-twelfths for each carriage.

“The sale will in no respect injure the remainder of the estate, and the lands proposed to be sold are certainly the most proper part to be disposed of; and any surplus, after redeeming the tax, may be employed towards extinction pro tanto of a considerable debt affecting the estate, or in such other way as shall afterwards be directed by your Lordships.

“The petitioner produces herewith a certificate, under the hand of Robert Baird, Esq. of Newbyth, the next substitute heir of entail, of lawful age, acknowledging that intimation has been made to him of the present application and intended sale.”

The prayer of the petition was in these terms:—“May it therefore please your Lordships, in terms of the foresaid Act of Parliament, to order this petition to be intimated upon the walls of the Inner and Outer House, for ten sederunt days, and in the Edinburgh Gazette weekly, for two weeks successively; and thereafter, upon the facts herein set forth being sufficiently instructed to your Lordships' satisfaction, to authorize the sale of the foresaid parts of the said lands of Saughtonhall to proceed, on articles of sale, to be previously adjusted by your Lordships, all in terms, and for the purpose recited in the foresaid Act of Parliament, passed in the 42d year of his present Majesty; and to grant warrant for letters of incident diligence against witnesses and havers, and to give such other directions in the premises as to your Lordships shall seem proper, in conformity with the foresaid statute. According to Justice,” &c.

The Court ordered intimation as craved; and thereafter allowed the petitioner “to prove, prove de jure, the amount of the land-tax payable to the public for the year 1798, out of the entailed estate mentioned in the petition; the rent or annual value of the lands proposed to be sold for redeeming the said land-tax; if these lands can be sold without injury to the remainder of the entailed estate, and if they are the most proper part of the estate to be sold for the above purpose, all circumstances considered; all in terms of the statutes made in that behalf.”

A proof was accordingly taken, which consisted

1. Of a certificate, under the hands of two commissioners of supply, that the land-tax to be redeemed amounted to £277, 18s. 8d. Scots (£23, 3s. 2 8/12d.), requiring a sum of £506, 7s. 4 3/12d. to purchase the necessary stock in the public funds to yield an equal amount.

2. Of the deposition of William Inglis, W.S., Sir James Baird's agent, who was also tenant of the lands proposed to be sold, that he held them together under one lease for 19 years, whereof sixteen were still to run, at a rent of £41, Is. 5 10/12d., leaving, after deducting public burdens, a free yearly rental of £40, 16s. l 7/12d.

3. Of the depositions of the same William Inglis, and one Johnstone, a tenant in the neighbourhood, to the effect that, in their opinion, “these lands can be sold without prejudice to the remainder of the petitioner's entailed estate: And, further, that, all circumstances considered, particularly the detached situation of these lands from the other parts of the estate, they are the most proper parts of the petitioner's estate to be sold for the purpose of purchasing and redeeming the land-tax thereof.”

There was further produced in process a plan of the lands, showing their detached situation, and that they were intersected by the public road leading from Edinburgh to Glasgow. This plan was not marked by the clerk as produced, but it was referred to as in process in the state of the proof made up thereon.

On advising this proof, with the proposed articles of roup, which then stood blank in the upset price, the Court pronounced an interlocutor, which, after finding the amount of land-tax and the free rent as proved, proceeded thus:—“Find it instructed, that these lands can be sold without injury to the remaining part of the estate; and that, considering all circumstances, they are the most proper parts of said estate to be sold for redemption of the land-tax thereof: Approve of the Honourable Henry Erskine, advocate, to be trustee, and of Mr Henry David Inglis, advocate, as his cautioner for the due execution of the trust; and likewise approve of the proposed articles and conditions of roup, and appoint them to be identified by the said trustee, and by the clerk to the process: And grant warrant to, and authorize the petitioner and his said trustee to sell the foresaid lands of Damside and Factor's Park by public auction, in terms of the statute founded on in the petition, and of the foresaid articles and conditions of roup, and to fix the upset price thereof.”

