The Duke of Roxburghe and Curators - Solicitor General (Campbell - Dr. Lushington v. William Kerr - Lord Advocate (Jeffrey - Murray [1833] UKHL 6_WS_526

UKHL
The Duke of Roxburghe and Curators - Solicitor General (Campbell - Dr. Lushington v. William Kerr - Lord Advocate (Jeffrey - Murray
[1833] UKHL 6_WS_526 · 1833-08-07
A titular and patron possessing under an unrecorded entail sold teinds, and bound himself and his heirs and successors to warrant them from all future augmentations —Held (affirming the judgment of the Court of Session), that the purchaser's successor was entitled, without discussing the heirs of line of the seller, to go against the heir of entail for relief of all augmentations subsequent to the sale.By disposition dated the 11th August 1740 John Duke of Roxburghe, patron and titular of the parish of Roxburgh, sold the teinds, great and small, of the lands of Sunlaws for 80 l . 16 s . Scots (being at the rate of six years' purchase,) to Christian Kerr of Chatto (the proprietrix of the lands), and to her heirs and assignees whatsoever, under the burden of the stipend then allocated on the same and payable to the minister of Roxburgh; but his Grace bound himself, “his heirs and successors,” to warrant the said teinds from any “future augmentations.”The estates, as well as the patronage and titularity,

Page: 527 ↓

Several augmentations since the date of the disposition were awarded to the minister of Roxburgh; in particular in 1800 an augmentation was laid on the lands of Simlaws to the extent of “B. 5. 2. 2 ¼ meal,” and in 1809 the same allocation was continued,—the interlocutor of the Court reserving a claim of relief against “the representatives of John Duke of Roxburghe.” This augmentation was paid by the Duke in possession of the Roxburghe estates till 1820, when it was discontinued by the father of the present appellant. Robert Kerr, who was vested in the right of Christian Kerr, presented in a process of locality a claim for relief against the appellant as the representative of the granter; and Lord Moncreiff, on the 13th of November 1830, pronounced this interlocutor:—successors generally: Finds that the said obligation is not so constituted as to be attached as a real burden to the patronage or titularity of this parish, or to the teinds of the Duke's own lands, or any other part of the entailed estate of Roxburghe; and that although, in consequence of the Roxburghe entail not having been recorded till 1804, any debt or obligation contracted by the heir in possession may be eventually effectual to the creditor against the estate or the heirs of entail, any such obligation laid generally on the heirs and successors of the granter can only operate as an ordinary personal obligation subject to the general rules of discussion among heirs of various orders. And in respect that it clearly appears that there are other parties who represent universally the granter of the said obligation, and who, for any thing yet seen, the Lord Ordinary thinks ought to be first discussed according to the general rules of law: Finds that there are no termini habiles, or sufficient grounds in this process of locality for appointing that part of the stipend which, according to the ordinary rules of allocation, ought to be laid on the teinds of the claimant's lands as held by him by heritable right, to be allocated on the teinds of any lands of the entailed estate of Roxburghe within the parish held necessarily by an equally available heritable title: Therefore finds that it is unnecessary and inexpedient to pronounce any judgment on the import and effect of the clause of warrandice in other respects; but repels the claim of Mr. Kerr in this process, reserving to him his claim of relief generally against all the representatives of the said John Duke of Roxburghe, and to them their answers thereto, and their rights of relief among one another, as accords: Remits to the clerk to adjust the locality on the principles of this interlocutor: Finds no expenses due to either party.
“The Lord Ordinary having considered the closed record on the claim of Robert Kerr, esq., of Chatto, against the tutors of the Duke of Roxburghe, and heard parties procurators thereon, Finds that the obligation of warrandice against all augmentations of stipend contained in the disposition of teinds produced was not an obligation granted under any of the provisions of the statute in the process of sale, but a voluntary and apparently gratuitous undertaking by John Duke of Roxburghe, the granter thereof, for himself and his heirs and

Page: 528 ↓

Page: 529 ↓

Note .—Two things are to be observed in this case: 1. That the question could only have arisen on the supposition of the Duke of Roxburghe having no teinds in his hands as titular of this parish other than the teinds of his own lands possessed as heir of entail; and therefore that the real question in this process of locality is, whether the stipend otherwise allocable on Mr. Kerr's lands shall be permanently imposed on lands of the estate of Roxburghe: 2. That it is impossible in this process to determine conclusively even the question of primary responsibility or discussion among the several heirs of the granter of the obligation; because, as the general representatives of the late John Duke of Roxburghe are not and cannot be parties in this process, the point cannot be effectually determined in their absence.”The appellants reclaimed; and the Court pronounced this judgment, on 18th January 1831:—
“Alter the interlocutor of the Lord Ordinary reclaimed against, and find that under the obligation of the warrandice in question the claimant is not bound to discuss the heirs of line or the heirs whatsoever of John Duke of Roxburghe, the granter of the obligation, but is entitled to make his claim effectual at once against the present Duke of Roxburghe as the heir of entail; and with this finding remit to the Lord Ordinary to hear parties on the import and effect of the obligation in question, and to do farther in the cause as to his Lordship shall seem just; and find no expenses due.”

Page: 530 ↓

The case returned to the Lord Ordinary, who pronounced the following interlocutor:—
“Sustains the claim of relief made by Mr. Kerr of Chatto, and remits to the clerk to rectify the locality accordingly: Finds the claimant entitled to the expenses incurred by him in making up the record, in so far as relates to the obligation of relief and the construction thereof, but excluding such part of the expenses as may have been incurred by the question of representation,” &c.
Against this interlocutor, to which the Court adhered, the present appeal was brought.Appellants .—The obligation of warrandice, being entirely of a general and personal nature, cannot be enforced against the appellant, the heir of entail, until the granter's heirs of line have been discussed. It is incompetent, in the present process of locality, to depart from the course of procedure adopted in the previous localities of 1800 and 1809, by which the teinds of the respondent's lands have been localled upon for their proper share of augmentation according to the ordinary rules of allocation, leaving him to seek in due and competent form any relief to which he may be entitled against the representatives of John Duke of Roxburghe. *Respondent .—According to the established principles of teind law and the general character of the transaction, the respondent is entitled to relief in a process of locality from the party who has succeeded to the right of

Footnote

* Erskine, b. 2. tit. 10. s. 38, and b. 4. tit. 40. sec. 24; b. 2. tit. 3. sec. 28; b. 3. tit. 5. sec. 17; b. 3. tit. 8. sec. 52.

Page: 531 ↓

Lord Chancellor .—My Lords, I shall crave your Lordships leave to have a little further time to look into one or two points, there having in this case been a difference of opinion among the learned Judges; the majority of the Court not agreeing with the very learned Lord Ordinary, and those learned Judges not concurring among themselves. It is impossible altogether to reconcile this judgment with the case of Hamilton v. Nisbett . I say nothing of Hamilton v. Colebrook ; but decided by a variety of high authorities in the law, and particularly in the teind law, and decided recently, it appears extremely difficult to get over, though undoubtedly there is one difference between that case and this. I should wish, upon these grounds, to move your Lordships to postpone the judgment in this case.

His Lordship afterwards moved, and

The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this

Page: 532 ↓

Solicitors: Richardson and Connell— A. and R. Mundell, Solicitors.