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Cite as: [1835] CA 13_246

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SCOTTISH_Shaw_Court_of_Session

Page: 246↓

Mackay

v.

Campbell's Trustees
No. 86.

Court of Session

2nd Division R

Jan. 13 1835

Lds. Moncreiff & Cuckburn, Lord Glenlee, Lord Medwyn, Lord Justice-Clekk

Miss Flora Mackay,     Pursuer.— Rutherfurd— W. Bell. Mrs M'Kinnon Campbell's Trustees,     Defenders.— Skene— Whigham.

Subject_Succession—Clause of Return—Marriage Contract—Passive Title.—

1. A clause of return in a conveyance by a father in the contract of marriage of one of his daughters gratuitously defeasible by an heir of the marriage. 2. A general service, without taking any thing thereby, does not import a passive representation.

In 1751, Archibald Campbell, proprietor of the estates of Ormaig and Blairintibbert, in Argyleshire, became a party to the contract of marriage between his eldest daughter Katharine, and John Campbell, brother to Campbell of Lossit, whereby reserving his own liferent as to both properties, and his wife's, should she survive him, as to one of them, he sold, alienated, and disponed these lands, “with and under the reservations, burdens, provisions, and conditions aftermentioned, to and in favours of the said Katharine Campbell and the said John Campbell, her future husband, and the longest liver of them, in conjunct fee and liferent, but for his liferent use allenarly, and, after their decease, to the heirs-male to be lawfully procreat of their bodies of the said intended marriage; which failzieing, to the lawful issue, in the order aforesaid, to be procreat of her body, excluding all other heirs-portioners, and succeeding without division, when it shall happen heirs-female to succeed; which failzieing, to return to the said Archibald Campbell, his heirs and assignees whatsoever.” On this contract infeftment was duly taken in favour of Katharine Campbell and her husband.

Archibald Campbell had no sons, but a large family of daughters, said to have been fourteen in number, of whom it was admitted that three survived him. These were all married, Katharine, as above-mentioned, to John Campbell, Isobel to the Rev. Mr L'Amy, minister of Kilmartin, and Jane to Hugh Mackay, tacksman of Laggan. Katharine had two children, James and Elizabeth (the late Mrs M'Kinnon Campbell), who both survived her. Isobel died without issue, and June left the late Major Alexander Mackay, and the pursuer, Miss Flora Mackay. On the death of Katharine, her son, James, made up titles as heir of provision to her under her contract of marriage, and was infeft in the lands of Ormaig and Blairintibbert in 1790. He thereafter died without issue, and was succeeded by his sister, Mrs M'Kinnon Campbell, who obtained herself served heir of provision to him under the destination in the contract, and proceeded to make up titles to the properties separately, Ormaig being held of a subject superior, and Blairintibbert of the crown. As to Ormaig, she obtained a precept of clare constat from the superior, on which she was duly infeft in March, 1806. As to Blairintibbert, again she took out a precept from Chancery, of date February 19, 1806, containing the usual clause of limitation of the validity of the warrant to the next term. No infeftment, however, followed thereon till May, 1808, and in the instrument of sasine upon the infeftment then taken, the year both of the era and of the King's reign was written on an erasure. Mrs M'Kinnon Campbell died in 1822 without issue, having been predeceased by two sons, her only children. A few days before her death, she executed a mortis causa trust-deed of settlement in favour of the late Hugh James Rollo, W.S., as trustee for certain legatees and others, all strangers to her succession; and Rollo afterwards, in virtue of powers in the trust-deed, assumed as trustees the present defenders. On Mrs M'Kinnon Campbell's death, the late Major Alexander Mackay, son of Jane Campbell, expede a general service as Mrs M'Kinnon Campbell's heir-at-law, and thereupon. raised a reduction of her trust-deed, on the grounds that it was executed on deathbed, and that she was not at the time of a disposing mind. Pending this action, Major Mackay died, and his sister, the pursuer, Miss Flora Mackay, sisted herself as pursuer in his place, but ultimately judgment was pronounced in this Court, and affirmed in the House of Lords, repelling the reasons of reduction. 1 Miss Mackay further made up a tentative title, by granting a trust bill, whereupon she was charged to enter heir to Mrs M'Kinnon Campbell in the lands of Ormaig and Blairintibbert, by the grantee in the bill, who thereupon led an adjudication, which he assigned to her. She then, on this title, and as the alleged nearest lawful heir of her grandfather, Archibald Campbell, instituted the present action, which concluded for reduction of the instrument of sasine in favour of Mrs M'Kinnon Campbell in the lands of Blairintibbert, of her trust-deed of settlement, and of the titles made up by her trustees thereunder, on the grounds, 1. That she could not gratuitously defeat the clause of return in the contract of 1751; and, 2. That as to the lands of Blairintibbert, the infeftment was null, both as taken beyond the time within which alone the warrant was effectual, and in respect of the defects in the instrument; and, consequently, that not having been vest in that property, she could not dispone it.

