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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Hon. Marianne Mackay Hamilton Fullarton - Giffor - Forsyth v. Sir Hew Dalrymple Hamilton - Thomso - Jameson [1822] UKHL 1_Shaw_265 (26 July 1822) URL: http://www.bailii.org/uk/cases/UKHL/1822/1_Shaw_265.html Cite as: [1822] UKHL 1_Shaw_265 |
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Page: 265↓
(1822) 1 Shaw 265
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
2 d Division.
No. 49.
Et è contra.
Subject_Res Judicata — Prescription — Tailzie. —
An heir of entail having brought an action of reduction of certain deeds as in contravention of the entail, and concluding for forfeiture of the heir in possession, and to find her entitled to the estate; and the defender having been assoilzied; and she having thereafter brought another action founding on the deeds as valid, and as to giving to her a right to the estate in preference to a succeeding heir—Held, (affirming the judgment of the Court of Session,) that the decree of absolvitor did not form a res judicata to bar the second action; but the Court of Session having assoilzied on the merits, the House of Lords remitted for review, and for the opinions of all the Judges.
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John Master of Bargany predeceased his father, without having been infeft; and thereafter his father having died, William, the second son, (and who was now Lord Bargany,) made up titles, without regard to the entail, by service and retour, as nearest lawful heir-male of his father. The entail, however, was afterwards, on the 27th of July 1694, recorded in the register of tailzies; and he thereupon obtained himself served heir of tailzie and provision in general to John Master of Bargany, his brother, in virtue of the deed 1688; but he was never infeft.
John Master of Bargany had, by his marriage with Miss Sinclair, an only daughter, Joanna Hamilton, who in 1707 married Sir Robert Dalrymple, eldest son of Lord President Dalrymple, proprietor of the estate of North Berwick. By their contract of marriage, the Lord President entailed his estate of North Berwick, reserving his own liferent, in favour of Sir Robert and his heirs in a certain order:—
“Declaring, that in case there should be more sons than one of the foresaid marriage, and that the succession of the estate of Bargany shall fall and devolve upon the heirs-male thereof, then and in that case, the said heir accepting of the said estate of Bargany, and the descendants of his body, shall ipso facto amit and lose all right and interest he had or could pretend to the lands, &c. of North Berwick and others hereby disponed, and the succession thereof shall immediately devolve to the next son of the said marriage.”
The Lord President, however, reserved a power to discharge and qualify any of the provisions of this deed, and to renew the same at pleasure.
Sir Robert, and his wife Joanna Hamilton, died before the Lord President, leaving three sons and two daughters, viz. Sir
Page: 268↓
In the mean while William Lord Bargany died, leaving a son James, and a daughter Grizzel. James (who now became Lord Bargany) was then served heir of tailzie and provision in general to his father William, and thereupon took possession of the estate, but was never infeft. His sister Grizzel married a Mr. Buchan, by whom she had an only daughter, Mary Buchan.
James having died without issue, a competition arose for the estate,—the claimants being first, Sir Hew Dalrymple, the son of Joanna Hamilton, and grandson of John Master of Bargany; second, Mary Buchan, daughter of Grizzel, and grand-daughter of William Lord Bargany; and, third, Sir Alexander Hope, who was the son of Nicolas, daughter of John Lord Bargany, the entailer, and consequently his grandson.
An obstacle, however, arose against the claim of Sir Hew,—at least to the effect of taking both Bargany and North Berwick,—in consequence of the prohibition which Lord President Dalrymple had inserted in his entail. His Lordship, however, in virtue of his reserved power, executed a deed proceeding on this narrative:—
“Considering that I have full power and faculty reserved to me to discharge that quality and condition contained in the contract of marriage last mentioned, disabling the heir-male of the marriage, called to the succession of the tailzied estate of North Berwick, under an irritancy, to accept the estate of Bargany, and to discharge the said irritancy, and so to enable Hew Dalrymple, the eldest son of the marriage, to become heir of tailzie to James Lord Bargany, last deceased, and at the same time to enable and capacitate him to bruik and enjoy the tailzied estate of North Berwick; and also considering that there is nothing in the tailzie contained in the contract of marriage of the Master of Bargany to hinder the same person to be heir to the estate of Bargany, and of any other estate, providing that the heir of Bargany do assume, and always bear and retain the name and arms of Hamilton of Bargany as their proper name and arms; neither is there any thing in the tailzie of the estate of North Berwick to hinder the heir of North Berwick to enjoy and possess the estate of Bargany, and to use and always retain the name of Dalrymple of North Berwick jointly with that of Hamilton of Bargany, except the clause above specified, which I have power to discharge; and upon all these considerations, at
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present I am fully satisfied that it is the interest of both families that the said Hew Dalrymple be enabled so far to accept of the succession to the estate of Bargany, as to be served and retoured heir of tailzie to that estate, and thereby be in a condition to denude himself thereof in favour of the next person after him called to the succession by the tailzie of the said estate of Bargany, which is the most regular and effectual manner of conveying the said estate in favour of the next person in the line of succession by the tailzie of the said estate of Bargany.”
On this narrative he stated, that “I am therefore resolved so far to exercise the powers and faculties reserved to me to alter, innovate, qualify, revoke, or discharge the clauses and provisions contained in the contract of marriage last mentioned, as to enable the said Hew Dalrymple to accept of the succession to the estate of Bargany, and to obtain himself served and retoured heir of tailzie to the said estate. Therefore I do hereby alter, revoke, and recal the foresaid provision in the said contract of marriage, whereby he is disabled to accept of the succession of the estate of Bargany, without incurring the irritancy above mentioned relating to the estate of North Berwick, and whereby in the present case both estates are not allowed to be established or subsist in one person for any time longer or shorter; and in consequence thereof I do hereby discharge the irritancy subjoined to the said prohibitory clause, whereby it is provided that the heir of North Berwick, and the descendants of his body, shall forfeit his right and title to the estate of North Berwick, in case of his accepting of the succession to the estate of Bargany; and I do hereby authorize and allow him to be served and retoured heir of the tailzied estate of Bargany, according to the provisions and conditions contained in the tailzie of the said estate of Bargany. Accordingly I do, by virtue of the said faculty reserved to me, authorize and allow him to take upon him, use, and retain the name and arms of Hamilton of Bargany, as his proper name, arms, title, and designation, so long as he is and shall be allowed to continue in the right of both estates of Bargany and North Berwick, and no longer; provided always, that he do also use and retain the name of Dalrymple of North Berwick, with such addition to the proper arms of Bargany as is allowed and consistent with the tailzie of Bargany; reserving always full power and liberty to me to revoke, alter, or innovate what I have hereby granted and allowed to the said Hew Dalrymple, and to oblige him to denude himself of the estate of Bargany at such a time and in such manner as he shall be ordained and appointed to do, by a writing under my hand, at
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His Lordship also at the same time executed another deed, in which he stated— “After full and deliberate reflection and mature consideration in what manner it is just and reasonable for me to exercise the powers and faculties lodged in me by the foresaid contract of marriage, and still reserved to me by the exercise of it in the writ above mentioned in favour of the said Hew Dalrymple, allowing him to be served and retoured heir of tailzie to the deceased James Lord Bargany and his predecessors, notwithstanding that he is now fiar of the estate of North Berwick, and to enjoy the fruits and emoluments of the estate of Bargany without incurring any irritancy or penalty, so long as he shall be allowed to continue in the right of the said estate of Bargany, I, the said Sir Hew Dalrymple, do hereby, in virtue of the said power and faculty reserved to me, allow the said Hew Dalrymple to continue in the possession of the estate of Bargany during all the days of my life, and to continue to use and bear the name, title, and arms of Hamilton of Bargany, as his own proper name, title, and arms, during the space aforesaid, with such additions with respect to my name, title, and arms, as may be consistent with the said tailzie of the estate of Bargany, and no longer; and I appoint and ordain the said Hew Dalrymple, fiar of the estate of North Berwick, and his heirs, to divest and denude himself omni habili modo of his right and title to the estate of Bargany in favour of John Dalrymple, his second brother, and the heirs of his body; which failzieing, to Robert Dalrymple, now his third brother, and the heirs of his body; which failzieing, to the other heirs appointed to succeed to the estate of Bargany by the tailzie thereof, and that within the space of six months after my decease, in ample form.”—“Reserving to the said Hew Dalrymple the haill fruits and emoluments of the estate of Bargany from the decease of the said James Lord Bargany to the period at which he is hereby appointed to divest and denude himself of the same; declaring that his refusing or delaying to denude himself of the foresaid estate of Bargany, after the term and period hereby appointed for that effect, or his continuing to possess and intromit with the rents and emoluments of the said estate of Bargany after the foresaid term and period appointed for denuding himself, shall import an irritancy of his right and title to the estate of North Berwick, which estate of North Berwick shall ipso facto fall and accresce to the said John Dalrymple and the heirs-male
Page: 271↓
In consequence of the permission contained in these deeds, Sir Hew, pending the competition, took possession, on his apparency, of the estate of Bargany, granted factories, and assigned the rents.
