Stuart v Campbell
| Jurisdiction | Scotland |
| Judgment Date | 05 February 1852 |
| Docket Number | No. 113 |
| Date | 05 February 1852 |
| Year | 1852 |
| Court | Court of Session (Inner House - First Division) |
Lord Ivory. L.
Heir—Heir of Line and of Provision—Representation—Joint and Several—Obligation—Implied Discharge.—
Heir of Provision—Obligation—Clause—Cautioner—Joint and Several.—
IN 1814 Walter Campbell of Shawfield, and Robert Campbell, his second son, granted a bond in favour of John Donaldson, W.S., for L.2000, which sum they bound themselves, ‘conjunctly and severally, and their heirs and successors, renouncing the benefit of discussion, to content and repay’ to Mr Donaldson, and his heirs and successors. This bond was vested, by assignation, in the pursuer, Mr William Stuart.
In 1779 Shawfield had executed a trust-disposition and deed of settlement, by which he disponed his estate of Skipness to his son Robert Campbell, the other obligant in the bond of 1814, and the heirs male of his body. This deed contained a clause of warrandice against ‘all debts contracted, or to be contracted,’ by the granter. Robert Campbell predeceased his father. In 1816 Shawfield executed a codicil and additional settlement, by which, on the narrative of the former trust-disposition—of the predecease of Robert Campbell—and of the devolution of the succession to the estate of Skipness, in virtue of the trust-disposition to Walter Campbell, Robert's eldest son, he burdened ‘the said disposition, and lands and others thereby disponed, and the heirs who shall succeed to me in virtue thereof, with payment of all the just and lawful debts contracted by the said Robert Campbell, my son, and resting owing at the time of his death, in so far as those debts shall not be extinguished during my life.’
Shawfield died in 1816. At his death he was possessed of the estates of Shawfield, Islay, and Woodhall, as well as of Skipness. These estates were far more than sufficient to pay the debts due by him. They were destined, by the deed of 1779, to his eldest son, Colonel John Campbell, who also predeceased him. On Shawfield's death Walter Frederick Campbell of Islay, the eldest son of Colonel John Campbell, made up titles to these estates, as heir of line and of provision.
In 1821 Islay granted a bond of corroboration of the bond in favour of Mr Donaldson, which had been assigned to Dr and Mrs Freer. The obligation in this bond was in the following terms:—‘Seeing that the said principal sum of L.2000 sterling, contained in the said bond, with interest thereof from the said term of Whitsunday 1821, are still resting and unpaid, and that the said Mrs Margaret Thomson or Freer, and the said Doctor Robert Freer, are willing to supersede payment thereof to the term of payment after mentioned, in consideration of my granting these presents in manner under written: Therefore I, the said Walter Frederick Campbell, have become bound and obliged, as I hereby in corroboration of the foresaid bond, and of the said assignations thereof, and without hurt or prejudice thereto, sed accumulando jura juribus, and specially without prejudice to any claim competent against the representatives of the said Robert Campbell of Skipness, under the said bond, bind and oblige myself, my heirs, executors, and successors, renouncing the benefit of discussion, to make payment to’ Dr and Mrs Freer of the sum of L.2000, contained in the original bond, ‘and that at the term of Martinmas next.’
In 1842 Islay paid L.400 to account of the principal sum in this bond, and he continued to pay the interest upon it down to 1846. In 1848 his estates were sequestrated.
In 1817, Walter Campbell, the eldest son of Robert Campbell, Shawfield's second son, made up titles to the estates of Skipness, as heir of provision under his grandfather's trust-disposition and deed of settlement. These titles bore special reference to the burdens contained in the trust-disposition and the codicil of 1816. In 1845 Skipness completed titles as heir-male and heir of provision in general to his father, Robert Campbell; and these titles also bore special reference to the burdens in Shawfield's disposition and settlement and the codicil of 1816. Soon afterwards Skipness sold the estate.
The present action was raised after Islay's bankruptcy against Skipness, concluding for payment of L.1600, being the balance of the principal sum contained in the bond granted to Donaldson by Shawfield and his son Robert Campbell. The grounds of liability set forth in the summons were, 1st, That Skipness had taken up the estate as heir-male and of provision to his father Robert Campbell, the co-obligant with Shawfield in the bond. 2d, That he had taken up the estate titulo lucrativo as Shawfield's heir of provision; and, 3d, That he had taken up the estate by virtue and in terms of the codicil of 1816, by which Shawfield had burdened the estate of Skipness with Robert Campbell's debts.
The defender denied his liability on any of the grounds stated.
The Lord Ordinary ordered cases.∗
The pursuer pleaded;—1st, Prima facie, the first ground of liability, viz. the defender's representation of Robert Campbell, was well founded, inas-
much as every general service imported in law a liability for the debts of the defunct. Although the estate of Skipness originally descended from Shawfield, the present defender sold it in virtue of his double title as heir, not only of Shawfield, but also of his father. 2d, The plea raised upon the fact that the former creditor had taken a bond of corroboration from Islay, with a postponed term of payment, was founded upon the doctrine of discharge of cautioners, by the creditor giving time to the principal debtor; but that doctrine had no application to the case of heirs. An heir represented the deceased not only in his rights, but in his debts and burdens.1 He was held in law liable for his predecessor's debts, simply because he had taken up the succession. His liability was a liability in solidum, all the heirs being conjunctly and severally bound as co-obligants or principals to the creditors. Theirs was a liability imposed for onerous considerations, and the only limitation of the right of the creditor to sue them was, that when the succession came to be distributed among different heirs, it was incumbent on the creditor to sue them in a certain order. Beyond that the creditor owed no duty to any of the heirs, for in all the essentials of constitution...To continue reading
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