The trustee thereafter fixed the upset price at £1225; and, after the requisite advertisements, exposed the lands to sale, when they were bought for William Inglis, W.S., at the price of £1420, leaving an excess beyond the sum required for redemption of the land-tax of £913, 12s. 7 9/12d. No judgment approving of the sale was obtained from the Court, and the price was not paid into the Bank of England as required by the 65th section of the statute; and, although the land-tax was duly redeemed, the excess was never lodged for behoof of the heirs of entail. Sir James, nevertheless, on the 25th October, 1805, granted a disposition of the lands to Inglis, who, without taking infeftment, sold them shortly afterwards to one Laing, at the price of £3000. Laing died without having been infeft, but titles were made up by a trustee under a trust-disposition of settlement, and he, having taken infeftment, sold them, in 1808, to the father of the defender, Neil, at the price of £3526. The defender's father, and the defender himself, laid out considerable sums in improving the property, which they possessed without challenge till 1831, when the pursuer, Sir James Baird, grandson of the original seller, and heir of entail in the estate of Saughtonhall, raised the present action, to have the sale, and the titles of the defender set aside, on the grounds, that it was the result of a fraudulent contrivance between the seller and his agent, to the injury of the succeeding heirs, and that it had not been conducted in conformity to the statute in the following particulars:—1. That the proceedings had taken place, notwithstanding that the next heir was neither of lawful age, nor resident in Britain. 2. That the upset price was blank in the articles of roup when the warrant of sale was granted, and so the upset price was never authorized by the Court. 3. That it was neither set forth in the petition, proved by the evidence, nor found by the Court, that, in terms of the 63d section, the lands proposed to be sold could not be divided, in order that an adequate part might be sold without loss to the parties interested. 4. That the disposition was taken by the purchaser without the residue of the price having been lodged in the Bank of England, in terms of the statute; and, 5. That the sale was never reported to the Court, nor approved by them.

In support of his reasons of reduction, founded on these particulars, the pursuer pleaded—

1. The statute requires notice to be given to “the next substitute heir of entail, being of lawful age, and resident within Great Britain.” These words import, that a sale under the act is only competent where the next heir of entail is of lawful age and resident in Britain, and cannot properly bear the construction, that it is sufficient to give notice to the nearest heir who may happen to be of lawful age and in Britain, though not the next substitute. Accordingly, in the provisions in this and prior statutes, referable to England, 1 where consent is required, it cannot be disputed, that the only available consent is that of the nearest heir, and that validly to give that consent he must be of lawful age, although the words used are exactly similar; and the analogy confirms the construction contended for by the pursuer.

2. The important matter of fixing or authorizing the upset price can only be done by the Court, that being the usual form in all judicial sales under their authority; and the omission to obtain their sanction to the upset price was held to be a valid objection in the case of Eliott. 2

3. The decision in the House of Lords in that case of Eliott is conclusive on the objection to the want of evidence, that the lands could not be divided so as that a proportion no more than adequate to the amount required for redemption of the tax, might have been separately sold. The judgment expressly rests on the finding, that the Court of Session “had not before them any evidence that the farms, &c. could not be divided, so that an adequate part only might be sold, nor any evidence that the sale of the whole of such farms, &c. would be more eligible and advantageous to the said entailed estate, and to substitute heirs of entail, than the sale of a part thereof only.” The whole proceedings in that case were identical with those in the present, subject to this exception, that the 63d clause, which refers to the case of a sale of a greater extent of land than is necessary, was not in the petition in Eliott's case specially recited; but this can afford no sufficient ground of distinction, as the petition was not limited to the 62d section, but was rested on the statute generally, while the notices were given as in the present case with reference to a proceeding under the 63d section. The evidence also laid before the Court was exactly similar to that in the present, and afforded equal ground for maintaining that the Court might therefrom have drawn the conclusion, that the lands could not be properly divided; yet there being no direct evidence to that effect, and no deliverance of the Court with reference thereto, the House of Lords held, that the provisions of the statute had not been complied with, and set aside the sale. Their judgment applies directly to the present case, and might be repeated in terminis in perfect accordance with the facts as appearing from the proceedings.

_________________ Footnote _________________

1 38 Geo. III. c. CO, § 26, 32; 30 Geo. III. c. 6, § 29; 39 Geo. III. c. 40, § 6.

2 Eliott v. Wilson, Feb. 9, 1820 (ante, IV. 429); in House of Lords, May 2, 1828 (3 W. and S. 60).

4. It is expressly provided by the statute, that the disposition shall not be granted to the purchaser till the price be paid into the Bank of England, while the disposition here was granted in direct violation of this proviso, and cannot, consequently, have the benefit of the protection, of the statute.