After a great deal of litigation between the competing parties, the House of Lords, on the 27th March 1739, “ordered and adjudged, that the said estate of Bargany doth descend to the said Sir Hew Dalrymple, the eldest son of the daughter, and only child of John Master of Bargany, and that he ought to be served heir of tailzie and provision to the said James Lord Bargany.” *
In the mean while the Lord President died; and after the above decision, Sir Hew Dalrymple, on the 13th of August 1740, executed a deed proceeding on a narrative of the entail of the estate of North Berwick, and of the result of the competition, in these terms:
“And now I, the said Sir Hew Dalrymple, having duly considered the foresaid tailzie of the estate of North Berwick, contained in the foresaid contract of marriage, and also the tailzie of the estate of Bargany above mentioned, dated the 19th day of June 1688 years, and that it appears to have been intended by the parties to the contract of marriage betwixt the said Sir Robert Dalrymple and Mrs. Joanna Hamilton, my father and mother, that the said two estates of North Berwick and Bargany should be separately taken and possessed by the heirs of the marriage betwixt the said Sir Robert Dalrymple and Mrs. Joanna Hamilton, except in the cases therein excepted; and that in case I should now take the succession of the estate of Bargany, I would thereby forfeit the right to the estate of North Berwick, for myself and my descendants, in favour of John Dalrymple, counsellor at law, my brother-german; and I being fully resolved to take and hold the estate of North Berwick, and to allow the estate of Bargany to descend to and be taken by the said John Dalrymple in the terms of the entail of the estate of Bargany; therefore, and for the love and respect which I have and bear to the said John Dalrymple, and in consideration of the settlements of the estates of North Berwick and Bargany above recited, wit ye me, with and under the provisions after mentioned, to have repudiated, likeas I by these presents do repudiate and refuse to accept the succession of the said estate of Bargany, and that to and in favour of the said John
_________________ Footnote _________________
* See 1. Craigie and Stewart's Appeal Cases, No. 47.
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No notice was taken in this deed of those which had been executed by the Lord President, with a view to the competition, and it was not inserted in any record.
On obtaining this deed of repudiation, John Dalrymple, under the name and designation of John Hamilton, second son of the deceased Sir Robert Dalrymple, raised an action of declarator against Sir Hew and the other substitutes under the entail of Bargany, in which, after narrating that entail, and the deed of repudiation executed by Sir Hew, he concluded, “that it ought and should be found and declared, by decreet of the Lords of Council and Session, that the said John Hamilton, pursuer, hath the only right and title to the succession to the said estate of Bargany, and that he ought to be served heir of tailzie and provision to the said James Lord Bargany in the said lands and estate of Bargany, comprehending the several lands, baronies, and others contained in the tailzie made by John Lord Bargany in the contract of marriage betwixt the said John Master of Bargany and Mrs. Jean Sinclair, after the form and tenor of the writs before narrated, and laws and practice of this realm, used and observed in the like cases.” Decree in absence was pronounced on the 26th of February 1741, and by which the Court “found and decerned and declared conform to the conclusions of the libel.” John Hamilton then obtained a general service, the retour of which stated, that “quod quondam Jacobus Dominus Barganie, unicus filius demortui Gulielmi Domini Barganie, fratris quondam Joannis Magistri de Barganie, et qui Gulielmus
Page: 273↓
By virtue of this general service, John Hamilton acquired right to the procuratory of resignation in the entail 1688, (which had never been executed,) and on the 26th of July 1742 he resigned those parts of the estate of Bargany which held of the Prince, and obtained a charter of resignation under the Great Seal, the dispositive clause of which was thus expressed:—
“Dilecto nostro Joanni Hamilton de Barganie, juris, consulto, filio secundo demortui Domini Roberti Dalrymple de Castleton, procreat. inter ilium et demortuam Dominam Joannam Hamilton, unicam filiam demortui Joannis Magistri de Barganie, et sic hæredem fæmellam demortui Joannis Domini Barganie ejus avi, et hæredibus quibuscunque ex corpore dict. Joannis Hamilton, quibus deficien. aliis hæredibus quibuscunque ex corpore dict. DominæJoannæHamilton procreat. inter illam et dict. Dominum Robertum Dalrymple, absque divisione; quibus deficien.,aliis hæredibus fæmellis ex corpore dict. demortui Joannis Domini Barganie absque divisione, hæres fæmella natu maxima, et descendentes ex ejus corpore omnes alias hæredes portionarias, semperexcluden., et absque divisione succeden.; quibus deficien.,hæredibus masculis ex corpore nunc demortui Domini Joannis Houston,”
&c. Then follow the other substitutions in the original entail of Bargany as already recited, together with the prohibitory, irritant, resolutive, and other clauses and limitations contained in this deed.
The quæquidem clause, after deducing the titles from the deed of entail, and mentioning the procuratory of resignation therein contained, stated, that “et ad quam procuratoriam resignationis, terras aliaque inibi content. dict. Joannes Hamilton de
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In like manner, John Hamilton, by executing the procuratory of resignation in the entail 1688, obtained charters of those parts of the lands which held of subjects superior; and on these respective deeds he was duly infeft in August and September 1742.
Under these titles he thenceforth possessed the estate of Bargany; but when he had arrived at an age at which he had scarcely any prospect of issue, and his elder brother, Sir Hew, being still alive, he executed a deed, on the 21st of June 1780, in these terms:—
“Be it known to all men by these presents, me, John Hamilton of Bargany, Esq. for certain causes and considerations me moving, and in order to give effect to the entail executed by John Lord Bargany in his son's contract of marriage, of date the 19th day of June 1688 years, and to the conditions upon which my own right and title to the lands under mentioned was founded, to have given, granted, and disponed, likeas I hereby give, grant, and dispone to and in favour of myself, and the heirs of my body, without division; whom failing, to Sir Hew Dalrymple, Bart. my brother, and the heirs of his body, without division; whom failing, to the next heirs of the body of John Lord Bargany aforesaid, and the other heirs of tailzie contained in the foresaid deed of entail, in the order therein expressed, and which heirs of entail are herein after insert, word for word, as in the said deed of entail.”
On this deed infeftment was taken on the 25th of October 1780.
In the mean while, Dr. Robert Hamilton, the immediate younger brother of John, had died without issue; and as John himself had no children, the party who was next entitled to succeed to the estate (on the supposition that Sir Hew and his heirs had no right) was the appellant Mrs. Fullarton, the heir and representative of their eldest sister, who was daughter of Joanna Hamilton.
Sir Hew died in 1790, leaving a son, Sir Hew, (the second;) and in 1793 Mrs. Fullarton raised an action of reduction against John Hamilton, and against Sir Hew, (the second,) calling for production of the deed of repudiation of 13th August 1740, the decreet of declarator obtained by John Hamilton in 1741, his general service, and charter and sasine, together with the
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“and that the said pursuer ought to be served heir of tailzie and provision to the said James Lord Bargany in the said lands and estate of Bargany.”
