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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Petition - Mosman [1867] ScotLR 3_178 (25 January 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0178.html Cite as: [1867] ScotLR 3_178, [1867] SLR 3_178 |
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Page: 178↓
Held that an heir of entail in possession is entitled, under 11 and 12 Vict., c. 36, to charge the entailed estate with improvement expenditure to the extent of two-thirds thereof, whatever may be the “free rent” of the estate.
This was a petition for authority to charge an entailed estate with improvement expenditure. The amount of the expenditure was £2685, and the question raised was whether the petitioner was entitled to charge the estate with two-thirds of that sum, or whether he was limited by the terms of the Montgomery and Rutherfurd Acts to two-thirds of the free rent of the estate, which, in this case, amounted to less than two-thirds of the sum
Page: 179↓
expended. The point was reported by Lord Mure and thus explained in his
“ Note.— The Lord Ordinary has taken this case to report, upon the matter reserved in his interlocutor of the 14th of July last, because a question is involved of great importance in the application of the Act 11th and 12th Vict., cap. 36, which was under the consideration of the Court in the case of Hamilton, 11th March 1857. It is whether in charging an entailed estate under sections 16th and 18th of that Act, for mansion-house or other improvements of the nature contemplated by the Act 10th George III., but constituted under section 16th of the Act 11 and 12 Vict., the petitioner is tied down by the limitations of the Montgomery Act, as to the amount of expenditure for which an estate may be charged; and, in particular, by the provisions that an heir shall not be entitled to charge for such improvements on a larger sum than two years' or four years' free rent of the estate, as the case may be. In the present instance the petitioner seeks to charge for mansion-house improvements, on the footing that he is not subject to any such limitation. But when, upon the case coming back from the reporter in July last, the Lord Ordinary intimated that he was not prepared—having regard to what took place in the case of Hamilton—to adopt that construction of the statute, and would probably report the case for decision, the petitioner craved to be allowed to charge the estate, in the meantime, with the sum for which he would be entitled to charge, on the supposition that the limitation in the Act applied—to which course the Lord Ordinary saw no objection. An interlocutor to that effect was accordingly pronounced, reserving consideration of the larger question. The circumstances under which that question is raised are distinctly brought out in Mr Murray's report; and as the same point appears to have been argued, and anxiously considered, though not decided, in the case of Hamilton, the Lord Ordinary has not considered it necessary, in reporting the case, to enter into any further explanation of the arguments.”
After hearing counsel for the petitioner, the Court appointed him to give in an argumentative minute on the point raised, and to-day found that the petitioner was entitled to charge the estate to the extent of two-thirds of his improvement expenditure, and that the free rent of the estate was not to be taken into account as an element in calculating the amount thereof.
Counsel for Petitioner— Mr Duncan. Agents— M'Allan & Chancellor, W.S.