5. The reporting of the sale to the Court, and their final judgment of approval, is another requisite of the statute, which has been disregarded and the neglect of which also exposes the sale to the challenge of a succeeding heir of entail, without the protection of the act.

The defender, on the other hand, in addition to his plea on the alleged fraud by the seller, that, as a bona fide onerous third party, he could not be affected thereby, pleaded—

1. The analogy of the provisions as to the next heir of entail in England does not apply. There, the nearest heir, or remainder-man, is held to have an estate vested in him, and consent being required to affect that estate, he is the only party who can give that consent. In Scotland, none of the substitutes have a vested estate, but all of them have a jus crediti, entitling any one to object to a sale of part of the estate, and therefore there is no consent required, and no reason for notice to more than the nearest heir who is of age, and in Britain at the time, and this is the fair and natural construction of the words.

2. The objection to the fixing of the upset price in the case of Eliott was, that it had been fixed by “private” authority. Here, however, the trustee appointed by the Court was specially authorized to fix the upset price, and this is sufficient compliance with the statute, which no where requires that it should be directly fixed by a special deliverance of the Court.

3. The case of Eliott and the present are clearly distinguishable. In that case there was no allusion to the 63d section, and it could not have been discovered from the proceedings that it was proposed to proceed under that section, and to sell more than was required for redeeming the land-tax. In the present case, the 63d section was specially referred to, and the whole procedure had reference thereto, while the rent deponed to by the tenant showed at once that the value greatly exceeded the amount required to redeem the tax; and the evidence, that the lands proposed to be sold were let together, and were separated from the rest of the estate by the Water of Leith, was sufficient to establish, that they could not, with advantage, be sold separately. But even were it held that the Court were wrong in their judgment as to this point, an error in judgment on the part of the Court is no ground for setting aside the sale, if the matter be fairly brought before them in terms of the act. Here it appeared, ex facie of the proceedings, that a sale was proposed of a greater extent than was required to redeem the tax, and materials were laid before the Court, from which they might have judged of the propriety of selling the whole, and whether it was more advantageous than to divide the lands; and this being the case, the ratio decidendi in the case of Elliot does not apply.

4. It was decided in the case of Montgomery, 1 that the failure to lodge the price in the bank before a disposition was granted, could not affect the right of an onerous bona fide third party.

5. The absence of the approval of the Court cannot, per se, invalidate the proceedings, unless there have been some legal defect in following them out.

The defender further pleaded, that all challenge on the grounds here founded on was excluded by the acts 54 Geo. III. c. 173, and 57 Geo. III. c. 100.

To this, however, it was answered—1. That these statutes had reference only to England; and 2. That they applied only to the case of errors, and not to that of neglect to follow out the provisions of the statute.

