Sir William Erskine of Tory, Bart., eldest son of the late Sir William Erskine of Tory, Bart., and Sir Wm. Forbes, Bart., and Alex. Forbes, Esq., second son of the late David Forbes, W.S., and Others, his Trustees, Respondents
Subject_Superior and Vassal — Warrandice — Damages — Penal Action. —
A superior and his agent gave a vassal an entry, after the superior had divested himself, by a sale of the superiority, to another superior. The consequence of this was, that a title made up as of fee to an entailed estate, was disappointed and rendered invalid. In an action of relief and damages raised, after the death both of the superior and his agent, brought against their heirs and representatives, Held that an action, penal in its nature, did not transmit against heirs, and that, besides, here the entry so taken, was devised to defeat the entail, and therefore versans in illicito.
John Banaldson inherited certain estates descending to him by entail, namely, Blairhall, and the lands of Longleys and Westerbroom, purchased by his father from Doctor Erskine, who retained the superiority.
He had made up titles to Blairhall under the entail, but not to those of Longleys and Westerbroom, having in view to claim the fee of these lands, although the entail included them.
1786 and 1789.
In consequence of his father’s debts, and his own, he was obliged to execute a trust deed in favour of the appellant, for behoof of his creditors, conveying the rents of the estate of Blairhall, and the fee of the lands of Longleys and Westerbroom. This deed was acceded to by most of his creditors, and in particular, by the appellant and by John Ranaldson’s mother, and Mrs. Ann Ranaldson Dickson, and his other sisters, who were next heir substitutes of entail.
The appellant, as trustee, then proceeded to complete his title under the trust-deed. In doing so, it was necessary to apply to the superior for a precept of dare in favour of John Ranaldson as to these lands. This was done by applying to the late David Forbes, agent to the late Sir William Erskine, the superior, in the following manner.
“J. Syme presents compliments to Mr. Forbes, he will be so good as make out a precept of clare constat in favour of Mr. Ranaldson as soon as possible.—Windmill Street, Friday.”
Mr. Forbes, without stating that his client had, some time ago, sold the superiority of these lands to Mr. Mutter, and, consequently, could not grant such, immediately prepared a scroll of a precept, which was marked by him on the 28th of Sept. The precept itself was signed by Sir William Erskine, as superior, on 22d October 1789, and this having been notified by Mr. Forbes to the appellant, Mr. Syme wrote in the following terms:
“Mr. Syme presents compliments to Mr. Forbes, and begs he will give the bearer the precept of dare constat in favour of Mr. Ranaldson, with the disposition and infeftment in favour of his father. J. S. begs leave to send by the bearer the fees. Mr. Forbes will please send a receipt for the feu duty.—27th October 1789.”
Mr. Forbes answered:
“Mr. Forbes returns compliments to Mr. Syme, whose card he has just now received. Giving up the precept infers discharge of the feu duty, but Mr, Syme should have shown that preceding 1787 it has been paid, and therefore he will please send for the discharges of them; or write to Mr. William Gulland, Sir William Erskine’s factor at Tory, to know if the feu-duties preceding the 1787 have been paid.—28th October.”
After further correspondence, and upon payment of the years’ feu-duty, from 1788 to 1789, and the fees for the precept of dare; the precept was delivered over, and an infeftment was taken upon it in favour of Mr. Ranaldson. He died in 1796, having the year before granted a disposition of his whole heritable and moveable property, including the lands in question, to the appellant, in trust for his creditors. On this trust, he proceeded to sell these lands, at the sale of which the blunder was discovered, that they had taken a title from the wrong superior; whereupon the next heir of entail, Miss Ann Ranaldson interfered, and raised an action of reduction, and succeeded in reducing the title, which, but for the blunder, she could not have done, because John Ranaldson, as disponee in the entail, was entitled to take up the estate as in fee.
After both Sir William Erskine’s and Mr. Forbes’ death, the present action of relief was then raised against Sir William Erskine, as representing his father, and his agent’s representatives, to indemnify for the loss thus occasioned.
In defence, it was pleaded, 1st. That the precept of clare constat neither gave nor implied any warranty that the granter was truly the superior; 2d. That the appellant had himself to blame for the mistake, which his application to Mr. Forbes, and his conduct in the business occasioned; 3dly. That as it originated in a fraudulent scheme of the late Mr. Ranaldson, to defeat his father’s entail, in which the appellant, as the agent of that gentleman, and to serve his own private views, participated, they could not be suffered to make the defeat of that scheme, whether from accident or negligence, a ground of an action of damages. 4th. That as Mr. Ranaldson could have qualified no damage, because, if he had succeeded obtaining a good title, which a purchaser might have relied on, and had sold the property, he must still have been answerable for the full amount, at least to the heirs of entail, in defraud of whom he acted. And, lastly, that actions penal in their nature do not transmit against heirs. The Court allowed a proof of the circumstances.
