George Dunlop, Writer to the Signet, Trust-Disponee of Dr David Ramsay - Fullerto - Murray v. Admiral Sir Alexander Inglis Cochrane - Shadwel - Menzies [1824] UKHL 2_Shaw_115

UKHL
George Dunlop, Writer to the Signet, Trust-Disponee of Dr David Ramsay - Fullerto - Murray v. Admiral Sir Alexander Inglis Cochrane - Shadwel - Menzies
[1824] UKHL 2_Shaw_115 · 1819-01-09
A party being in possession of an estate under an ex facie good title, but not infeft, and another party, with a view to make up a tentative title to the estate, having executed a disposition of it in favour of his agent ex facie absolute, but qualified with a back-bond declaring that it was in trust; and the trustee having brought an adjudication of the estate, founding on the disposition;—Held, (affirming the judgment of the Court of Session), 1. That the party in possession was entitled to object to the adjudication; and, 2. That it was not competent to adjudge the estate on such a disposition.In 1719, Alexander Inglis executed an entail of his estate of Murdiestoun, in the county of Lanark, in favour of Alexander Hamilton, and a series of substitutes, who were bound to assume the name of Inglis. In virtue of this deed, Alexander Hamilton acquired right to the estate, and possessed it till 1783, when he died, and was succeeded by his younger brother, Gavin. On the death of Gavin, in 1798, he was succeeded by his youngest

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The Lord Ordinary, on advising the representation, with answers, appointed them to be printed, in order to be reported to the Inner-House, and at the same time issued this note:—
“The Lord Ordinary has appointed this cause to be reported, not from considering that, after the numerous decisions of this Court, the case is attended with difficulty; but because wherever there is any question with regard to a tentative or vesting title, it requires the most summary dispatch that the forms of the Court can admit of.”

The case having accordingly come before the Court, their

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Against the above judgments of the Inner-House the appellant entered an appeal, and contended that they ought to be reversed, for these reasons:—1. Because, as the respondent had not been infeft in the estate of Murdiestoun, he had no right to appear as a party in the adjudication.2. Because, even although he had made up a title to the estate, still he was not entitled to appear in the process, as, the object of the adjudication in implement was merely to attach any right which Dr Ramsay might have to the estate, tantum et tale as it stood in his person, and was not intended to affect, nor could it injure, the right of the respondent to that estate. And,3. Because an adjudication in implement, upon a disposition to an estate, with a trust back-bond, was a mode of making up a tentative title, laid down by institutional writers on the law of Scotland, and recognized by various decisions of the Court of Session: that if the respondent had a right to the estate, it could do him no injury, while, if the adjudication were not permitted to proceed during the life of Dr Ramsay, and if he had the best right to it, he would be deprived of the power of executing any settlement in relation to the estate.

To this it was answered, —

1. That as the respondent was in possession under an ex facie good title, he had a right to maintain and defend that possession, by resisting every encroachment upon it. And,2. That an adjudication in implement of an estate not proved to belong to the disponer, but of which another party stood possessed, was contrary to the principles of law, and not sanctioned by any authority. In support of this it was maintained, that as a decree of adjudication in implement of such a disposition, implied

Footnote

* See Fac. Coll. 4th July 1820, where it is stated, that “a majority of the Court were of opinion, that it would be harsh to allow infeftment to proceed upon this adjudication. With regard to the alleged practice, they thought that, if it existed, it was improper, and the sooner it were checked the better.”

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The House of Lords “ordered and adjudged, that the appeal be dismissed, and the interlocutors complained of affirmed; and it is further ordered, that the appellant do pay to the respondent, Sir Alexander Inglis Cochrane, L.100 for his costs.”Appellant's Authorities .—4. Stair, 51. 9.; 3. Bank. 5. 101.; Tod, December 16. 1707, (190.); 3. Stair, 3. 47.; Govan, March 10. 1813, (not rep.); Beveridge, July 10. 1793, (5296.); Kerr, January 19. 1808, (No. 6. App. Adjud.) Respondent's Authorities .—3. Stair, 2. 53.; 3. Bank. 2. 83.Solicitors: J. Richardson— Spottiswoode and Robertson, — Solicitors.

(Ap. Ca. No . 22. )