In defence against this action John Hamilton founded on his charter and sasine in 1742, with forty years possession, as a sufficient title to exclude, and therefore opposed great avizandum being made. On the other hand, Mrs. Fullarton contended that she had been in minority during the greater part of that period, and therefore prescription had not run. To this it was answered by John Hamilton, that the exception of minority did not apply in the case of entails, because any one of the substitutes was entitled to have objected to the deeds; and if such a plea were sustained, prescription could never run against an entail. Lord Justice-Clerk Macqueen found, “That, in computing the period of prescription, the years of the pursuer's minority are not to be deducted; and in respect that the charter and sasine 1742 are ex facie unexceptionable, and that no nullity or objection does from thence appear to lie against them, and that it is averred by the defender, and not denied by the pursuers, that the defender has, in virtue of that investiture, possessed the estate of Bargany from the date thereof to the commencement of the present action, without any challenge or interruption, finds that the defender's right to the estate is secured to him by the positive prescription, and that he is entitled to hold and possess the estate under the foresaid investiture in time coming, and that the same is sufficient to exclude the title of the pursuers in this reduction; and therefore alters the former interlocutor, and assoilzies from the reduction; reserving to the pursuers to insist in the declaratory conclusions of their libel, and particularly
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Immediately after this judgment, John Hamilton having died without issue, and Sir Hew the second being also dead, appearance was made by the present respondent, his eldest son, who reclaimed; but the Court, on the 6th of December 1796, adhered.
* He then appealed to the House of Lords, by whom it was ordered, on the 18th December 1797, “That the cause be remitted back to the Court of Session in Scotland to review the interlocutors appealed from, and to consider how far the validity of the title to exclude, set up by the defender (Sir Hew,) is in this case involved with the title set up by the pursuer to sustain the action of reduction and declarator, as having become the nearest substitute under the deed of entail, in the manner alleged in her behalf; and if the Court shall hold these questions to be in this case involved with each other, that they do pronounce an interlocutor for or against that title, and also on the effect which such
_________________ Footnote _________________ * See Mor.
voce Prescription, p. 11171. In the Respondent's Case, p. 7. the following explanation of the judgment is given:— “The Judges were unanimously of opinion in favour of the interlocutor of the Lord Ordinary, and held it to be clearly established in law, that the character of a substitute, under which the appellant claimed, did not entitle her to have her minority deducted from the years of prescription. But when judgment was about to be given, it was for the first time suggested, on the part of the appellant, that a distinction might be traced between her situation and legal character under the entail of Bargany. and that of a substitute, as to which character it had been found by many adjudged cases that minority could not be pleaded. She asserted that in
this preliminary stage of the cause, in arguing her objection to the exclusive title, she was at liberty to assume as true, not only all the facts alleged in her summons, but all the conclusions in law which were there deduced from them; in other words, that she was entitled hoc statu to hold that Mr. Hamilton and his brother, the late Sir Hew Dalrymple, had incurred fatal irritancies and contraventions, and had forfeited for themselves and their descendants, by which, in terms of the tailzie, and without the necessity of any declarator, she had become ipso facto the next heir of entail, and the estate had fallen and accresced to her as next heir, in the same manner as if the persons contravening, and their descendants, were naturally dead. From the moment of these contraventions, she maintained that she acquired a right of eviction, not contingent, but immediate; and therefore, although certain legal forms of declarator and service were requisite to establish her title and put her in possession, she had all along been the owner (vera domina) of the property, and as such entitled to plead her minority in bar of the prescription running against her. Instead of proving her allegations of contravention and irritancy, she maintained that she was entitled to assume them because she had set them forth in her summons.”
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In consequence of this remit, the Court, on the 23d of November 1798, “altered their former interlocutor, sustained the title produced by the defender as sufficient to exclude the pursuer's title, and assoilzied the defender from the conclusions of the reduction.” In reference, however, to a separate action of reduction, of a supplementary nature, and the conclusions of declarator, they found, on the 8th December 1798, “That it is still entire to the petitioner (Mrs. Fullarton) to insist in the separate action of reduction and declarator, and remitted to Lord Armadale, in absence of Lord Justice-Clerk, to hear the counsel of the parties,” &c. Lord Armadale thereafter found, “That the defender had, in this and the previous action, to which the present has reference, produced and referred to preferable and exclusive titles to the lands claimed by the pursuer;” and therefore assoilzied the defender.
Against these judgments Mrs. Fullarton appealed, and on the 3d of June 1801 the House of Lords ordered and adjudged “that the said interlocutors complained of in the said appeals be, and the same are hereby reversed; and it is declared and found, that the matters in the appellant's summonses complained of are
_________________ Footnote _________________ * In the Respondent's Case, p. 8. it is stated, that, in proposing the above remit, Lord Thurlow expressed himself to this effect, and that the Lord Chancellor Loughborough concurred in his observations:— “In the singular way in which this cause has been taken up in the Court below, what can this House do ? What has Mrs. Fullarton to complain of? Whether Sir Hew Dalrymple and his family, or Mr. Hamilton, took first or last, seems jus tertii to her. Sir Hew, she says, forfeited. It is necessary that this should be judicially declared. Can it be declared now that he is dead ? Professes to have great doubt if it could. Entertains much doubt if the repudiation can infer a forfeiture. Mrs. Fullarton calls it a disposition to John Hamilton, an extraneous person; arid next, when she wants to be rid of him, she says he forfeited, because he was an heir who accepted of the repudiation. Her plea must be referred to her summons. The decree finds her entitled to deduct her minority, because she became next substitute. How did the Judges who were for this decree find out that she was next substitute ? They assume it, it is said. If she had stated facts from whence that necessarily followed, he would have understood them; but as it is not a necessary inference from the facts alleged —as that is a point yet to be discussed—a point of law not decided by the Court below—his Lordship said he was not prepared to pronounce, nor did he think this House could pronounce, or hold her to be the nearest substitute. Before doing so, their Lordships must be satisfied that she has stated enough to prove it; and as this has not been decided upon yet by the Court below, the appellate jurisdiction cannot interfere. Every thing in law has been waived or assumed by the Judges who were for Mrs. Fullarton, where they ought to have assumed nothing but facts. He therefore concluded by proposing that the cause should be remitted, in order that the Judges might boldly and plainly state the legal principles applicable to the facts stated, on which the decision of it should be ultimately rested.”
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_________________ Footnote _________________
* In moving this judgment, it is stated in the Respondent's Case, p. 9. that, according to a note taken at the time by the Appellant's solicitor, the Lord Chancellor made the following observations in reference to the form of requiring a title to exclude to be exhibited, where no sufficient title was shown on the face of the summons:—
“If the title set out by the pursuer were in fact no title, it did not occur to me then, nor does it now, that there would be any inconvenience in going into a discussion of that title. If it appears that the pursuer has a title, then you may go into the defender's exclusive title; but why is the defender to be obliged to argue a plea in bar for ten long years, as in this case, if the pursuer has not stated a title to enable her to maintain the action ? It often happens in this country that the plaintiff states facts, (which may, however, be untrue,) and the law founded necessarily on these may be such, that the defendant can only perhaps with propriety rest his defence on a plea in bar. In the Court of Chancery here, what is termed a fishing bill is often filed, where the plaintiff, stating himself to be an heir at law, claims to see the title-deeds by which the defendant holds the property which belonged to the plaintiff's ancestor. The Court must take this title to be good in the first instance; and if an exclusive title or deed, for instance, with sixty years possession, be set up, the Court will then go into that exclusive title; but if the defendant say to the plaintiff, Your facts form no title against me the defendant, nor anybody else, the defendant has a right to demur to the action; and if there be nothing in the plaintiff's case, of course the Court never comes to the defendant's. It becomes me to say, that such a practice is founded in reason, and was in your Lordships' view when you sent back the former appeal to the Court of Session.
The remit was in these words'—[Here his Lordship read the same.]
The meaning of this was, that the Court should consider how far the title to pursue, set out by the pursuer, was involved with the title to exclude, set out by the defender. If the pursuer's title was invalid, of course they were not involved; if there was a valid title in the pursuer, then they were involved: in that case it was necessary to inquire into the pursuer's title, whether she was the nearest or a more remote substitute, and whether she had a right to deduct her minority or not; and if a contravention had been committed by the defender's authors, the Court was to consider what was the title of the pursuer by such contravention at this day. It was thus your Lordships' intention that the Court should first consider if the pursuer had a title, and afterwards, if necessary, consider the exclusive title under the prescription.
In this shape the cause went back to the Court; and I can scarcely find words to do justice to the elaborate consideration given to it in the Court below. Every question arising on this point has been searched to the bottom, and decided upon in fact; but the cause has been returned here with an interlocutor, saying no more than that the exclusive title is good, which seems to admit that the pursuer had a title of some kind or other.