The Lord Ordinary pronounced this interlocutor, adding the subjoined note: *—“Having considered the closed record, and heard parties' procurators thereon, and thereafter made avizandum, and particularly considered the proceedings under which the sale sought to he reduced took place, and the statutes and other authorities referred to by the parties, Finds, 1mo, That the defender Patrick Neill cannot be affected by any allegations of fraud in the application for a warrant to sell the lands in question, or in the proceedings under it, whereby the Court of Session, in granting the warrant, may have been deceived or misled; and sustains the defences of the said Patrick Neill, in so far as the conclusions of the summons, as directed against him, are laid on any such ground: Finds, 2do, That, according to a sound construction of the statute 42d Geo. III. c. 116, § 63, the notice to Robert Baird, Esq. of Newbyth, ‘as nearest substitute heir of entail of lawful age,’ of which evidence was produced to the Court, was due notice, in terms of the statute, ‘to the next substitute heir of entail, being of lawful age, and resident within Great Britain;’ it not being alleged that there was any nearer substitute heir then of lawful age, and resident in Great Britain; and repels the plea of the pursuer, that the statute does not, authorize any sale to be made, under the 63d section, in the case of the heir next in succession to the proprietor in possession not being of lawful age, or not being resident in Great Britain: Finds, 3tio, That, as the interlocutor of the Court, granting warrant of sale, appointed the late Honourable Henry Erskine to be trustee, as required by the statute, and expressly authorized him to fix the upset price, to be inserted in the articles of roup; and as the statute contains no injunction that the upset price shall be fixed by the Court itself; no relevant ground of reduction arises, in a question with the defender as an onerous purchaser, from the fact that, at the date of the warrant of sale, the upset price had not been determined, but stood blank in the articles of roup: Finds, 4to, That the petition for obtaining the warrant, though it stated that the lands had been usually let together, and were detached and separated from the other parts of the estate, did not set forth cither that they ‘could not be divided, in order that an adequate part thereof might be sold without loss to the parties interested,’ or that the sale of the whole would be ‘more eligible and advantageous to the said entailed estate and to the successive substitute heirs of entail in their order: that the proof allowed by the Court bore no distinct reference to this point, as in a sale under the 63d section of the statute, but simply preferred to the question, ‘if these lands can be sold without injury to the remainder of the entailed estate, and if they are the most proper parts of the estate to be sold for the above purpose, all circumstances considered,”—apparently in reference to a sale under the 61st section only: that the proof adduced bore only, that the ‘lands can be sold without prejudice to the remainder of the petitioner's entailed estate, and further, that, all circumstances considered, particularly the detached situation of these lands from the other parts of the estate, they are the most proper parts of the petitioner's estate to be sold for the purpose,’ &c.: and that the interlocutor of the Court, granting warrant of sale, merely ‘finds it instructed that these lands can be sold without injury to the remaining part of the estate, and that, considering all circumstances, they are the most proper parts of the said estate to be sold for redemption of the land-tax thereof:’ Therefore finds, That, according to the record of the judgment, and under the proceedings as raised by the petition, the Court, before pronouncing the interlocutor, had not before them any evidence, that the farms, lands, or tenements thereby appointed to be sold, could not be divided, so that an adequate part only might be sold, nor any evidence that the sale of the whole of any such farms, lands, or tenements, would be more eligible and advantageous to the said entailed estate, and to the successive substitute heirs of entail, than the sale of a part thereof only: Finds, 5to, That the residue of the price, as well as the sum necessary for relieving the land-tax, ought to have been paid into the Bank of England, before a disposition was granted to the purchaser, and that it was not so paid in this case: But in respect of the decision of the House of Lords in the case of the Earl of Wemyss against Montgomery, finds, That no sufficient ground of reduction arises on that omission in a question with an onerous purchaser: Finds, 6to, That the sale in question never was reported to the Court, or approved of by them; and that although no statutory nullity might arise on that ground, if the proceedings had been otherwise regular, it forms a material defect in the title of the purchaser, where the statutory provisions in other respects have not been observed: Finds, That neither the provision of the act of the 54th Geo. III. cap. 173, § 12, nor that of 57th Geo. III. cap. 100, § 25, applies to the case of a fundamental error in the execution of the statute: Therefore, and specially in respect of the matters set forth in the fourth finding above expressed, Repels the defences, and reduces, decerns, and declares, in terms of the reductive conclusions of the libel; reserving to the defenders their claims for repetition of the price from the pursuer, in so far as any part of it was applied to redeem the land-tax, or to discharge burdens which affected, or might have been made to affect, the entailed estate or the pursuer; reserving also to the defenders any claims for ameliorations made on the lands, and to the pursuer his objections as accords; and, finally, reserving to the pursuer his claim for repetition of the rents, and to the defenders their objections as accords; and appoints parties’ procurators to be further heard on all these and any other points of the cause: finds rid expenses due to either party.”

_________________ Footnote _________________

1 Earl of Wemyss v. Montgomery, Feb. 28, 1821, affirmed in House of Lords, Feb. 85, 1824 (1 Shaw's App. 1).

* “Note—Some of the points in the interlocutor may require a little explanation:—

“I. The pursuer endeavoured to make out, by a deduction from the series of statutes for redemption of the land-tax, particularly, 38th Geo. III. c. 60, § 26, 32; 39th Geo. III. c. 6, § 29; 39th Geo. III. c. 40, § 6; and the material act 42d Geo. III. c. 116, § 63, that the words,‘the next substitute heir of entail being of lawful age,’ were meant to designate specifically the next existing heir, whether of age or not, and to impose it as a condition, without which no sale of such lands (under the 63d section) beyond what was necessary for redemption of the land-tax could be made at all, that that next heir should be of lawful age, and resident in Great Britain:

