Cleghorn v Eliott. [Court of Session—1st Division.]
| Jurisdiction | Scotland |
| Judgment Date | 12 November 1840 |
| Year | 1840 |
| Docket Number | No. 2 |
| Date | 12 November 1840 |
| Court | Court of Session (Inner House - First Division) |
Ld. Moncreiff.
Restitution—Remuneration—Trustee—Entail—Expenses.—
SEQUEL of the preceding case, which see.
The judgment quoted supra, p. 16, having been taken to appeal, the House of Lords, on August 27, 1839, after hearing parties, ‘ordered and adjudged that the said original appeal be, and the same is hereby dismissed this House; and that the said interlocutor of the 31st January (signed 2d June) 1837, by which the said interlocutor of the 18th of January (signed 7th February) 1833, was, upon the said remit from this House, recalled, be and the same is hereby affirmed.’ A cross appeal was also at the same time dismissed. The judgment of the House of Lords was thereafter applied, and the cause was remitted to the Lord Ordinary to dispose of the points which remained over for decision, under the interlocutor of 31st January 1837.
Among the payments made by Riddell out of the statutory price of the lands, (the sum of £15,420, which was the price arising out of the public sale, professedly, but irregularly, carried on under the statute for redeeming the land-tax,) one sum of £622: 8: 1 stood in the following position. Sir Francis Eliott, a former heir in possession, having made certain improvement-expenditure on the entailed estate, under 10 G. III. c. 51, his trustees and executors, after his death, brought an action for payment against Sir William Eliott, the next heir in possession. The amount being ascertained to be £1462, 10s., Sir William executed an assignation,
under the statute, of one-third of the free rents of the estate of Stobs until the debt should be discharged; but afterwards, in order to avoid the expense and inconvenience of acting on that deed, he granted bond, along with a cautioner, for payment of the balance remaining due at Candlemas 1797. Various partial payments were thereafter made to account, and, in 1800, the executors of Sir Francis having demanded the balance, which was £622, Riddell paid that sum out of his own funds, and took an assignation to the improvement-debt from the executors. Subsequently he paid this debt, along with the other debts which were understood to affect the entailed estate, out of the statutory price of £15,420, as already mentioned in the previous reports of this case.It appeared that, in 1796, the balance of the debt which then remained due was £1185: 5: 10, and the free rental of the estate was £1090: 17: 4. If the executors of Sir Francis had recovered one-third of the free rental annually from Sir William in extinction of this debt, the debt would have been wholly satisfied several years before the statutory sale of the lands tools place. Sir William lived till 1812.
In the present discussion before the Lord Ordinary, parties were at issue as to their respective rights and liabilities, in connexion with this transaction.
A question was made, whether the improvement-debt had been duly constituted; but, assuming it to have been so, it was contended by the heirs of entail that, by § 20 and 21 of 10 Geo. III. c. 51, the executors of Sir Francis lost all right to claim the improvement-debt against them, in consequence of their having allowed Sir William to die without recovering one-third of the free rental annually, and thereby paying the debt. But if the sum of £622 was thus a debt for which the entailed estate and the heirs were not liable, it was not a sum which the pursuers could now, on any principle of equity, rear up against the entailed estate, because that would be placing the estate in a worse position than before the sales of land took place, which was directly contrary to the principles laid down in the previous judgments in this cause.
Riddell's trustee pleaded, that he acted as trustee for the heirs of entail, and not for the purchasers, at the sale. He had bona fide applied part of the price in payment of what was understood to be a debt affecting the entailed estate. If he had done this in error, a question might have arisen between him and the heirs of entail, arising out of his liabilities to them as their trustee. But as he was under no such liability towards the purchasers, and their present right of repetition arose out of the eviction of a subject which he (Riddell) was not bound to warrant, and had not warranted, but which was bought on the warrandice of Sir William alone, their claim could only lie against those parties who had taken back the lands then sold by Sir William. As against them, the restitution might, in the circumstances, be susceptible of more or less effect, according to the principles declared by the Court; but however that might be, there were no termini habiles for subjecting Riddell to them, who was neither acting for them at the original sale, nor had warranted the lands when formerly sold, nor had got back any part of these lands when now evicted.
The pursuers answered, that, according to the principles already fixed in this cause, either the heirs of entail, or else Riddell's trustee, must be liable for the sum in question. If the balance of £622 was a debt affecting the entailed estate, then the estate and the heirs must still be declared liable for it, because that would only be an equitable restitution, on the part of the estate, not creating any new burden against it, but merely replacing it in statu quo. But if the debt did not affect the entailed estate, then Riddell's trustee must be liable for the amount, because he could not effectually discharge himself of any part of the statutory price of £15,420, except by payments which he, as statutory trustee, was warranted at the time to make, viz. payments in terms of the statute. But the payment of a debt not affecting the entailed estate, being an unwarrantable disbursement, Riddell's trustee required now to account precisely as if the sum still remained in his hands. There was the less difficulty in requiring this, because the payment in question was not actually a disbursement made by Riddell, but a payment of a debt due to himself by retaining a corresponding amount in his own hands.
The Lord Ordinary pronounced this interlocutor:—‘ Finds that the sum of £622: 8: 1, claimed as a just debt against the entailed estate and the heirs of entail, formed part of a larger sum, which, under the circumstances ascertained on the record, must be considered as having been effectually constituted as a debt against the entailed estate, under the force, and according to the provisions of the statute 10 Geo. III. cap: 51: Finds that, in terms of the express enactments of that statute, the said sum of £622: 8: 1, with the interest accruing thereon, as the unpaid balance of the said debt, became, according to the facts admitted in this record, the proper debt of the late Sir William Eliott, the immediate successor of Sir Francis Eliott, by whom the improvements had been executed, and the burden imposed in virtue of the statute, and that the same ought to have been recovered from the third of the rents of the said estate coming to the use of the said Sir William Eliott during the years of his possession Finds it established, that if the payment of one-third of the rents so coming to the use of the said Sir William Eliott during his possession had been duly enforced in terms of the statute, or if the assignment granted to such third part of the said rents had been duly acted on, or the bond granted in place thereof duly made effectual, the whole burden imposed at the instance of Sir Francis Eliott must have been fully liquidated and paid therefrom: Finds that, in terms of the 21st section of the said statute, the executors of the said Sir Francis Eliott, and every party standing in their right, had, by neglecting to make the claim effectual to the extent of the said balance of £622: 8: 1, against the said Sir William Eliott, and allowing him to die without having recovered the same, lost all right to make any claim for the said balance against the estate, or any future heir of entail: Therefore, finds that the claim for the said sum of £622: 8: 1, as a debt which could legally have attached to the entailed estate, or to the present Sir William Eliott and the other heirs of entail, if no sale had been made, and to be now in equity imposed on them as a legal burden in favour of the pursuers, is not well founded in law,—Repels the same accordingly, and assoilzies the said Sir William Eliott and his trustees, and the other heirs of entail, from the conclusions of the action applicable thereto, and decerns:...
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