John Gordon of Auchanachy, and Alexander Gordon, his Trustee v. Miss Grizel Ogilvie [1762] UKHL 2_Paton_61

UKHL
John Gordon of Auchanachy, and Alexander Gordon, his Trustee v. Miss Grizel Ogilvie
[1762] UKHL 2_Paton_61
deed, he not representing her, but passing by and claiming right from a more remote predecessor. Also, that res judicata barred action; but plea of prescription repelled, in respect of interruption.Circumstances in which transaction with predecessor, was held to bar the challenge of the heir, though the deed of renunciation embodying this transaction was also sought to be reduced; and the heir insisted that he was not bound by his mother's

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Robert Middleton of Balbegno, was married to Anne Ogilvy, who was sister to the respondent's father; and by articles entered into on his marriage, he provided and declared, that the tocher given to the wife by her father, should return to her own relations, in the event of there being no issue of the marriage. He at same time took out charter of these lands of Balbegno, conceived in favour of himself and Anne his wife, and the survivor of them, in joint fee and liferent, and to the heirs of his body, of that or any other marriage, whom failing, to his own nearest heirs and assigns.An heritable bond was thereafter granted over the estate, for the tocher, bearing the conditions on which it was given, and the return of the same to the wife's relatives, in the event of there being no issue of the marriage.Thereafter, in the year 1710, Robert Middleton executed a gratuitous disposition of the said estate of Balbegno, in favour of John Ogilvie, his wife's brother, redeemable by the said Robert Middleton, for a rose noble at pleasure, and also redeemable by any heir male or female of his body, upon such heir attaining the age of twenty-one years complete.Both parties having died without leaving issue of the marriage, the estate of Balbegno, in terms of the last deed, was taken up by John Ogilvie, who was infeft, and possessed for a considerable number of years without challenge.Elizabeth Middleton or Gordon, was sister and heir of line to her brother Robert Middleton, and the mother of the appellant John Gordon, and the party entitled to succeed to the estate, but for the above deed.May 26, 1713.Sometime before her death, she had raised adjudication against the estate, on bonds due to her two deceased brothers, who were creditors of Robert Middleton, and to, which bonds she had succeeded by their decease; she had also threatened to raise a reduction of the disposition, in favour of John Ogilvie, when these matters were arranged, by a transaction and agreement, by which Mrs. Elizabeth Middleton or Gordon and her husband, agreed to accept of £377 in full, and became bound, “that neither she, the said Elizabeth Middleton, nor any of the children procreate or to be procreate between her and the said Charles Gordon,

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Instead of abiding by this agreement, as to the lands of Balbegno, she thereafter revoked the same, by a deed of revocation, setting forth, that the same was impetrated from her, without any judicial ratification on the part of her husband; she also executed a trust bond to the appellant, who thereupon led an adjudication of the estate of Balbegno, and she also brought an action of reduction of the disposition to Ogilvie. Defences were lodged; and decree of absolvitor was pronounced therein.After her death, the present action of reduction was brought by the appellant her son, against the respondent, the representative of John Ogilvie, on the ground, that at the time the marriage contract was entered into, and also at the time the heritable bond was granted, and also at the time the disposition above referred to was executed in 1710, the said Robert Middleton was of a facile and weak mind, and, therefore, that the deed ought to be set aside, as granted to the fraud and lesion of the pursuers, being the heirs to whom the estate ought to have descended. In defence, it was stated,1. That at the time of Robert Middleton's death, the estate was incumbered with debt, to the extent of 20 years' purchase, and therefore no fraud in the conveyance. 2. That the taking of an heritable bond upon the estate, bearing the tocher returnable to the wife's relations, in the event of no issue, was a usual stipulation in marriage contracts. 3. That the deceased was of sound disposing mind. 4. That the defender and her ancestors have been in peaceful possession under infeftment, for the period of the positive prescription. And, 5. That the pursuers were barred from challenging those rights, by a transaction entered into with the said Elizabeth Middleton or Gordon, whereby she, for an onerous consideration, discharged all right and claim she had on the estate, which transaction was supported by res judicata , by a decree of absolvitor, obtained in an action raised by her for the same claim, after defences being stated to the same. The answer made was, that prescription did not apply, and that as he did not represent his father or mother, but took up the estate as in hœreditate jacente hœreditate jacente of Robert Middleton, he was not bound by the acts and deeds of his mother.