He urged that by the 38th Geo. III, no sale of that kind was allowed; that, by the 39th Geo. III. c. 6, such sales were permitted, but only with the consent of the next heir interested; that this still remains the rule for England; and that, it being a great stretch to allow the same thing in Scotland, on notice only, the clauses in the 39th Geo. III. c. 40, and 42d Geo. III. c. 116, must be construed to mean that no sale of the kind shall take place, unless the next immediate heir himself is of age, resident in Britain, and receives notice. There is a good deal of plausibility in this; but the Lord Ordinary cannot enter into it. He thinks it very clear that, whether the act 39th Geo. III. c. 6, may in any sense be a statute for the empire or not, its provisions, and particularly the 29th section, do not at all apply to entailed estates in Scotland, The Court of Session is not mentioned in it; and no sale in Scotland could possibly have taken place under it, consistently with the 38th Geo. III. Then the act c. 40 of the same session was passed specially for extending and enlarging that act of 38th Geo. III., as to estates in Scotland; and in it the provision as to notice to the next heir of entail is essentially different in principle from that with regard to rights of remainder and reversion in England, as expressed in c. 6. The reason of the difference probably is, that there is a vested estate in the next remainder-man, which it was thought impossible to affect beyond the necessity of the case, without his consent, and, on the other hand, no heir of entail in Scotland having a vested estate, but all the heirs having equally a jus crediti, notice to the next heir who might be of lawful age, and resident in Britain, was thought sufficient. The Lord Ordinary therefore construes the words ‘being of lawful age,' &c. as equivalent to ‘who is,’ &c, and not as importing ‘if he is,’ or ‘provided he is;’ and he comes to this conclusion the more readily, because, though the point occurred in the case of Eliott, it is evident that the Court did not go into the pursuer's view of it. The act 10th Geo. III. c. 51, has a different principle: it certainly does designate the next substitute absolutely, if in Britain; but if he is abroad, it allows notice to the nearest male relation by his father.

“II. In the case of Eliott, the Court thought it a blot that the upset price had been filled up in a particular manner, having been blank when the articles were approved of. But the interlocutor is laid expressly on the ground, that the thing was done ‘by some private authority, without any warrant from the Court.’ The fact is otherwise in this case.

“III. In the fourth finding, the Lord Ordinary has proceeded entirely on the judgments of the Court and the House of Lords, in the case of Eliott, and he has adopted the very words of the latter: he cannot distinguish the cases: the points in the petition—in the interlocutor allowing the proof—in the proof—and in the interlocutor authorizing the sale—were substantially (and in the interlocutors nearly verbatim) the same as in this case: The essential error in both is, that the points to which the proof and interlocutors apply, are those belonging to a sale under the 61st section—even the detached situation of the farm (not alluded to in either interlocutor) being only stated as a circumstance to show, according to that section, that the sale would be without injury to the estate, and, on the whole, the most eligible. But there is no application of that or any thing else to the specific point of the 69d section—that the lands cannot be divided, or that it is more eligible to sell the whole than a part. The Lord Ordinary, therefore, finds himself bound to follow implicitly o precise a precedent as that of Eliott.

“The other points require little particular notice, It may be proper to state, that in the case of Sir James Montgomery, there is no doubt that the price was not paid into the Bank of England, according to the terms of the statute, and that this point was strongly urged in the House of Lords, though the report does not bring it out. With regard to the acts 54th and 57th Geo, III., the provision of the 54th is much the strongest, and the nearest to the point here sought by the defender. But that act was fully before the House of Lords in deciding the case of Eliott, and neither could they be ignorant of that of the 57th, which has fully more relation to England than Scotland.

“The Lord Ordinary has thought it his duty to decide on all the points put in issue, though he is aware that a more general form of interlocutor is more convenient. But when the cause is to go to review, it is impossible to waive points as unnecessary to be decided, without leading to a double discussion.”

Both parties having reclaimed, in so far as the interlocutor was hostile to them respectively, the Court ordered Cases, which were advised on the 3d July, 1834.

