Scottish Court of Session Decisions

On January, 1712, John Mackenzie, son of Murdo Mackenzie of Ardross, married, and his father, becoming a party to the contract of marriage, executed a disposition and settlement of the lands of Ardross in favour of John and the heirs of the marriage. Under the precept of sasine contained in that deed, John was infeft on September 11, 1713. The father of John was himself duly entered with the superior, George Earl of Cromarty. In 1743, Murdo (2), the son of John Mackenzie, married, and John became a party to the contract of marriage, and executed a disposition and settlement of the lands of Ardross in favour of Murdo (2) and the heirs of the marriage. Under the precept of sasine contained in that deed, Murdo (2) was infeft on December 12, 1763. The only child born of this marriage was a daughter, who was married in 1768 to Captain James Munro of Teaninich. Murdo Mackenzie (2) became a party to the contract of marriage, and he disponed the lands of Ardross to himself in liferent, and the heirs-male of his body in fee, whom failing, to “his daughter in liferent, and to the second son to be procreate betwixt her and the said Captain James Munro in fee.” The deed contained an obligation to infeft, and a procuratory of resignation, as well as a precept of sasine. In 1778 a charter of confirmation of the disposition in the marriage-contract 1712, and sasine thereon, as also of the disposition in the marriage-contract 1743, and sasine thereon, was obtained by Murdo (2) from the commissioners of John Mackenzie, commonly called Lord Macleod, the oldest son of the deceased Earl of Cromarty. The Earl had been forfeited for accession to the Rebellion 1745, and his estates, including the superiority of the lands of Ardross, had been by 25 Geo. II. c. 41, declared to be “annexed to the Imperial Crown of this realm, and to be and remain for ever unalienable from the same.” It was not till some years after the date of the charter of confirmation that the Cromarty estate, including the superiority of Ardross, was restored to John Mackenzie.

Two sons were born of the marriage between Captain Munro and Miss Mackenzie, the second of whom was named Murdo (3), and took the name of Mackenzie. No infeftment had been taken under the settlement in the marriage-contract 1768, when Murdo Mackenzie (3), in 1795, after the death of his mother, and his grandfather Murdo (2), expede a general service as heir of provision under the marriage-settlement, and, taking up the unexecuted precept contained in it, was thereon infeft. He subsequently in 1824 sold part of the lands of Ardross, and in the inventory of the titles of Ardross, as referred to in the assignation of writs to the purchaser, the charter of confirmation 1778 was inserted, with a notandum that it was “awanting.”

In 1829 Mrs Maria Hay Mackenzie and her son John Hay Mackenzie, who were the representatives of John Mackenzie, commonly called Lord Macleod, and were duly infeft in the superiority of Ardross, raised a declarator of non-entry against Murdo Mackenzie (3), concluding for payment of the retour-duties from the death of the last entered vassal to the date of citation, and of the full rents of the lands thereafter “until the lawful entry of the righteous heir, or legal disponee thereto,” The first branch of this action was a reduction-improbation, directed against “all and sundry dispositions, &c., and all other writs and evidents, of and concerning the foresaid subjects, made, granted, or conceived by the pursuers, or their authors or predecessors, in favour of the said Murdo Mackenzie, &c., their respective predecessors or authors, as vassals therein.”

The defender, Mackenzie, pleaded, that, under the investiture which alone the superior had recognised, he was not the heir; that his elder brother, Captain Hugh Munro, now of Teaninich, was the heir under that investiture, and was entitled (so far as the superior was concerned) to enter as heir, and fill the fee; and that the action was irregular and inept, inasmuch as that party had not been called at all, though he, being the only person known to the superior as heir of investiture, was the only proper defender.

At the date when this defence was pleaded, the charter of confirmation 1778 had not been found, and. the existence of the charter was not brought under the notice of the Court. The Lord Ordinary pronounced this interlocutor:—“In respect it appears that Murdo Mackenzie, the granter of the disposition of 3d March, 1768, was not entered with the superior, finds that the pursuer was bound to call the heir of the last entered vassal; and sists process until he shall be called.” ^*

The pursuers reclaimed, and prayed the Court “to repel the preliminary defence pleaded on the ground that the heir of the last entered vassal has not been called as a defender.”