In defence it was pleaded, 1. That the clause of return was no bar to the alienation of the properties, even gratuitously, by the heirs in the destination; and, 2. That the pursuer, as representing her brother, who had served heir to Mrs M'Kinnon Campbell, and so represented her, could not challenge her acts and deeds.

The Lord Ordinary (Lord Moncreiff) ordered Cases, issuing at the same time the subjoined note. *

_________________ Footnote _________________

1 Jan. 17, 1828 (ante, VI.367); March 25, 1831 (5 W. & S. 210).

* “The Lord Ordinary heard this cause at great length, and it invoices questions of law of great importance in his opinion. But the debate, though far advanced in last Session, was only concluded since the Court met in May; and the Lord Ordinary regrets, that from the number of cases, which it was necessary to wind up, it has not been in his power to consider this case with such deliberation, by examination of the authorities and decisions referred to, as to enable him to form any decided opinion on the most important question to be determined. The material points are, I. Whether, as to all the lands, there is an effectual clause of return, sufficient to bar gratuitous alienation or settlement? 2. Whether, as to the lands of Blairintibbert, the title of Mrs M'Kinnon Campbell was defective, in respect of the limiting quality in the precept, which was the only warrant for her infeftment? 3. Whether her title was defective, in respect of the erasures in the instrument of sasine? and, 4. Whether the pursuer is barred from objecting to the conveyance by representation of Mrs M'Kinnon Campbell?

“If the case had depended on the three last points, the Lord Ordinary would probably have felt himself ready to decide; and his present impression is, that the objections are good, and that the plea of representation is not sufficient, in respect of the decision in the case of Fife, in 1828. But as it would at any rate have been proper to order cases upon the more general question, it would not have been expedient to divide the cause.

“The question as to the clause of return is evidently important, and attended With difficulty. The distinction maintained, by the pursuer, between the case when the destination is to the natural heir, and the case where it is to a stranger, certainly was recognised in the old case of Douglas, and has been adverted to in other cases —Whether it is still a subsisting distinction in the law? Whether the single daughter, in this case, Is to be considered as a stranger? and, Whether the circumstance of the clause of return occurring in an onerous marriage-contract takes it out of the principle, if it is in force? are questions on which the Lord Ordinary will not express any opinion, because he cannot do it with the deliberation which he thinks they require.

“The propinquity of the pursuer is not distinctly admitted. But as it is admitted that she is the sister of Major Mackay, whose title as heir was fully recognised, it may be taken to be beyond any reasonable doubt.”

Pleaded for the Pursuer—

1. A clause of return to the granter himself and his heirs is of the nature of a condition of the grant, and so not gratuitously defeasible. This, as a general rule, is quite settled. 1 A certain qualification has been admitted, no doubt, as to cases when the grant is in favour of the heir alioqui successurus, but it cannot avail in the present case, except to a very limited extent, because Elizabeth Campbell, the institute in the contract of 1751, was only one of several heirs-portioners, and so, except as to the share which would have fallen to her ab intestato, she was not alioqui successurus, but a stranger to the succession. A further qualification of the rule seems also to have been admitted as to certain classes of onerous grants, but these have been only such as the granter has been under an antecedent obligation, natural or civil, to have granted. Here, however, there was no such obligation on the part of Archibald Campbell to convey his whole estate to his eldest daughter, to the exclusion of her sisters; and even if the destination were held onerous, then the clause of return must be equally so with the rest, so as not to be gratuitously defeasible.

2. The defects in the infeftment as to Blairintibbert are clearly sufficient to invalidate it; and Mrs M'Kinnon Campbell being consequently not duly vest, her settlement quoad that property is ineffectual.

3. The pursuer does not represent her brother; but, at any rate, he having taken nothing by his general service to Mrs M'Kinnon Camp bell, did not incur a representation to her according to the principles of the decision in the recent case of Lord Fife. 2

Pleaded for the Defenders—

1. It depends on the particular terms of the destination in each case, whether a clause of return shall be considered a condition of the grant, or a simple substitution. In the present case, it expresses no more than a substitution; and, besides, there is no authority for not extending to the

_________________ Footnote _________________

1 Dirleton and Stewart, p. 367; Kames's Eluc, Art. 12, Clause of Return; College of Edinburgh, February 11,1685, (M. 4342); Duke of Douglas v. Lockhart, Feb. 18, 1717, (M. 4343); Dicta in Duff v. Gordon, June 27, 1807, (F. C.); Johnstone V. Irving, June 22, 1824, (ante, III. 163.)

2 Earl of Fife v. Earl of Lauderdale, March 7, 1828, (ante, VI. 698.)

case of a grant in favour of one of several heirs-portioners, who has the character of heir, though not de jure entitled to succeed to the whole property, the rule admitted in the case of a grant to an eldest son. At all events, it is clear, that where a grant is onerous, a clause of return can have no other effect than that of a simple substitution. 1 A contract of marriage, however, is the most onerous of all contracts, and Mrs M'Kinnon Campbell being one of the heirs of the marriage in whoso favour the grant in the contract was purchased, could not be precluded from defeating, even gratuitously, this substitution.