But this is no answer to your Lordships' remit—no answer to the question, whether or not the pursuer has a title. You cannot imply from this answer whether a contravention has been committed or not—whether or not that contravention be purgeable—whether it can now be declared or not against the heirs of the alleged contraveners—whether the repudiation was a disposition or not—whether it was a contravention or not, and to be followed by forfeiture; nor whether any one of the acts and deeds of Sir Hew, or of John Hamilton, were contraventions or not.
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No further steps were taken by Mrs. Fullarton in relation to this matter till 1814, when the respondent Sir Hew having applied for an act of Parliament to sell part of the estate of Bargany, she appeared and made objections; in consequence of which it was declared, that nothing contained in the act should affect her claim, or that of any other heir of entail, to the estate of Bargany, if they any had. She then, with the view of trying the question of right to the estate, granted to Mr. Thomas Martin, writer in Edinburgh, a trust-bond for one million sterling, on which he raised an action of adjudication, and obtained decree from Lord Pitmilly; but his judgment was brought under review, and the proceedings were afterwards superseded till the issue of a reduction which she raised, calling for exhibition of the deed executed by John Hamilton in 1780, and of the titles made up by Sir Hew, founding on that deed, and concluding for reduction of them. Her main reason of reduction was, that in consequence of the deed of repudiation executed in 1740, with the charter and sasine of 1742, and the death of John Hamilton and Dr. Robert Dalrymple without issue, she had right to the estate by virtue of the original entail 1688, and it was ultra vires of John Hamilton to execute the deed of 1780. She therefore concluded to have it found, “that the said John Hamilton, by claiming, acquiring, and accepting of the said estate of Bargany, and entering into and holding possession of it under the settlements and titles foresaid, was personally under a legal obligation to implement and perform all the conditions and provisions, and was subject to all the clauses, prohibitory, irritant, and resolutive, contained in the said entail of 1688, and which had been recognised and repeated, at his own instance, as obligatory by the charter 1742, and infeftment thereon, and by the charters granted as aforesaid by John Earl of Cassillis
_________________ Footnote _________________ The Court were all of opinion, either that there had been no contravention—that such contravention was purgeable, or that no declarator could be brought at this time of day; and that the change of situation between the two prior heirs was no injury to the appellant, who stands precisely in the same situation as if no such change had taken place. They seem unanimous, with the exception of one Judge, who says nothing on the subject, that the pursuer had no title. After the most painful attention to this cause, and to the authority of the dead as well as of the living, I cannot represent the pursuer to your Lordships as having a title. It has thus appeared to me to be my duty to detail the circumstances of the case, to show, in my opinion, how the Court has failed in giving a proper answer to the remit. As, after the most anxious attention, I cannot be induced to think that Mrs. Fullarton has set out a sufficient title, I conceive that it will be necessary that your Lordships should make some declaration upon this subject. I therefore submit to your Lordships, that the interlocutors complained of ought to be reversed, and a declaration made, that the premises set out in Mrs. Fullarton's summonses do not sustain the conclusions of these summonses.”
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The declaratory conclusion as to her right was, “That by the terms of the foresaid contract of marriage and deed of entail 1688, charter 1742, and infeftment thereon, expede by the said John Hamilton of Bargany, charters from John Earl of Cassillis and Sir John Whitefoord aforesaid, and infeftments thereon, the said Marianne Mackay Hamilton, pursuer, is next in the order of sucession, failing the said John Hamilton and the heirs of his body, and the said Robert Dalrymple and the heirs of his body; and they having accordingly failed, she has the only good and undoubted right and title to be served heir of tailzie, under the said investiture, to the said John Hamilton of Bargany, to the, exclusion of the descendants of the late Sir Hew Dalrymple, the eldest brother of the said John Hamilton; and that the said pursuer ought to be served heir of tailzie and provision to the said John Hamilton of Bargany in the said lands and estate of Bargany and others foresaid, after the form and tenor of the said deed of tailzie 1688,” &c.
In defence against this action, the respondent Sir Hew contended that the judgment of the House of Lords in 1801 formed
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On the other hand, Mrs. Fullarton maintained,—
1. That the two actions were essentially different; that the former action proceeded on the assumption that John Hamilton and his brother Sir Hew, by the deeds of repudiation, and the charter of 1742, and the disposition of 1780, had contravened the conditions of the original entail, and thereby forfeited their right to the estate, so that she was entitled to succeed to it, and to be served to James Lord Bargany; whereas, in her present action, and conformably to the judgments which had been pronounced, finding that she had not shown sufficient grounds for setting aside these deeds, and that they were therefore to be held valid, she claimed the succession to the estate by virtue of these deeds, and as being the next heir-substitute after John Hamilton, in terms of the etail 1688, and to be served heir to him, and not to James Lord Bargany.
2. That her claim was well-founded on the merits;
First, Because, by the repudiation of Sir Hew in 1740, and the proceedings which followed, the succession had opened in favour of John Hamilton, and the heirs called posterior to him by the entail 1688; that such being the case, the succession could not revert to the prior class of heirs, of which the respondent Sir Hew was a member, but belonged to her, as the next heir of tailzie after John; and that the condition in the deed of repudiation in favour of Sir Hew and his descendants could not burden the succession, as it was not engrossed in the titles of the estate, and had never appeared on record.
Second, Because the devolution to the posterior heirs was fortified, both by the vicennial prescription of John Hamilton's retour, and by a prescriptive possession by him for more than 40 years on the charter 1742, by which he, and the heirs of his body, were called prior to Sir Hew, and thereby establishing, by prescription, the right of the posterior heirs to the exclusion of the prior branch; and,—
Third, Because she was the heir called under the charter 1742, in which the destination was ‘aliis hæredibus quibuscunque’ of the body of Joanna Hamilton, which necessarily meant the other heirs of her body of the same character as John Hamilton,—that is, heirs posterior to that class to which Sir Hew belonged.
By Sir Hew it was maintained,—
1. That the matters contained in the present summons were identically the same as those contained in the former one, seeing that, in both cases, Mrs. Fullarton maintained that Sir Hew, the brother of John, and his descendants, had forfeited their right to
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2. That on the merits Mrs. Fullarton was not entitled to prevail;
First, Because, as there was no declarator of forfeiture against his grandfather, Sir Hew, who had never made up titles under the entail, the rights of his descendants (who were heirs of entail, and did not represent him) could not be affected by his deed of repudiation; that, besides, as that deed contained an express reservation of their rights, and formed the ground of the decree of declarator—of the retour—and of the charter 1742, in which it was specially referred to, these deeds must be held to have been qualified by that reservation; and that although John Hamilton, a posterior heir, was allowed to possess the estate, yet it necessarily reverted on his death to the prior class, in the same way as in the case of the existence of a nearer heir, after a remoter heir has made up titles.
Second, Because John Hamilton's retour, describing him as second son of Joanna Hamilton, and as such nearest heir of entail, while his elder brother was alive, was thereby ex facie null, and so incapable of being prescribed; that, besides, the vicennial prescription of retours was merely personal to the party served, and therefore could not avail Mrs. Fullarton; and that, supposing the destination of the charter 1742 called her preferably, still it was not fortified by prescription prior to the deed 1780, as thirty-eight years only had intervened, while, in consequence of intervening minorities, Sir Hew's right to reduce it, and the deeds on which it proceeded, had not been cut off by the negative prescription; and,—
Third, Because the ‘other heirs whatsoever’ of the body of Joanna Hamilton, mentioned in the charter 1742, meant all the heirs of her body, other than John Hamilton, and that of these Sir Hew was the eldest, and so entitled to succeed.
Lord Reston, “in respect that the present process contains different conclusions, and is founded on different grounds from the former action, repelled the defence of res judicata; but on the merits, in respect of the terms of the charter and infeftment in 1742, with reference to the deed of repudiation therein contained, and the reservation in the said deed of repudiation, found that the defender is the heir entitled to possession of the lands in question under the said charter and infeftment and subsequent
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Separate appeals were then entered to the House of Lords by Sir Hew as to his defence of res judicata, and by Mrs. Fullarton on the merits.