Lord Justice-Clerk.—This is a case of great importance and nicety. The question is simply, whether the act of Parliament has or has not been duly carried into execution? In deciding it we cannot take into consideration the hardship on the party, but must give effect to the act. On the other hand, if, in availing himself of the act of Parliament, the proprietor brings his case fairly before the Court by petition, which, if duly attended to by them, can leave no doubt on their minds as to what he oaks, no blunder in the judgment of the Court can be founded on against a bona fide purchaser. This is emphatically laid down by Lord Eldon in the cases of Agnew and Montgomery. Keeping these principles in view, let us consider what is authorized by the statute. This appeare from the clauses quoted in the papers. Then consider the proceedings here. When we look at the petition, it recites the whole clauses material for the Court to have in view in the case of selling more than is necessary to redeem the tax, and it anxiously describes the extent of the land-tax, and the lands to be sold are described as a combined portion of lands. It further sets forth their local situation as divided from the rest of the estate by the Water of Leith, and refers to a sketch. No doubt the plan was not marked as in the process, but in the state prepared it is referred to as part of the evidence. The most important feature of this case, however, and what distinguishes it entirely from the case of Eliott, is that the petition expressly states that there will be a surplus price; and further, that intimation had been made to the next substitute of age in Britain, which was only necessary under the sixty-third section; and further states that the lands were held by one person under one lease, at a rent which must have shown that the value of the lands exceeded what was necessary for the redemption. Then let us attend to what the Court do. Every thing is correct as to ordering intimation in the ordinary way. They allow a proof; and when the proof was taken, and the Court having before them the state and evidence of the witnesses, they resumed consideration of the petition, and having all before them, decern for the sale in terms of the statute. Now, under the sixty-third clause, it is particularly obvious, that though it requires that it shall be made to appear that the lands cannot be divided, and that it is more advantageous to Sell in whole, it is only stated that if it shall be made to appear, “from the detached situation or other circumstances,” &c, so that considerable latitude is allowed to the Court as to the proof which shall be held to make it so appear to them, and they are not directed to find it specially proven. All that is required is that it be made to appear to them, either from the detached situation or other circumstances, and a discretion is left to them very different from what would be the case if they were obliged to find it proven. Here the attention of the Court was called to the object, and that the lands to be sold were more than necessary, and that the proceedings were really under the sixty-third section. Then, even if the Court pronounced an interlocutor not fully warranted, if they were professing to execute the act, a bona fide purchaser is not to be affected by their error in judgment. I am aware there is nothing in the interlocutor as to the lands not being capable of being advantageously divided, but if the petition sets forth every thing required by the statute, and necessary to enable the Court to see the exact state of matters, I am not prepared to say that the error of the Court, if it be an error, is one that a bona fide purchaser can be affected by. If there was any deception or concealment, then the result might be different, but if they were in possession of every thing necessary to do their duty under the statute, an error of the Court will not affect him. The case of Eliott was wholly different; the petition there did not make a disclosure of the circumstances. In that case the true object was entirely concealed, or that it had any reference to the sixty-third section; and I cannot possibly Bay here, as was said there, that there was no evidence of the detached situation, or other circumstances, to show that the lands could not be advantageously divided. These are the grounds on which I feel that I cannot concur in the interlocutor, contrary, I admit, to my first impression. But after a full consideration of the circumstances, and of the case of Eliott, I am at present for altering the interlocutor, though I would certainly wish the benefit of the opinion of the other Division, who decided that case of Eliott.

Lord Meadowbank.—I am glad your Lordship has thrown out the idea of consulting our brethren. I have studied the case anxiously to be able to distinguish it from the case of Eliott, but unsuccessfully, and I entirely concur in desiring the opinion of the other judges.

Lord Glenlee.—I am satisfied it is proper to consult, and if so, it is unnecessary to say any thing.

Lord Cringletie.—I agree in every word your Lordship has said.

The Court accordingly ordered the papers to be laid before the other judges for their opinions. The following were returned:—

Lords President, Gillies, Mackenzie, and Corehouse,—The Court of Session being intrusted by the Legislature with the duty of superintending sales of entailed property for redemption of the land-tax, it is clear, that if the proceedings are not conducted in the manner prescribed by the statute, the Court exceed their powers, and the sale must be null, even in a question with a bona fide purchaser. On the other hand, if, in the exercise of the powers conferred upon them, the Court commit an error of judgment in a matter on which they are directed to judge, a purchaser, if not in mala fide, is in safety to rely on the decree. This principle is distinctly explained by Lord Eldon, in a passage cited by the defender from his Lordship's judgment in the case of the Earl of Wemyss against Montgomery.