2. and 3. Whatever might be the effect of the errors in Mrs M'Kinnon Campbell's infeftmentin Blairintibbert, her disposition, she having an undoubted personal right to the lands, must be binding on all parties representing her. The present pursuer, however, sisted herself in the action raised by the late Major Mackay, as his heir-at-law, and he again had served heir to Mrs M'Kinnon Campbell, and although in Lord Fife's case a party who had merely expede a general service, without taking benefit, was allowed to insist in a challenge of a deed of the person to whom he had served, the challenge so insisted in was rested on alleged want of power, and not on informalities in the completion of a right which the party had full power to grant, as in the present case.

The Cases ordered by Lord Moncrieff having come before Lord Cock-burn, his Lordship reported them to the Court.

_________________ Footnote _________________

1 Ersk. 3, 8, 45; Lawrie v. Borthwick, Feb. 1683, (M. 4339); Lewis v. Lawrie, Feb. 13,1736, (4 Brown's Sup. 161); Sinclair, Nov. 21,1738, (M. 4344); Duke of Hamilton v. Douglas, Dec. 9, 1762, (M. 4358.)

Lord Glenlee.—I am inclined to think that Mrs Campbell was in that situation that she might do with the subjects what she pleased. A marriage-contract is the most onerous of all contracts. I can find nothing in any decision to lead roe to hesitate that Mrs Campbell was truly the unlimited fiar. I would therefore, while we sustain the reasons of reduction so far as concerns Blairintibbert, quoad ultra repel them.

Lord Medwyn.—The first point to be determined is, whether the clause of return is effectual to bar gratuitous alienation or settlement. The effect of a clause of return in a destination of lands or bond of provision for money is different in different circumstances. Sometimes it is held to be nothing better than a simple destination, defeasible of course even gratuitously. Sometimes it is held to bar gratuitous alienation or conveyances, so that a clause of return may have a higher effect than a mere substitution. The law on this subject may be laid down in the following propositions. 1. If the conveyance or grant be onerous, fulfilling a legal obligation, a clause of return is considered gratuitous, without any just consideration, and maybe defeated gratuitously. 2. If the grant is gratuitous, without any antecedent or obligation, a clause of return is held to be a condition of the grant, so that the grant must be taken and held secundum formam doni, and cannot be defeated by any gratuitous grant of the donee. 3. If the clause of return be not in favour of the granter himself, but to a third party, it is held to be gratuitous in his person, without any due consideration given by him for it, and of course is defeasible by the grantee or substitute. 4. If the clause of return, even in a gratuitous grant, does not immediately follow the grant to the grantee and his heirs, but there are other substitutes prior to the clause of return, it may be defeated gratuitously by the grantee or his heirs, as the substitutes have no sufficient jus crediti to prevent the alienation, and of course the granter and his heirs have no right, as their interest has been by his own act still farther postponed. These principles will assist in deciding this case. The grant was onerous unquestionably, in so far as Katharine Campbell's right as heir-portioner extended; but it was purchased by the provisions of her husband, on the other hand, and the obligations incurred in behalf of the younger sisters. She is not to be viewed as a mere stranger, on whom a gift is conferred of the free will of the granter alone, even as to the other two-thirds of the estate. And, on this ground, the clause of return might be defeated gratuitously by the heir of the marriage, James Campbell. As, however, a marriage-contract is an onerous deed only in so far as the heir of the marriage is concerned, and to secure his rights, although there may be farther substitutions, the substitutes have no jus crediti, only a spes Successionis. In the case of Edgar v, Johnstone, 6th July, 1736, the contract provided an estate to the heir-male of the marriage; whom failing, the heir male of any other marriage; whom failing, the heir-female of the first marriage. The heir-male of the second marriage, it was found, could gratuitously alter in prejudice of the heir-female of the first. Because this clause of return is in a deed onerous, so far as the heir of the marriage is concerned, the clause of return is not to be held onerous, but is defeasible. It was not so held in Paton v. Nairne, 22d November, 1728. It must be defeasible also by the next substitute, as Mrs M'Kinnon Campbell was.

As to whether the title of Mrs M'Kinnon Campbell, in regard to Blairintibbert, is defective, in consequence of the limitation in the precept from Chancery, I think it is; and I also think it is so in consequence of the erasures in the instrument of sasine. As to the pursuer's title, it seems clear that Major Mackay served heir in general in order to pursue the reduction, but he took nothing. This does not infer a passive representation, as decided in Lord Fife's case.

Lord Justice-Clekk,—As to Blairintibbert I have no doubt. As to the other lands, I am for repelling the reasons of reduction.

The Court accordingly sustained the reasons of reduction as to Blairintibbert, but as to Ormaig repelled them, and sustained the defences.

Solicitors: James Malcolm, S.S.C.— Davidson & Syme, W.S.—Agents.

 SS 13 SS 246 1835

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URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0246.html