After hearing parties, the House of Lords found, “That the judgment of this House, on the 3d of June 1801, in the matter of the petition of appeal then before the House, in which the present appellant, then the wife of Colonel William Fullarton, and the said William Fullarton, were appellants, and Sir Hew Dalrymple Hamilton, Bart. was respondent, whereby it was declared and found, that the matters in the then appellants” summonses were not sufficient to sustain the conclusions in those summonses, or any of them, and therefore this House assoilzied the defenders, appears to have proceeded only on the insufficiency of the matters in those summonses to sustain the conclusions therein; and find, that such judgment therefore did not affect the rights of the appellant in any future action, founded on other grounds of action; and the Lords further find, that the action of the appellant, which is the subject of the petition of appeal now before the House, is founded on the decreet of declarator of the 25th of February 1741, the retour of service, in pursuance of such decreet, finding John Hamilton, second son of Robert Dalrymple, procreate of the body of Joanna Hamilton, the lawful and nearest heir of tailzie and provision to James Lord Bargany, deceased, according to the matrimonial contract of 19th June 1688, and under the charters of resignation obtained by the said John Hamilton, by virtue of the procuratory of resignation contained
_________________ Footnote _________________ * Not reported.
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My Lords, the matter to be decided under the original appeal is the right of succession to the entailed estate of Bargany in Scotland—Mrs. Fullarton claiming that estate in the manner in which I shall have occasion to state to your Lordships presently,—Sir Hew Dalrymple Hamilton insisting that he is entitled; and the case before your Lordships is a case of very great importance, both with respect to the value of the property, and the doctrine which must be applied for the decision of the question between the parties.
My Lords, there was a contract of marriage and entail of the 19th of June 1688, and the parties to that contract were John Master of Bargany, and his father, John Lord Bargany, of the one part, and Mrs. Jean Sinclair of the other part.—[His Lordship then read the terms of the deed, see p. 265. ]
The contract of marriage contains a procuratory authorizing resignation of the lands into the hands of the superiors, for new infeftment in favour of John Master of Bargany, and the heirs of tailzie substituted to him; and it also contains all the provisos, conditions, restrictions, and clauses irritant and resolutive, necessary for constituting in Scotland a strict and effectual entail. Those clauses it will be hardly necessary I should detail to your Lordships.
John Master of Bargany died before his father, leaving an only daughter, Joanna, who, in the year 1707, intermarried with Robert Dalrymple of Castleton, and from that marriage both these parties are stated to be
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Sir Robert Dalrymple, the institute in this entail, is stated to have survived his wife Joanna Hamilton, and died in 1734; but he predeceased his father, the Lord President. In respect of the descendants of this marriage, it is stated that there were issue three sons and two daughters; first, the late Sir Hew Dalrymple of North Berwick, and who died in December 1790, leaving an only son, the father of Sir Hew, party in the present appeals; secondly, John Dalrymple, who came to possess the estate of Bargany in the way I shall mention to your Lordships presently,
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After the death of his eldest son, the Lord President, in virtue of the reserved powers in the last-mentioned marriage-contract, executed a deed in 1734, permitting his grandson, Hew Dalrymple, to serve himself heir of tailzie to his father in the lands of North Berwick, without inserting in his service the clauses in the said contract concerning the succession to the estate of Bargany. At this time the grandson was presumptive heir to the estate of Bargany; and in two years afterwards the succession opened to him, as already mentioned, by the death of James last Lord Bargany without issue.
My Lords, in the year 1736, the Lord President, in further exercise of his reserved powers, executed two deeds, which are stated in the proceedings. The first is dated the 8th of April 1736, the second the 9th of April 1736. The first recites the parts of the two entails of North Berwick and Bargany which it was necessary to recite.—[His Lordship then read the clause permitting Sir Hew to serve himself heir to the estate of Bargany, see p. 269.]—I beg your Lordships' attention to the following words; and although it may seem in some respect loss of time to read these instruments of the Lord President, it appears to me it really is not so, and that a good deal of argument may be derived from the manner in which the Lord President thought the estates were to be dealt with, in case they were held together: He says, “That in order that the said Hew Dalrymple be enabled so far to accept of the succession to the estate of Bargany, as to be served and retoured heir of tailzie to that estate, and thereby be in a condition to denude himself thereof in favour of the next person after him called to the succession by the tailzie of the said estate of Bargany, which is the most regular and effectual manner of conveying the said estate in favour of the next person in the line of succession by the tailzie of the said estate of Bargany.”—Your Lordships see, that that which is laid down is, that Hew should be served and retoured heir of tailzie to that estate, and then denude himself, not by a deed of repudiation, but quite in a different way.— “I am therefore resolved so far to exercise the powers and faculties reserved to me to alter, innovate, qualify, revoke, or discharge the clauses and provisions contained in the contract of marriage last mentioned, as to enable the said Hew Dalrymple to accept of the succession to the estate of
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Upon the 9th of April 1736, that is, the day after he had executed this deed, he says, noticing the entail to which 1 have referred your Lordships—[His Lordship then read the clause quoted ante, p. 270.]—I observe, as I pass on, that here the other heirs, the “aliis hæredibus quibuscunque” in this deed,—at least the deed which speaks of Hew denuding himself of the estate,—must be heirs, not in the strict sense of the word, but those other heirs who were to succeed according to the limitations of the tailzie, the conditions of which are no further material than what I have now stated. The object of those deeds was to enable Hew Dalrymple, the eldest grandson of the Lord President, to make up titles to the estate of Bargany, and to retain possession of it during his grandfather's lifetime; but, at the same time, to impose upon the same eldest grandson an obligation to relinquish it in favour of the next heir of tailzie upon his grandfather's death.
My Lords, it appears that the grandson, in consequence of the permission granted by his grandfather, entered to the possession of the estate of Bargany as heir of tailzie to James last Lord Bargany. On the 9th of April 1736 he assigned the rents for certain purposes to James Craig, and, on the 13th of the same April, he granted a factory to John Kennedy, who was removed, and another factor appointed about three years thereafter. At the period now alluded to the litigation was going on, which has been already mentioned, concerning the right of succession to the estate of Bargany. That was at last terminated in the manner stated in these papers by the judgment of this House. It does not appear to be necessary to state to your Lordships the proceedings;—it is enough to say, that it ended in favour of Sir Hew Dalrymple.
My Lords, the estate of North Berwick was probably the most valuable of the two, and Sir Hew resolved to take that estate, and to reject the estate of Bargany; and the next question was, In what way John Dalrymple, who now assumed the name of John Hamilton of Bargany, should make up titles to that estate so as effectually to vest himself, and to divest his elder brother ? They did not follow the mode prescribed by the Lord President in the deed I have stated, but, on the 13th of August 1740, a deed (which is known in these proceedings by the title of the Deed of Repudiation) was executed; and whatever the disposition in the other instruments may be, it is not at all material to be considered in this case. With respect to this deed, known by the name of the Deed of Repudiation, one material question arises upon what is the effect of it. It recites the entail of the estate of North Berwick, and the clauses contained in it relative to the estate of Bargany. It next mentions the competition which had occurred upon the death of James Lord Bargany; it refers to the judgment which I have last mentioned, and then it goes on in this way—[His Lordship then read the clause quoted at p. 271.]
The recital, your Lordships observe, speaks of what would be the consequence if he had now taken the succession; it speaks also of his
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“And I consent that the said John Dalrymple shall, in respect of my repudiation as aforesaid, serve himself heir of tailzie and provision to the said James Lord Bargany, and otherwise make up titles in his person to the said estate of Bargany in such manner as is competent of the law, and as he shall be advised; and that the said John Dalrymple do instantly take possession of the said estate of Bargany, and uplift the rents thereof in the tenants' hands fallen due since the death of the said James Lord Bargany, and in time coming; providing always”
—He has spoken of nobody to take, your Lordships observe, except John;—he has not spoken of the heirs of the body of John in any thing I have yet read;—he has not spoken of Robert in any thing I have yet read;—nor has he spoken of the heirs of Robert in any thing I have yet read; but he adds,— “providing always, that these presents shall nowise prejudge my own or my descendants' our right to take the succession of the said estate of Bargany upon failure of the said John Dalrymple, and Dr. Robert Dalrymple, my third brother, and their descendants.” There he includes the descendants of John, whom he had not before mentioned, and Robert, and the descendants of Robert, whom he had not before mentioned. Here are two events in which he provides that his right and the right of his descendants shall not be prejudged, namely, on the decease of John and failure of the heirs of his body, and Robert and failure of the heirs of his body; but there is a third case in which he also reserves to himself this right:
“Or in case any event shall exist in which I or my descendants can take the said succession, consistent with the foresaid tailzie of the estate of North Berwick, with which express provision thir presents are granted by me, and accepted by the said John Dalrymple.”
