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brobiects, has paid tihto time expended sublet the same as since pe

occupied the subjects specified in his claim for several years, and is now No. 3. in the personal occupancy thereof. That his elder brother, who suc

on Oct. 21, 1872. ceeded to them as heir of their father at the father's death, about eight or Ri

Rutherford v. nine years ago, agreed with the claimant to allow him to possess the Dunn. subjects, upon condition that he kept them in repair, with liberty to sublet if he thought fit, and make the most of the subjects for his own benefit. No writing passed between the parties then, or at any subsequent period. No term for which possession was to endure was mentioned, nor was any rent specified. The claimant has since personally occupied the subjects. He had never sublet the same or any part thereof, and has from time to time expended sums of money in keeping up the subjects, has paid the feu-duty of the subjects, and taxes payable by the brother as proprietor in respect thereof, and has also paid poor-rates. He has never paid any rent to the brother directly or indirectly, or has had any settlement of accounts with him in reference to his expenditure on the house and otherwise, or his possession of the house.

"In these circumstances, the claimant maintained in point of law that he had been and was in possession of the subjects as tenant, and was therefore entitled to be registered and to vote, in terms of the 6th section of 'The Representation of the People (Scotland) Act, 1868.

“The Sheriff rejected the claim, holding that the claimant's possession was not in law that of a tenant, but a precarious possession, terminable at any time at the will of the brother, and therefore not such as the said statute (section 6) requires."

William Rutherford appealed, and argued ;-Actual personal occupancy was proved. There being no written contract, the law presumed that the bargain was for a year, and was renewed from year to year by tacit relocation. The power to sublet implied power to maintain accupancy for a


LORD ARDMILLAN.-Permission to sublet must be assumed to have been part of the bargain, according to the distinct statement to that effect made by the Sheriff in the special case, and we must hold that it is so. If permission to sublet be a condition between the proprietor and the tenant, the proprietor making such a condition could not eject a subtenant; and the man who can thus sublet must be tenant, because no man can sublet unless he himself be tenant of the subjects. Besides, the claimant has occupied on the footing of tenancy. He has paid the annual burdens and taxes which were due by his brother as proprietor, such payments by him being a consideration in lieu of rent; and if, while so doing, he also had power to sublet, there can be no doubt that his tenure is of such a nature as to entitle him to the franchise.

LORD ORMIDALE.—I am of the same opinion.

The case may be tested in this way: Suppose a question had arisen in the Sheriff-court between this claimant and the party from whom he derives his right, and that the latter had, after the claimant had the possession, as is here set forth, and had paid annual burdens and taxes as stated, tried to eject him summarily, the claimant could, I think, have successfully answered that, according to the true construction of the agreement, he held at least a yearly tenure of this property as tenant. As tried by that test, the construction here contended for by the claimant must, I think, be held to be the true construction.

I therefore agree with your Lordship that the Sheriff has fallen into error in the present case, and that the judgment appealed against must be reversed, and the appellant's name should be added to the roll.

1 Stewart v. Grant, Dec. 19, 1868, ante, vol. vii. p. 311 ; Hilston v. Scott, Nov. 24, 1870, unte, vol. ix. p. 14.


No. 3. LORD BENHOLME.—I agree with your Lordships.

The Sheriff here has gone upon the ground that this claimant had only a precariOct. 21, 1872. ous possession, entitling the landlord to turn him out on a week's notice. But

V. surely this view is quite inconsistent with the fact that the claimant got a power Dunn.

to sublet. This power to grant a sublease seems to me necessarily to imply that
he was tenant for a year at least, and unless he got notice before Whitsunday he
must be considered to have held upon tacit relocation from year to year. We
must alter this finding, and remit to the Sheriff to add the claimant to the roll.

THE COURT reversed the Sheriff's judgment.

Ld. Ormidale

No. 4. THE LORD ADVOCATE, First Party.—Sol.-Gen. Clark-Rutherfurd.

THE MARCHIONESS of LANSDOWNE, Second Party.—ShandMarshall. Oct. 15, 1872. Lord Advocate SuccessionInventory-Duty23 and 24 Vict. c. 80Discharge-Confusionv. Marchioness of Lansdowne.