When the note came to be advised the pursuers craved a diligence for recovering certain writings, and the Court “remitted to the Lord Ordinary to grant the diligence requested on the part of the pursuer, upon payment to the defenders of the expenses of the present discussion, as the

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^* “The cases of Dundas v. Drummond, February 10, 1769, and Magistrates of Dundee v. Kidd, June 26, 1829, are referred to by the pursuer. But the decisions in both these cases depended essentially on the fact, that the granter of the procuratory of resignation was himself an entered vassal. Hero the granter of the procuratory in the marriage-contract was never entered, so that his procuratory is no warrant for resignation; and he bound himself and his heirs by the titles to complete a title, so as to validate the conveyance as a public right. It does not appear to the Lord Ordinary that the circumstance of the granter of the marriage-contract having been infeft base, can affect this question, or bring the case within the principle of those of Dundas or Dundee. Here the pursuer calls for, and necessarily calls for, all the writs constituting the title derived from the superior, as it stood in the person of the last entered vassal; and that vassal executed no deed with a double holding, or at least with procuratory of resignation, so as to entitle any other party de jure to hold of his own superior. See Gardner v. Anderson, March 1799, referred to by the defender. What the effect may be of its being held necessary to call the heir of the last vassal, the Lord Ordinary has not found it necessary at present to decide.”

same shall be modified and decerned for by the Lord Ordinary.” Subsequently to this the charter of confirmation of 1778 was put into process, and minutes of debate were ordered by the Lord Ordinary.

The pursuers pleaded, that, even if Murdo Mackenzie (2) had not been entered with the superior, it was established by the principle of the cases of Dundas, and Magistrates of Dundee, that the superior could not compel the heir of investiture to enter, where the lands had been effectually disponed away, with procuratory and precept; and accordingly that he was not bound to call the heir. ¹ But the effect of the charter of confirmation 1778 was to instruct that Murdo (2) was truly entered with the superior, and therefore the whole ground on which the previous judgment of the Lord Ordinary had been rested was now removed. It was true, that, at the date of granting the charter, John Mackenzie had not had his estates restored to him by the Crown; but that restoration was afterwards made and, jure accretionis, validated ² the charter of confirmation, rendering it to all effects as good as if it had been granted subsequently to the act of restoration. But, farther, the defender was the representative of Murdo Mackenzie (2) who asked and obtained that charter. The pursuers were the representatives of the granter of the charter. The defender was therefore barred from repudiating the charter, as much as his ancestor, if alive, would have been; and this objection applied unanswerably to him, as he had used and founded on that charter, as one of the titles to the property, by referring to it in the inventory of titles, exhibited to the purchaser of part of the lands in 1824; and, separatim, a period of more than forty years had run since the date of the charter and the act of restoration, and it was now too late, in respect of its being fortified by prescription, to challenge it on extrinsic grounds. ³

The defender answered that even although Murdo Mackenzie (2) had been entered with the superior, still the heir of the standing investiture must be called by the superior in any action of non-entry. But in reality Murdo (2) was not entered. At the date of the charter of confirmation, John Mackenzie, commonly called Lord Macleod, had not the superiority in him, nor had he ever been superior. He was not like a party having in him a radical right, but affected with a temporary disability; he was, and he had always been, wholly without any right or title to the superiority. The charter granted by him was therefore as much a nullity as if it had been granted by quivis e populo. And if this were so, the subsequent gift of the superiority to him did not validate what was previously

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¹ Magistrates of Dundee, June 26, 1829 (ante, VII. 801)—Dundas, Feb. 10, 1769 (15035.)

² Crawford, March 10, 1746 (Brown's Synops. 1167)—Boyd, February 15,1665 (Brown's Synops. 1167.)

³ Ersk. 7, 4, and 9.

a radical nullity. This was especially true, considering that the granting of a charter of confirmation was not like an onerous disposition inferring absolute warrandice, but a mere feudal act of superiority, such as that of holding a baron-court, or giving a vote as a freeholder, none of which acts, if performed by one who was not superior, could be validated by his subsequent acquisition of the superiority. As to the reference made to the charter of confirmation in the inventory to a purchaser, it was specially marked then as being “awanting,” which showed of how little account it had ever been as one of the titles to the lands. It was true that the defender represented Murdo Mackenzie (2), but if the charter were truly null, Murdo himself could have objected to the nullity quandocunque, and the defender could equally do so. And if the charter laboured under an intrinsic nullity, no course of prescription could render it valid. ¹ There was nothing in the case, therefore, in any view, to exempt the pursuer from the necessity of calling the heir of the standing investiture, who, even if not bound, was at least entitled to enter (so far as the superior was concerned) if he chose to do so. ²

The Lord Ordinary pronounced this interlocutor:—“In respect of the limited terms in which the interlocutor of the Court, remitting the cause, is expressed, which may give rise to a doubt as to the Lord Ordinary's power to give judgment in it, makes avizandum to the Court.” ^*