Whatever the effect of this deed taken strictly may be, the meaning of it (whether it can be established is another question) is, that he should have the estate again if John died without issue, but not then if Robert was living or his issue, unless some event had happened in virtue of which he was entitled to hold both estates together; as, for instance, if the fetters on the North Berwick estate were worn off, or by any act he had done, and prescription following on that act, those fetters had been in any way destroyed, that then he might have said that that would be the effect of carrying this with the consequences he meditated; that he might have said to John if alive, You will be so good as to quit the estate; or to the heirs of his body, You will be so good as to quit the estate; and that he meant to reserve to himself the power of using that language to John and his issue, and to Robert and his issue. My Lords, for the sake of repeating what I myself stated in 1801, it wanted more of principle or authority than I have yet seen for saying that this is not such an alteration and innovation of the tailzie of the estate, as to make it at least extremely questionable whether it is right.
My Lords, this deed does not take any notice of the deeds executed
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My Lords, this deed of repudiation having been obtained, the next proceeding which it is material to attend to is a process in the Court of Session, and a decreet of declarator obtained upon it in 1741 by John Hamilton against his elder brother, who is made a party to it, and some of the other substitutes in the entail of Bargany of 1688. My Lords, I shall not detail to your Lordships the very terms of that process of declarator, but they must be very carefully attended to. My Lords, no appearance was made for any of the defenders, and the decree, which was made in absence, was upon a prayer “that it ought and should be found and declared, by decreet of the Lords of Council and Session, that the said John Hamilton, pursuer, hath the only right and title to the succession to the said estate of Bargany, and that he ought to be served heir of tailzie and provision to the said James Lord Bargany;” and the decree bears, that the Court found the points and articles of the summons relevant and proven by the writs produced, and found, and decerned, and declared, conform to the conclusions of the libel. My Lords, after that he expeded in 1741 a general service as nearest heir of tailzie and provision to James Lord Bargany. The retour of that service is stated at length in the papers before your Lordships, which retour must be also carefully borne in mind.
My Lords, this entail of Bargany stood, as I understand, upon a personal title, until John Hamilton caused the procuratory of resignation to be executed, and the lands were resigned into the hands of the superior in favour of John Hamilton, and he obtained a charter under the Great Seal of the Prince of Scotland of that part of the estate of Bargany which is freehold. This charter bears date the 26th of July 1742; the dispositive clause of the charter is thus expressed:—
“Dilecto nostro Joanni Hamilton de Barganie, jurisconsulto, filio secundo demortui Domini Roberti Dalrymple de Castleton, procreat. inter illum et demortuam Dominant Joannam Hamilton, unicam filiam demortui Joannis Magistri de Barganie, et sic;”—
that is, it styles him expressly to be second son, “et sic,” and so the heir-female of the deceased John Lord Bargany,— “et hæeredibus quibuscunque ex corpore dict. Joannis Hamilton; quibus deficientibus,”(and those are the most important words, as it appears to me, that can be stated in the whole of the controversy), “quibus deficien., aliis hæredibus quibuscunque ex corpore dict. Dominæ Hamilton, procreat. inter illam et dict. Dominum Robertum Dalrymple, absque divisione.” Then he goes on to speak of the other heirs of tailzie; and concludes, “Quibus deficientibus, hæredibus masculis ex corpore nunc demortui Domini Joannis Houston,” who was the person to whom the limitation was made in the entail at the period of 1688,—that part of the entail at which I stopped in my recital to your Lordships.
My Lords, you will see in the printed papers what is called the Quæquidem of the charter, and which calls for careful attention. This charter contained all the prohibitory, irritant and resolutive clauses and conditions
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My Lords, this charter of 1742 having been executed, in which these words occur which I have stated to be words of so much importance, “Quibus deficientibus, aliis hæredibus quibuscunque ex corpore dict. Dominæ Joannæ Hamilton, procreat. inter illam et dict. Dominum Robertum Dalrymple, absque divisione,”—it is insisted before your Lordships, on the one side, that is, on the part of Sir Hew, that the “aliis hæredibus quibuscunque,” who were to succeed on the failure of heirs of the body of John, mean Sir Hew. On the contrary, it is insisted, that as John, who was not himself an heir in the strict sense of the word, who is stated in this instrument to be the second son, and therefore it acknowledges the existence of a first son,—as John, therefore, was an heir of a particular species, and as John's sons might be heirs likewise of a particular species, so the ‘aliis hæredibus quibuscunque’ were such aliis hæredibus as John and his son were; and that Mrs. Fullarton, therefore, is the person to succeed upon the effect of those words, ‘Quibus deficientibus,’ &c.; that they were not meant to restore Hew and his descendants into that situation in the tailzie in which they stood under the settlement of 1688; but that—whether Hew himself, or any of his descendants, could or could not have reduced the charters, retours, &c.—whether this charter of 1742 was liable to challenge, or not liable to challenge—these words, “Quibus deficientibus, aliis hæredibus quibuscunque ex corpore dict. Dominæ Joannæ Hamilton, procreat. inter illam et dict. Dominum Robertum Dalrymple, absque divisione,” were meant to create, as far as this charter could effectually create it, a destination to those who, subsequent to John, were to take under the entail of 1688, and not for the purpose of introducing anybody, who, under the entail of 1688, would not have taken after John. I repeat, the question proposed is, Whether it was the meaning of those words, as contained in this charter, to create a destination that would give to Mrs. Fullarton as the substitute, instead of reintroducing Hew or his descendants?
My Lords, John Dalrymple appears not to have liked to have trusted to that construction of the words, which supposes that these words would revest the estate in Sir Hew and his descendants; for having had possession from 1742, and having a service aided by twenty years prescription, in the year 1780 he executes a deed under which Sir Hew has made title; in which he says, “Be it known to all men by these presents, me, John Hamilton of Bargany, Esquire, for certain causes and considerations me moving, and in order to give effect to the entail executed by John Lord Bargany in his son's contract of marriage, of date the 18th November 1691, and to the conditions upon which my own right and title to the lands under mentioned was founded, to have given, granted, and disponed, likeas I hereby give, grant, and dispone to and
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“whom failing, to Sir Hew Dalrymple, Bart. my brother, and the heirs of his body, without division; whom failing, to the next heirs of the body of John Lord Bargany aforesaid, and the other heirs of tailzie contained in the foresaid deed of entail, in the order therein expressed.”
Now, my Lords, without entering at this moment into a discussion, whether the words “Quibus deficientibus, aliis hæredibus quibuscunque,” do or do not mean the persons who, under the deed of 1688, were to take next to John, if Robert died, as he did die in the mean time without heirs of his body; but, taking it for granted without discussion for the moment, that the meaning of that deed of 1742 was to limit to such heirs of entail as would have taken after John under the deed of 1688, according to the succession therein limited, the consequence of that would be, that the deed of 1780 would be in contradiction or contravention,—a word which I use now studiously, for the purpose of explaining what the former judgment of this House was when it spoke of contravention—this deed of 1780 would be a deed in contravention of the deed of 1742, for the deed of 1742 contained all the clauses prohibitory, irritant, and resolutive, to protect the deed of 1688; and if the words, “Quibus deficientibus, aliis hæredibus quibuscunque,” did not mean Sir Hew, but did mean Mrs. Fullarton, the consequence would be, that a deed, which attempted to introduce Sir Hew and his issue before Mrs. Fullarton, would be a contravention of that deed of 1742.
My Lords, this deed, it is stated, was not recorded in the Register of Entails. After this, in the year 1793, Mrs. Fullarton brought an action, and the proceedings in that action are stated at length in the papers, together with her summons. There was a second summons in the same year, which it is not important to mention; and after a great deal of proceeding in the Court of Session, the Lord Ordinary in that action pronounced, in 1794, this interlocutor—[His Lordship then read it, see p. 275.]—Your Lordships will permit me to call your attention to this reservation, “Reserving to the pursuers to insist in the declaratory conclusions of their libel, and particularly how far the tailzie 1688 is affected by the investiture 1742, and whether or not the defender has incurred any irritancy under that entail.” What this interlocutor states, therefore, is this: With respect to all the grounds of complaint founded on any thing which was done before 1742, that the deed of 1742, with the possession under it, gave the defenders an exclusive title; that whether Mrs. Fullarton had in that action, or had not in that action, a title to sue, it was quite unnecessary to agitate, because that deed of 1742, and possess on under it, unless it could be made out to be a contravention in the
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My Lords, this interlocutor was brought under the review of the Court, and the Court afterwards proceeded to find, “that, in computing the period of prescription, the years of the pursuer's minority are to be deducted.”