It was proved that David Forbes, as the superior’s agent, had revised the disposition and sale of the superiority to Mutter in his own hand writing, in June 1788; that it was engrossed in the chartulary, five pages distant from the precept of dare constat—that he had taken a bond for the price of the superiority lands, and that a settlement of accounts between David Forbes and his client had taken place, in which the transactions were set forth.
Mar. 11, 1800.
Jan. 21, and June 16, 1801.
The Lord Ordinary pronounced this interlocutor, “Having considered the mutual memorials for the parties, assoilzies the defenders simpliciter, and decerns, supersedes extract till the third sederunt day in May next, and dispenses with representation.” On two reclaiming petitions the Court adhered. *
Against these interlocutors the present appeal was brought to the House of Lords.
Pleaded for the Appellant.—If Sir William Erskine had been superior of the lands of Longleys and Westerbroom, at the time he granted the precept of clare by the advice of his agent, Mr. Forbes, it is quite clear that the appellant, and other creditors of Mr. Ranaldson, who had acceded to the trust deeds granted by him, on the faith of his making up a title to the lands in fee simple, might have sold these lands, and applied the price towards extinction of the debts, without possibility of challenge from the heirs of entail; because it is a settled point, that when the substitute of an entail makes up his titles, referring to the different restrictions of it, but without narrating them verbatim, the entail is ineffectual against creditors. Or if the superior even had refused to grant a precept of clare constat, the right of the appellant and other creditors might have been completed otherwise, by charging John Ranaldson to enter heir to his father; but the appellant was prevented from having recourse
to this mode, from relying on the precept of dare being granted by the right superior, he having every right to believe him such, from paying him the feu-duty, and not being told by Mr. Forbes, at the time, on application for the precept, that his client was not then superior, and therefore, in consequence of their gross negligence, the appellants are entitled to relief. The respondents’ ancestors had no excuse. They could not plead ignorance, for the sale of the superiority had only taken place a year previously, when the whole affair must have been fresh in their recollection, yet not the remotest hint is given of the matter, and Sir William Erskine signs the precept of dare constat, for the usual gratuity and fees, on the representation that he was still superior.
B. iii. tit. 5, § 26.
Pleaded for the Respondents.—The granter of a precept of dare constat comes under no engagement to warrant its efficacy, express or implied. It generally bears to be granted salvo jure cujuslibet, and, at any rate, that is understood. The nature and course of the proceeding demonstrate that this must be the case. And it is always granted on application of the vassal, on such evidence as he may tender, and as a matter of favour, and to save him the circuitous mode and expense of a special service. It is also granted periculo petentis. Lord Stair says:—
“Infeftment being passed on such a precept, giveth the party the real right of the lands, if done by the right superior. It will not be sufficient title as to the real right of the ground against any other party than those who acknowledge the giver thereof to be the superior, and the receiver to be heir. For if, upon any other colourable title, they question any of these, the infeftment and precept of dare constat will not be sufficient alone, unless it have obtained the benefit of a possessory judgment or prescription.”
From this doctrine, it follows, that the vassal or receiver of such a precept, was always bound at all times to show that the granter was the true superior. The appellant therefore was to blame in the matter, for not satisfying himself. Being employed to make up the title, he ought to have inquired into the right superior. He never put the question to Mr. Forbes. All that he seemed anxious for, was to get the precept of dare in a great hurry, in order to cut out the heirs of entail from claiming the lands in question. Looking, therefore, to this circumstance, and to this hurry, and to the fact that Mr. David Forbes was then eighty-two years of age, at which some want of recollection is allowable,
the blame rather lay with the appellant. At all events, he who seeks damages, ought to come into the Court with clean hands. The appellant and his employer were intending to resort to a scheme, by which the persons entitled to succeed under the entail, were to be defrauded of their rights. The appellant says he had the consent of the next heir, but there were many whose consent ho had not. Besides, as the appellant can only plead in room, and in right of John Ranaldson, and could have no better right than he had, which was one under the entail,—as he could not have specified any damages, so neither can the appellant. Besides, penal actions cannot be maintained against the respondents, Sir William Erskine and Mr. Forbes’ representatives, on account of alleged fault of those whom they represent. For the culpable act of an ancestor, the heir is not liable, and therefore, on this ground alone, the action must fall.
After hearing counsel, it was
Ordered and adjudged that the appeal be dismissed, and that the interlocutors therein complained of be, and the same are hereby affirmed.
Counsel: For Appellant, John Clerk, David Douglas.
For Respondents, C. Hope, Wm. Adam.