* Entail.The proprietrix of an estate under a deed of entail granted a bond of annualrent for improvement outlay under the Montgomery Act in favour of herself, her “ heirs, executors, successors, and assignees," on which bond infeftment was taken. It was afterwards discovered that the entail was defective, and that she held the property in fee-simple. She thereupon executed a new deed of strict entail, expressly under burden of the above mentioned bond of annualrent, but with the provision that, in the event of her making no separate conveyance of it, it should accrue to the institute or heir of entail succeeding to the estates. She died without making any such separate conveyance.

Held that the bond of annualrent did not fall to be included in the inventory of the deceased's estate, under the statute 23 and 24 Vict. c. 80, as it was not in bonis of the deceased, there never having existed a proper relation of debit

and credit between the entailed estate and her. 20 Division. This special case was brought under the Act 19 and 20 Vict. c. 56, ndale. with reference to the succession to the late Margaret Mercer Elphin

stone of Aldie, Baroness Keith and Nairne and Countess de Flahault.

The Baroness Keith was the only daughter and child of the marriage between the Honourable George Keith Elphinstone and Jane Mercer. She was served heir of tailzie and provision in special to her maternal grandfather, William Mercer of Aldie, who died December 1790, in the lands of Meikleour, Kinnaird, Aldie, &c., in the county of Perth. The service was dated 16th March, and the retour was recorded 4th April 1793. The Baroness Keith, as heiress of entail in possession of the lands and estates of Aldie and Meikleour, &c., as authorised by the Court of Session, granted bond of annualrent, dated the 1st and 3d March 1851. She thereby bound and obliged herself “and the heirs of entail in their order successively succeeding to me in the foresaid entailed lands and estates of Aldie and Meikleour, &c., to make payment to myself, the said Margaret Mercer Elphinstone, Baroness Keith and Nairne, Countess de Flahault, and my heirs, executors, and assignees,” of an annualrent of £485, 15s. 6d., or such other annualrent or interest during her life as should correspond to the sum of £9715, 10s. 9d., being three-fourths of the sums expended by her on improvements on the said estates. Further, by the said bond the Baroness Keith bound and obliged herself “and the heirs of entail in their order successively succeeding to me in the foresaid entailed lands and estates of Aldie and Meikleour, &c., to make payment to myself, the said Margaret Mercer Elphinstone, Baroness Keith and Nairne, Countess de Flahault, and my heirs, executors, successors, and assignees, of an annualrent of £7, 2s. sterling for every £100 of the foresaid sum


of £9715, 10s. 9d., for each and every year of the full period of twenty- No. 4. five years after the day of my death, and no longer.” The bond gave real security over the estates of Aldie, Meikleour, &c., for both annualrents. An instrument of sasine in favour of the Baroness Keith followed on v. Marchioness the said bond, and was recorded in the General Register of Sasines at of Lansdowne. Edinburgh the 22d July 1851.

After the execution of this bond of annualrent it was discovered that the deeds of entail under which the Baroness Keith held the said lands of Aldie, Meikleour, &c., were defective, and that she really held as fee-simple proprietrix. She accordingly, on 21st November 1866, executed a deed of strict entail comprehending the said lands and estates of Aldie, Meikleour, &c., by which she conveyed the said lands to her eldest daughter, the Marchioness of Lansdowne, and the other heirs of entail therein mentioned, but reserving her own liferent of the said lands and estates thereby disponed, and full power and liberty to herself, at any time of her life, to alter or revoke the deed of entail in whole or in part. The disposition in the deed of entail was granted expressly under burden of the bond of annualrent already referred to, and it further contained the following clause:-“And I hereby declare that in case I shall not, during my lifetime, nor by any mortis causa deed or settlement, specially dispone or convey the whole or any part or portion of the foresaid two annualrents, then the whole, or such part or portion thereof as may not have been so disponed and conveyed by me, shall accrue to the institute or heir of entail succeeding under this present deed of entail, and the lands and others above disponed shall be free and relieved from the same in all time coming.” No special disposition or conveyance of the said annualrents was ever made by the Baroness Keith. She died in 1867, and was survived by two daughters, the said Marchioness of Lansdowne and the Honourable Georgina Elphinstone de Flahault. Her personal and other property not included under the foresaid deed of entail was, in terms of a trust-disposition and settlement dated 13th December 1824, equally divided between her two daughters. The elder, the Marchioness of Lansdowne, succeeded to the entailed estate of Aldie, Meikleour, &c.