This came before the House of Lords in the year 1797, when your Lordships will recollect that though Lord Loughborough was then Chancellor, yet my Lord Thurlow was in the constant habit of attending the House on appeals; and it seems to have struck those two noble Lords,—and perhaps one ought to say struck them acting rather under the influence of ideas which prevailed in the English Courts of Justice, than under the influence of the practice of the Court of Session,—that it was a very strange course of proceeding to call on a defender in an action to prove that he had a title to exclude, which might be a discussion which would last for ten years; and if it was found at last he had not a title to exclude, they might then have to begin to see whether what we call the plaintiff, and which they would call the pursuer, had a right to bring the action at all; and therefore they thought it right to send it back to the Court of Session, “to review the interlocutors that were appealed from, and to consider how far the validity of the title to exclude, set up by the defender, is in this case involved with the title set up by the pursuer to sustain the action of reduction and declarator, as having become”—that is, the character in which she brought the action— “the nearest substitute under the deed of entail in the manner alleged on her behalf; and if the Court shall hold these questions to be involved with each other, that they do pronounce an interlocutor for or against that title,” —that is, the title to pursue,— “and also on the effect which such judgment may have upon the interlocutors directed to be reviewed.” My Lord Thurlow, as this Case represents, said, and it seems likely enough did say, that he was not at all prepared to pronounce that the then respondent was first substitute, without pronouncing that the matter of her libel made her so, and that the consideration of that point had been altogether waived.
My Lords, it went back to the Court of Session, and the Court of Session were to apply the judgment, as it is expressed, and on the 9th of March 1799 they pronounced this interlocutor, which was observed upon afterwards in this House, in the manner I shall mention:
“The Lord Ordinary having heard parties upon the conclusions of this action, finds, that the defenders have in this and the previous action, to which the present has reference, produced and referred to preferable and exclusive titles to the lands claimed by the pursuer; and therefore assoilzies the defenders from the conclusions of this action, and decerns, superseding extract till the 3d sederunt day in May next.”
My Lords, when it came back to this House, whether the Lords who
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Now, my Lords, when this came to be discussed before the learned Judges in the Court of Session, it does appear to me, I confess, that in a case of this great importance, of this great value, the thing has been almost entirely misunderstood, as to the meaning of this House. I do not mean to say what is the effect of it; but there is such a persuasion as to this in the mind of every learned Judge, not founded in fact, as may have influenced the judgment they have given. I mean to say that most respectfully. If that be so, we ought not to permit that to remain in their minds, and the effect of it to be felt by the parties. To show that this is the case, I will read to your Lordships, very shortly, the judgments those learned Judges have given.
My Lord Craigie says he is of opinion—and I need not trouble your Lordships with stating that, for all the learned Judges state that they are of opinion—there is no proper res judicata to exclude the action; and no person can read this paper, I think, without being of that opinion—he says, “Although there may be a good deal in the determination of the House of Lords upon a great many of the matters now agitated, and although I have a good deal of unwillingness to consider the matter still open, and although the case was so argued in the former proceeding, that the last finding in the House of Lords may go far to anticipate the result of the present plea, at the same time I say, if the case be still
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My Lord Glenlee, after first stating his opinion that the interlocutor of the Lord Ordinary repelling the plea of res judicata is right, says, “On the other hand, it is equally plain to me, that the defender in this process is entitled to found upon any judgment given by the House of Lords, to the effect of showing that the plea now maintained by the pursuer cannot be substantiated, and that there is no foundation for her claim, without taking for granted that the former judgment was wrong.” With humble deference to a Judge of great experience, and entitled to very great respect, it appears to me—at this moment I will not say whether the judgment was right or wrong—but it appears to me, with great deference to him, that the judgment in favour of Mrs. Fullarton, or against Mrs. Fullarton, might be right or wrong, without the least reference whatever to the former judgment in this House, which decides nothing upon the question raised by this summons. His Lordship then observes, “Though there be no res judicata to bar the pursuer from being heard, yet if the pursuer's case, for its foundation, assumes that Sir Hew
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This learned Judge then undoubtedly goes on to insist upon the circumstance of Sir Hew having forfeited for himself and his descendants, and then he takes notice certainly of the important point in this cause. He says, he decides that the nearest heirs of Joanna Hamilton are the persons who are to take, although Sir Hew Hamilton himself declined taking the estate. Then he says, as to the reduction of the deed of 1780, he need not say any thing about it; because, unless the pursuer is entitled to take the estate under the deed of 1742, she cannot set aside the other deed, which is entirely consistent with that charter, according to the interpretation put upon it. Then he proceeds to observe upon the act of 1621.
My Lord Bannatyne speaks of the res judicata in the way the learned Judges before him had done. Then he says, “But when we come to the merits of the question, I agree with Lord Glenlee, that under the deed of 1742 this pursuer is not nearest heir, except on the supposition that Sir Hew and the heirs of his body were forfeited of their right under the entail by incurring an irritancy.” Now, my Lords, I beg leave very humbly again to observe upon this part, that the principle which is insisted upon in this action is, not that she has any title under forfeiture, but that previous to the year 1780, or previous to his death, John Hamilton had acquired under the deed of 1742 a title that could not be affected by the deed of 1780. By the effect of that deed of 1742, and by the effect of prescription in aid of that deed, there was a new title created by that deed of 1742, which barred Sir Hew, not on the ground of contravention or any act of forfeiture, but on the ground of a new title, and enjoyment under that new title, so as to give a right by the effect of that charter, and by the aid of prescription. My Lord Bannatyne
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My Lord Robertson states that he also concurs with Lord Glenlee on the point of res judicata, but states that they are not to lose sight of the judgment of the House of Lords; and then, after proceeding on the question of forfeiture as deeply affecting the present case, he gives an opinion, entitled certainly to very great respect, that the words “heirs whatsoever” will entitle Sir Hew, and not this lady. Now, is it not remarkable that they are all giving construction to this deed with reference to the fact of a forfeiture on the part of Sir Hew, not determining at all that Sir Hew was to have any title under the deed of 1780, because they say that the deed 1742 is sufficient to entitle him?
My Lord Justice-Clerk, of whom I shall always speak with that great respect which I know personally to be due to him, seems to be of opinion that this judgment of the House of Lords that there was no forfeiture, had a considerable effect on the disposal of the present action, though he certainly does give an opinion that the words ‘hæredibus quibuscunque’ ought to be construed in the way that some of the other Judges had thought those words ought to be construed; and then he says, “It is un necessary to consider the deed of 1780;”— and to be sure so it is, because if he was called to the succession by the deed of 1742, not on the ground of any forfeiture by Sir Hew or any of his descendants, or by John in that transaction of 1742, but on the ground that John had acquired a title under that charter, and under all the circumstances this charter had been taken,—he says, “it is unnecessary to consider the effect of the deed of 1780,” (as it would be); “for the deed of 1780, calling Hew nominatim, would not make him worse than he was, if entitled under the general expression of the deed of 1742.”
My Lords, I believe I may venture to say, that I have most carefully examined the summons I have now in my hand in the first action of Mrs. Fullarton, and the summons in the present action; and it appears to me at this day, that the case stands in a very different situation from that in which it stood in the year 1801. The question which is made by the present summons is upon the title made by the transactions in 1742, not considered as a forfeiture upon the authority of this House, nor to be considered as a forfeiture; but whether the deed of 1742, if rightly construed, gives her a right to the succession upon the death of John without heirs of his body, Robert being at that time gone out of the world without heirs of his body,—and whether the deed of 1780, if it was to be any bar to her title, ought to be removed out of the way, not upon the grounds of contravention, such as was stated in the summons on which the judgment of this House proceeded in 1801, but as a deed not to be tolerated, regard being had to the title to be made by her under the deed of 1742.