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Nov. 26, 1760.On report of the Lord Ordinary, the Court found “that the defenders and their father, John Ogilvie, have been in possession of the lands and estate of Balbegno, by virtue of a charter and sasine, upwards of 40 years, but repelled the defence of prescription, in respect of the interruption thereof, by the process of reduction raised by Alexander Gordon, on the trust bond granted to him by Elizabeth Middleton in the year 1756: But sustain the defence of res judicata , proponed by the defenders, in respect of the decreet of absolvitor pronounced in the said process of reduction and improbation in their favour. And also sustain the defences that the pursuer, John Gordon, represents his father, Charles Gordon, and is thereby barred from challenging the deed of renunciation, of all claim on the estate of Balbegno, and therefore the defenders have produced sufficient to exclude the pursuer's title, and assoilzie and decerns.”Feb. 9. 1761.

On reclaiming petition, the Court thereafter pronounced this interlocutor:—

“Having advised this petition, with the answers, and heard parties' procurators upon the point mentioned in the former interlocutor, sustain the defence founded on the transaction with Elizabeth Middleton in the year 1713; and of absolvitor pronounced thereon in favour of the defender in the year 1753; and adhered to the points in the former interlocutor reclaimed against.”
Against these interlocutors the present appeal was brought to the House of Lords, in so far as these interlocutors sustained the defence of res judicata , founded on the decree of absolvitor; and the defence that the appellant, John Gordon, represents his father Charles Gordon, and is thereby, as well as by the transaction referred to, barred from challenging the deed of renunciation of the estate of Balbegno, executed by Mrs. Elizabeth Middleton or Gordon, his mother.Pleaded for the Appellants :—Elizabeth Gordon died without having made up a proper title to the estate of Balbegno. The adjudication led upon her trust bond was no more than a title to bring a process for trying her right to the estate. It was never conveyed to her by her trustee, but her action being cast upon an objection, personal to herself, the adjudication fell to the ground, and never became a title in Elizabeth to the lands. Such a title without possession is not sufficient to fix a representation upon the apparent heir, nor to divest the predecessor, and therefore the next heir may pass over without representing, which the appellant in

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Pleaded for the Respondent :—The transaction entered into with Charles Gordon and his wife Elizabeth Middleton, the appellant's father and mother, in 1713, and the decree absolving the respondent from Elizabeth, his mother's suit, whereby the matter became res judicata , are sufficient bars to the present reduction, and the defence, on these grounds, ought to be sustained, and the action of reduction dismissed. It is no answer to him to say, that he, as heir, ought not to be excluded from challenging a transaction which deprives him of his rights, he having been no party to the transaction, because, as he claims upon the same right, and the very same grounds, as his mother, and as deriving that right from her, it must descend from her to him, with all the exceptions pleadable against it, and affectable by her obligations. And the mere fact that he claims and sues for a right descendable to him, from her or his father, is a sufficient re presentation to subject him in the passive title, so far as he claims the right sued for. Besides, the appellant was further barred, by the positive prescription, because there had been continued possession of the estate by the respondent's father and his heirs upon charter and sasine, for more than 40 years, before this action was brought.

After hearing counsel, it was

Ordered and adjudged that the interlocutors complained of be, and the same are, hereby affirmed.Counsel: For Appellants, Tho. Miller, Al. Forrester. For Respondents, C. Yorke, Ja. Montgomery.

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Note .—Lord Kames says, Dec. p. 239, “This process was spun out to a great length by a multitude of points and circumstances which deserve not to be recorded. The cause, purified of its dross, resolved at last into the following point:—What should be the effect of Elizabeth's ratification? It is effectual to exclude Elizabeth herself; but is it also effectual to exclude Andrew's other heirs insisting in a reduction of the settlement after Elizabeth's death, though they do not represent her? It occurred at advising that if the reduction had been brought before Ogilvie was infeft, the pursuer could have no title without being served heir in special to the land remaining still in hæreditate jacente in hæreditate jacente of Robert. But that Ogilvie's infeftment which funditus denuded Robert of the property made the case very different. The ratification (renunciation) was accordingly sustained as a bar to the action.”