The procedure in the sale under challenge, appears to us to have been in confortuity with the injunctions of the statute 42d Geo. III. c. 116. By the 61st section of that statute, the Court are authorized to direct a sale of a part of the estate that may be judged adequate to the redemption of the land-tax. By the 63d section they are authorized, in certain circumstances, to direct a sale of a part more than sufficient for that purpose, and the mode is pointed out in which the surplus money, after redemption of the tax, is to be disposed of. In neither alternative does the statute prescribe the form in which the petition of the heir of entail shall he drawn, or the words in which the judgment of the Court shall be expressed.

In this case, which was a sale of a part of the estate more than adequate to the redemption of the land-tax, the petition properly recites both the 61st and 63d sections of the statute; certain provisions in the former being applicable to the latter also. Further, it sets forth the amount of the land-tax to be redeemed, and the rent of the lands proposed to be sold.

If any farm, lands or tenements usually possessed together, are proposed to be sold, under the 63d section, the Court are empowered to authorize the sale, if it appears, either from the detached situation of such farm, lands or tenements, or any other circumstance, that they cannot be divided without loss, or that a sale of the whole is more eligible to the parties interested than the sale of a part. In Sir James Gardiner Baird's petition, it is set forth, that the lands proposed to be sold were usually let together, and that they were then under a lease of nineteen years' endurance, sixteen years of which were unexpired; that they were detached and separated from the other parts of the estate by the Water of Leith; that the sale would in no respect injure the remainder of the estate; that they were the most proper part to be disposed of; and that the surplus money, after redeeming the tax, might be employed in extinction, pro tanto, of a considerable debt affecting the estate. The petition farther sets forth, that intimation had been made to the next substitute in terms of the 63d section,—an intimation unnecessary in the case of a sale under the 61st section.

Satisfactory evidence of all these averments, written and parole, was laid before the Court; in particular, a plan was produced exhibiting the extent of the farm proposed to be sold, its detached situation, and the mode in which it was enclosed and intersected; and judgment was finally pronounced in terms of the prayer of the petition.

It is true, that neither the petition nor the judgment bears in express terms, that the lands could not be divided without loss. But the statute does not require that in either the one or the other this should be expressed. The petition, however, sets forth circumstances from which the statute declares that this may be inferred; these circumstances are satisfactorily proved, and the Court “Find it instructed, that these lands can be sold without injury to the remaining part of the estate; and that, considering all circumstances, they are the most proper parts of the said estate to be sold.” This finding necessarily implies, reference being had to the facts stated in the petition, and to the proof adduced, that it appeared to the Court that the lands could not be divided, or sold separately, without loss. Further, on carefully considering the proof at the present time, we have arrived at the same conclusion; and we arc of opinion that the proceedings were not only correct in point of form, hut that the judgment of the Court was well founded on the merits.

The Lord Ordinary's interlocutor, in all the findings of which, except the fourth, we entirely concur, seems, from his Lordship's note, to rest chiefly, if not exclusively, on the judgment of the House of Lords in the case of Eliott. We are of opinion that that case is distinguished from the present in many important particulars. The petition of Sir William Eliott did not recite the 63d section of the statute, or refer to it expressly in any way; and it did not specify the amount of the land-tax to be redeemed. The intimations given of the intention to sell, related to the 61st section only; and the interlocutor of the Court refers to those intimations and to no other. It appears that a notice was given to the next substitute, but in a manner altogether informal and inept; and that that notice was not before the Court at the time the proof was allowed. The Court, therefore, were led to believe that the sale was to proceed under the 61st section; and no proof was either asked or allowed of any circumstance's necessary to warrant a sale under the 63d section. It was not set forth by the petitioner, that the lands proposed to be sold were detached; no plan was produced to show their relative situation, and in fact it is stated in subsequent proceedings that they lay in the heart of the barony of Halrule, and cut the barony in two. It was not set forth, nor was it proved, that they were usually let together; in fact, none of them had been let together previously to the then subsisting lease, and part of them were at the time subset and possessed separately. The duration of the lease was not stated or proved; and it was concealed from the Court that a large grassum had been paid to the landlord. Thus it appears, that there was no evidence before the Court that the lands could not be divided; that an adequate part might not have been sold; or that a sale of the whole was more eligible; and the interlocutor cannot be accounted for, except on the supposition that the Court had been entirely misled, and were proceeding on the erroneous supposition that the sale was to be made under the 61st section of the statute. If an investigation had been instituted in that case similar to the investigation which took place in the present, it would have appeared at once that the proposed sale was a palpable and gross fraud against the substitute heirs, and utterly unjustifiable under the statute. In all these respects, the case of Eliott is contradistinguished from the present. The judgment of the House of Lords did not rest on the circumstance, that it was not set forth in the petition, or found in the interlocutor, that the lands could not be Bold separately, or that the sale of the whole would be more eligible; but expressly on the circumstance that the Court, when they pronounced their interlocutor, had not evidence before them to that effect. But, in the present case, we think that there was evidence before the Court, on which their judgment proceeded, and by which it was fully justified. We are therefore of opinion, that the interlocutor of the Lord Ordinary should be altered, and the defender assoilzied from the con-elusions of the action.