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Now, my Lords, in a case of this great value, and of this great importance, (for I understand it to be of great value and of great importance,) I should be extremely sorry to have the presumption to say, that I very confidently think that that instrument of 1742 has been construed, not according to its true legal effect and meaning; but I have no difficulty in saying, that if I were bound, under the sanction under which I act as a Judge, to give my opinion at this moment, and without further information, whether Mrs. Fullarton was not the person called under that deed of 1742, next to John, provided Robert was out of the way, and the heirs of his body out of the way, I should say, that I did think she was the person intended to be next called. I am to look here to what was intended to be done. If the law must give effect to the intention, that is another matter. Take into consideration all the acts of John:—he is served heir,—and he is served heir in a service that takes notice that he is the second son, and yet heir, “et sic” heir. The word “heir,” therefore, with respect to him, is a word that could not be used with propriety, unless it had a special sense. How could he be stated in those pleadings to be heir, if the elder brother, or descendants from him, were alive, and noticed to be alive, unless the word heir has a flexible sense ? He is stated not only to be the heir, but he is stated to be the second son in that instrument, and so (et sic) heir.
Your Lordships will recollect that this deed of 1742 was a deed which proceeded on a desire expressed by Sir Hew himself. I will not say that it would therefore bind the descendants of Sir Hew from quarrelling with the deeds and instruments, or any thing else that they have a right, according to the law of Scotland, to reduce, as to which no steps whatever have been taken; but, if your Lordships recollect, the very instrument of repudiation states that he is to be at liberty to take the property again upon the decease of John and of Robert—of both—without issue. Now I desire to know who would have taken under that deed of 1742, if John had died in the year 1742, Robert then still living. Could Sir Hew have said then, upon the ground of actual intention, “I intend, by suffering my brother to be served heir, and under the charter, to make use of the procuratory of resignation, but to come in nevertheless against my brother, and the heirs of his body ?”—Surely that would not have carried into effect his own purposes, seeing that he was not to take next to John, and the heirs of his body, if Robert and the heirs of his body were to take next; and he must have again repudiated for himself, not only the entail of 1688, but the charter of 1742.
If John had died in 1743 without issue living, would not Robert, at least according to intention, have been the person to take under the “aliis hæ redibus quibuscunque,” as John was the second son, et sic (and so) heir, would not Robeit, in such circumstances, according to intention at least, have been the third son, and so heir?.
My Lords, if your Lordships look at the whole of these proceedings,—the decreet, the service, and the charter of resignation, the whole tenor and series of those acts, and all the other acts,—I think you will put a
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Then we are told there is the proviso which has been referred to. There is reference in all the transactions to the deed of repudiation; but, even in John's deeds, none of the public acts in which he was engaged takes any notice of that proviso. No record takes notice of that proviso—none;—and that being so, it seems to roe there is a very considerable question, whether that proviso ought to have any weight—and I incline to think it ought to have no weight—in the decision of this question.
My Lords, it may be owing to my ignorance of the law of Scotland, (which no man can be more sensible of than I have been very long, and I am afraid I shall have reason to be till the last moment I attend to any business of this sort,) that I should have liked to have seen it stated in what way Hew was to make out his title under the deed of 1688. To whom was he to serve heir? Was he to serve heir to John and his issue, or Robert and his issue, if he had any? If he was to serve heir under the deed of 1742, and to make out that he was the person meant by the aliis hæ redibus quibuscunque in the deed of 1742, then I can understand how he was to make himself out heir to John; but how is he to make himself out heir to John under the limitations of the deed 1688? I do not find that question touched.
My Lords, when this decision was made in the year 1801, it was a decision which your Lordships made upon the judgment given by the whole Court of Session; for the Court was not at that period in two Divisions. It is naturally enough to be expected, that between the year 1801 and the year 1821, there may have been such a change in the persons sitting on the Bench, that, without any blame anywhere, the effect of a judgment in this House may, under those circumstances, be misunderstood; and I state that with all humility, but at the same time with a good deal of
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Then, my Lords, under the deed of 1688, who were the heirs to succeed to John Hamilton according to the course of succession regulated by that deed ? The next person was Robert, and the heirs of his body. The next person was the present appellant, and the heirs of her body. To admit Sir Hew Dalrymple and the heirs of his body into the succession was to violate the order of succession created by the settlement of 1688, if that course of succession had not been violated by the introduction of John Hamilton. Therefore, to give consistency to the title under the decreet and service,—to give consistency to the title under the re tour,—and to give consistency to the title under the charter of 1742, the construction of that charter must be, according to the view I entertain, (subject to any construction which that might have by a further argument upon it, and by a more intimate knowledge of the Scotch law than I can pretend to have;) but, according to the view I have at present upon that subject, it is impossible to say that the just construction of the charter of 1742 can substitute, after John Hamilton and the heirs of his body, any other persons than those who were entitled to succeed to John Hamilton and the heirs of his body by the settlement of 1688. The charter professes to be according to that settlement; it professes to act under the authority of that settlement, and therefore, I should think, cannot be construed to be intended to violate the order of succession intended to be established by that settlement.—Under this impression, therefore, I can give, as at present advised, no other construction to the words “aliis hæ redibus quibuscunque,” than those heirs who were of the same nature and description as John Hamilton himself—that is, the persons called to succeed, to the exclusion of Sir Hew Dalrymple and the heirs of his body.
My Lords, when I come to consider the manner in which I apprehend the title is to be made up on the death of John Dalrymple, who was undoubtedly seised to him, and the heirs of his body under that charter, and was therefore the last person who had the actual sasine of the estate, according to the settlement of 1688, 1 apprehend that, according to the law of Scotland, the person to be retoured heir under the settlement of 1688 must be the person who, according to the terms of that settlement in the order of succession created by it, could be served as heir of John Hamilton. That, I apprehend, can only be the present appellant. Sir Hew Dalrymple cannot serve himself heir of provision to John Hamilton under the settlement of 1688. If he is to come in in any manner as heir of John Hamilton, it must not be under the settlement of 1688, but under a different title. I do not enter into the discussion now, whether, under the instrument of 1780, he could or could not claim according to the
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My Lords, this being the state of the case, the action which is now pending, and which has come by appeal before your Lordships, appears to me to be of a totally different description, founded on a different ground, and a ground even contradictory to the ground on which the original proceeding was framed; for now it is to the advantage of Mrs. Fullarton to claim under the charter of 1742, and to insist that she, according to the true construction of that charter, is the person entitled to succeed to John Hamilton in this property. John Hamilton remained in possession of the property under the charter until the time of his death. No actual sasine of the property was in any other person but John \Hamilton, under the charter of 1742, at the time of his death; and the question then is, What was the title which, on the death of John Hamilton, accrued either to Mrs. Fullarton or to Sir Hew Dalrymple ? Mrs. Fullarton claims upon the construction of the charter of 1742; that, I must confess, does appear to mo to be the true construction of that charter. Sir Hew Dalrymple insists upon the title under the deed of 1780; that title does not appear to me to have been investigated in the Court below, because they proceeded upon a ground which did not make it necessary for them to investigate that title at all. The repudiation by Sir Hew Dalrymple undoubtedly was qualified by the terms of it; but that qualification, I apprehend, as far as I am informed upon the subject, can have no effect whatsoever, because it does not in any manner appear upon the subsequent proceeding—it forms no part of the title appearing upon the record—it is not expressed either in the retour of service, or in the charter of 1742;—they have both proceeded upon a simple repudiation unqualified.
My Lords, if the question were put to me, informed as I now am, whether Sir Hew Dalrymple could qualify his repudiation, I should
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Appellant's Authorities.—(1.)—Karnes's Elucid. art. 28; Kinlochs, Dec. 27. 1792, (12233); 4. Stair, 20. 12; 4. Stair, 40. 16; Ibid. 3. 3; Graham, May 20. 1814; Dow's Reports, p. 314.—(2.)—3. Ersk. 8. 47; Earl of Dalhousie, Jan. 13. 1712, (14014); M'Lauchlan, Jan. 12. 1757, (2312); 2. Stair, 5. 25; 2. Stair, 3. 51;
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Solicitors: Spottiswoode and Robertson,— J. Chalmer,—Solicitors.
( Ap. Ca. No. 40.)
