Bontine v Graham. [Court of Session—2d Division.]
| Jurisdiction | Scotland |
| Judgment Date | 15 November 1839 |
| Date | 15 November 1839 |
| Year | 1839 |
| Docket Number | No. 9 |
| Court | Court of Session (Inner House - Second Division) |
Lord Cuninghame. T.
Minor—Fraud—Surrogatum.—
SEQUEL of case reported ante, I. 286, which see.
This action concluded for payment of a slump sum of £40,000, being the rents of the estate of Ardoch, and other sums of money belonging to the pursuer, and intromitted with by the defender Graham, with interest from the respective periods at which the same were uplifted. The summons libelled that ‘the defender obtained possession of the (entailed) estate of Ardoch at Martinmas 1799, as the pursuer's administrator-in-law, and continued in possession thereof, and levied the rents until the year 1820, when the pursuer became major,’ &c; it also libelled that ‘the defender had drawn considerable sums from the sales of wood on the estate, and intromitted with other funds of the pursuer.’ The Lord Ordinary pronounced an interlocutor in favour of the pursuer's claim, (adhered to by the Court, December 20, 1838,) and remitted to an accountant to have the balance due by the defender to the pursuer ascertained. The pursuer having put in a state of debt in which the rents of certain portions of the estate of Ardoch, which had been sold by the defender about the year 1809, on the footing of his being fee-simple proprietor, it was objected to this charge by the common agent in the ranking and sale of Gartmore, who had been also sisted as a defender,—
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1. That the pursuer was not entitled to charge the rents of the lands in question after they were sold; that he had no claim except for the prices of the subjects sold, and that these could not be included in the present action, which applied only to the rents of the property received by the defender Graham during the pursuer's minority; and that, if he brought a new action concluding for these prices, the parties interested would then be entitled to urge the various pleas in defence which would arise in such action.
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2. That the pursuer was not entitled to charge either the rents or the prices of the lands in question against the defender, because they were not, in point of fact, entailed lands, but fee-simple lands, which he was entitled to sell. In support of this objection, the defender referred to the state of the titles under which the lands sold had been respectively held; as to which it was alleged, inter alia, that at the date of the entail of Ardoch in 1757, Mr Bontine, the tailzier, had a mere personal right to the lands, and no proper feudal title, though he subsequently acquired one, and that a portion of the lands was possessed (though for upwards of forty years) on titles of superiority merely.
For the pursuer it was answered,—
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1. That the first objection was obviated by reference to, and properly construing the Lord Ordinary's interlocutor on the merits; that the action was in substance an action of accounting, and looking to the lands sold having formed part of the estate of Ardoch as possessed by the defender on account of the pursuer, during his...
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