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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Speirs v. Speirs' Trustees [1877] ScotLR 15_53 (6 November 1877) URL: http://www.bailii.org/scot/cases/ScotCS/1877/15SLR0053.html Cite as: [1877] SLR 15_53, [1877] ScotLR 15_53 |
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Page: 53↓
An heir of entail in possession of an entailed estate died leaving a disposition of the estate, under which, upon the narrative that he believed the entail was invalid, he conveyed it to trustees for certain purposes. Immediately after his death the trustees completed infeftment upon the disposition and entered into possession— held that the next heir of entail, who had brought a reduction of the disposition, was entitled to have the estate sequestrated and a judicial factor appointed to manage it until the question of the validity of the deed was settled.
The late Alexander Graham Speirs possessed the estate of Culcreuch, in the county of Stirling, under a deed of entail executed in the year 1780, and the estate of Colquhoun Glins under a deed of entail executed in the year 1850. He died on July 23, 1877, having executed a disposition dated 22d March 1877, whereby, on the narrative that he had been advised he was entitled to hold the said estates in fee-simple by reason of defects in the deed of entail under which he held the same, he disponed them to and in favour of his wife Mrs Mary Buchanan Murray or Speirs, Peter Alexander Speirs, and Charles Tennant Couper, but under declaration that the same was granted in trust for various ends and purposes stated in the disposition. Immediately after the testator's death, and before his funeral, the trustees, in compliance with a letter of instructions addressed to them by the deceased, took infeftment in the said lands and estates by recording the disposition in the Register of Sasines for the county of Stirling on July 26, 1877. Dame Anne Home Speirs, wife of Sir George Home, Baronet, and the heir under the said deeds of entail, immediately raised an action of reduction against the trustees, in order to have the disposition set aside and the trustees removed from the lands and ordained to deliver the writs and titles to her. She further presented this petition to the First Division of the Court, praying ‘for sequestration of the estates, and for the appointment of a judicial factor to manage them until the question of the validity of the entail was settled.
The trustees lodged answers (1) objecting to the competency of the petition as brought before the Inner House instead of before the Lord Ordinary—cf. Act 20 and 21 Vict. cap. 56, sec. 4; and (2) resisting the application, on the ground that the appointment of a judicial factor was unnecessary for the interim preservation of the estate. They stated what the defects in the deeds were on which they relied.
Page: 54↓
Authorities—(1) On the competency— Catton v. Mackenzie, March 16, 1870, 8 Macph. 713; Rintoul, Dec. 20, 1862, 1 Macph. 214; Campbell v. Campbell, June 27, 1863, 1 Macph. 991. (2) On the merits— Pringle Elliot v. Scott and Others, March 27, 1843, 5 D. 1075; Catton v. Mackenzie ( supra); Thorns v. Thorns, March 27, 1865, 3 Macph. 776.
At advising—
The circumstances of the case are peculiar, but yet they exactly resemble a previous case decided in this Division of the Court—the case of Pringie Elliot, May 27, 1843, 5 D. 1075. There Mr Pringie was heir of entail in possession of two entailed estates, and uniformly acted as such, when on his deathbed he made a general and special trust-disposition and settlement which had for its direct end the breaking of the deed of entail. Upon this trust-deed infeftment was taken on the day of the testator's funeral.
In the present case the testator left a letter of instructions to the trustees enjoining them to take infeftment before his funeral. He died on 23d July, and the trustees, in fulfilment of his orders, took infeftment, and had the conveyance recorded upon the 26th July, being before the funeral. Now, I need hardly say that the heiress of entail could not anticipate this action, especially as she seems to have had no knowledge of the existence of the conveyance, and she now presents this petition on the ground that possession obtained in this way by the trustees can go for nothing, and that the estate passes by force of the destination in the entail to the petitioner unless a flaw be found to justify the trust-disposition. The petitioner therefore claims that he has a right to have the estate put under judicial care until she has had an opportunity of setting aside the new disposition.
It appears to me that these circumstances correspond exactly to the case of Pringie Elliot. Mr Elliot and his advisers were not perhaps as ingenious as Mr Speirs and his, but they were shrewd enough to see that if they took infeftment as fast as possible it would be a good point in their favour if any question arose, and accordingly they took infeftment on the day of the testator's funeral, or, as it was said, they took infeftment “upon his grave.” In short, in this case, as in Pringie Elliot's case, the alleged possession can go for nothing, and I do not see that anything further is said. The two cases are identical; and what did the Court do in the former? It granted the petition, and the remarks which fell from the Court in that case are very appropriate to the present case. I am for following that precedent, and think we ought to grant the prayer of the petition.
The Court pronounced this interlocutor:—
“The Lords having resumed consideration of the petition, with the answers for Mrs Speirs and others, No. 9 of process, and heard counsel, Repel the objection to competency: Sequestrate the lands and estates contained in the deeds of entail mentioned in the petition, and the rents and proceeds of said lands and estates, as prayed for: Nominate and appoint the Honourable Francis Jeffrey Monereiff, chartered accountant, Edinburgh, to be judicial factor upon the said lands and estates, with the usual powers, he always finding caution before extract; and decern.”
Counsel for Petitioners— M'Laren—Mackintosh. Agents— Hope, Mann, & Kirk, W.S.
Counsel for Respondents—Lord Advocate (Watson)—Kinnear—Keir. Agents— A. & A. Campbell, W.S.