Lord Balgray.—I concur entirely in the foregoing opinion.

Lord Jeffrey.—I concur on the whole in this opinion, though with very great difficulty. Looking merely to the terms of the judgment of the House of Lords in the case of Eliott, and to the substantial identity of the evidence in that case and the present, it seems scarcely possible to distinguish between them. But considering the judgment in Eliott's case to have gone to the full extent of justifiable strictness, even on the assumption that the evidence was there viewed with reference to the terms of the application it was brought to support, I think it reasonable to suppose that it did proceed on such a reference, and is not therefore of binding authority in any case where the terms of the application are different. The points of difference in the present case are well brought out in the preceding-opinion; and they amount to no Jess than this,—that whereas it is here perfectly clear that the application was for a warrant to sell under the 68d section, this was so far from being clear in Eliott's case, that the natural inference from the whole procedure is, that a sale under the 61st section only was intended. Now, it appears to me that the House of Lords might very well have decided that the general evidence produced in that case was not sufficient to fix or correct the ambiguity of the application and previous procedure, so as to warrant an actual sale under the 63d section; and yet that the Court of Session might, without contravening that authority, find similar evidence sufficient to support an application, in no respect ambiguous, but plainly under that 63d section. In the former case the Court may be held never to have actually sanctioned, or intended to sanction, the sale under the 63d section which was actually made; and that it was therefore without legal warrant, and consequently null; while in the latter, all that could be said was, that they were too easily satisfied that the facts required to justify such a sale were established, or had fallen into an error of judgment in estimating the sufficiency of the proof, which would by no means infer such a consequence:—and it is upon this distinction that, regretting and disapproving the vagueness of the evidence actually produced, I still think myself warranted in concurring in the opinion that the defender is entitled to absolvitor.

The cause was now put out for final advising.

Lord Justice-Clerk—I will not repeat the opinion I formerly delivered, which is the same as that of the majority.

Loan Meadowbank.—I concur very much with Lord Jeffrey.

Lord Glenlee.—I am very happy that the opinions of the other judges have put it out of our power to decide contrary to them, though my leaning was very strong towards the Lord Ordinary's interlocutor.

Lord Medwyn.—It would certainly be attended with great injustice if the heir of entail were successful here, and therefore I am sensible I am exposed to a bias in judging, and I am happy to think that the decision does not depend on my vote, though I do concur with the majority in thinking there is a sufficient distinction between this case and that of Eliott to warrant our giving a different judgment from that which was there pronounced. There is a clear distinction between an error in the judgment of the Court, and one in the proceedings bringing the matter before them. It will not be pretended that a mere error of judgment on the part of the Court would invalidate the proceedings if properly brought before them; and I think it was brought before them here that this was a sale under the sixty-third section. There were only eighteen acres, which of itself might be enough to show that they must be sold together; and the party is not to suffer if the Court did not require more evidence; and though the words in the judgment of the House of Lords, in the case of Eliott, are very broad, still we must apply them to the case before the House; and, on these grounds, I agree with the majority.

The Court accordingly, while they refused the pursuer's reclaiming note, altered on that of the defender, and assoilzied him,

Solicitors: Gibson-Craigs, Wardlaw,& Dalziel., W.S.— W. A. G. & R. Ellis, W.S.—Agents.

 SS 13 SS 927 1835

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