In the succession-duty account delivered to the legacy and successionduty department of the Inland Revenue on behalf of the Marchioness of Lansdowne the rental of the heritable property was stated without deduction of the annual amount of the bond of annualrent in favour of the Baroness Keith for the improvement debt of £9715, 10s. 9d. The value or amount of the bond of annualrent was not added to the inventory of the personal estate of the Baroness Keith.

In these circumstances the Lord Advocate for the Crown maintained that the disposition and deed of entail of 1866 being revocable was testamentary, and was one of the instruments forming the will of the Baroness Keith; that the bond of annualrent for the improvement debt of £9715, 10s. 9d. was a real burden on the estates of Meikleour, &c., and was inoney secured on heritage belonging to the Baroness Keith at the time of her death, and formed part of her succession; that the said entail of 1866 being unrevoked, and no other testamentary deed disposing of the said bond of annualrent having been made by the Baroness Keith, the said bond of annualrent was carried by the destination in the said entail to the Marchioness of Lansdowne; that the said sum of £9715, 10s. 9d. secured by the said bond of annualrent was liable to inventory-duty, and such duty was payable by the Marchioness of Lans


On the other hand, the Marchioness of Lansdowne maintained that the Baroness Keith, by the disposition and deed of entail of 1866, “ freed

No. 4. and relieved ” the entailed estates of the bond of annualrent, and that

... the deed of entail did not carry the bond of annualrent to her, and that Oct. 15. 1872. Lord Advocate

2: the same never belonged to her, and she never had power to assign the v. Marchioness same, or to keep the same up as a debt against the estates : Further that of Lansdowne. the estates, freed of the bond, having been conveyed to her as institute

under the deed of entail, and she having paid the whole Government duties exigible from the lands, without deducting from their value the bond of annualrent, the claim for inventory-duty on the capital of the bond of annualrent, which was not bequeathed to her either in liferent. or fee, and which from the date of the deed of entail (if not also previously, confusione) had ceased to exist, was unfounded. Separatim, Although it were held that the Baroness Keith had not discharged the bond of annualrent during her life by a formal deed, she had, under the disposition and deed of entail executed by her, effectually indicated her intention that the bond of annualrent was not to burden the estates and series of heirs called to the succession. Such intention destinatione regulated the character of the succession and mode of payment of the duties to Government, and in the present case was equivalent to a formal discharge of the bond executed by the Baroness Keith in her lifetime.

The question submitted for the decision of the Court was whether the Marchioness of Lansdowne was liable to pay inventory-duty on the sum in the bond of annualrent, under the statute 23 and 24 Vict. c. 80, as part of the succession of the Baroness Keith, deceased.

The Lord Ordinary (Ormidale) pronounced the following interlocutor :“ Finds, in answer to the question submitted for the decision of the Court in the special case, that the Marchioness of Lansdowne is liable to pay inventory-duty on the sum in the bond of annualrent, under the statute 23d and 24th Victoria, cap. 80, as part of the succession of the Baroness Keith, deceased."*

*“ NOTE.—By the statute referred to it is enacted that the money secured on heritage shall be liable in inventory-duty as if it had been personal or moveable estate.

" That the bond of annualrent in question was in itself of the nature and in the form of an beritable security is indisputable. But the defender contends that, as the entailed landed estate over which the bond bears to be heritably secured turned out not to be entailed at all, but held in fee-simple by the Baroness Keith, and as she was then also the creditor in the bond-or in other words, as the Baroness was thus at one and the same time in right of the bond and unfettered proprietrix of the lands over which the sum in the bond was heritably secured, the latter became extinguished confusione. It appears to the Lord Ordinary that this contention of the defender is not well founded.

“ As a general principle of law it is no doubt true that when the same person comes to be both debtor and creditor in an obligation it is to be held as extinguished confusione. But it is equally clear, on the authorities which will be afterwards referred to, that this principle is subject to modification and exception according to the circumstances in which it arises.

" No alteration or revocation having been made by the Baroness the result is that the bond of annualrent in question has upon her death devolved upon her eldest daughter, the defender, as institute under the entail of 1866 of the landed estates ; and in this way it may be said that the bond then came to be extinguished confusione in the person of the defender. But the duty now claimed is on the inventory, not of the defender's estate, but of that of the deceased Baroness Keith. In these circumstances, the Lord Ordinary thinks that, in the person of the Baroness, the bond had not been extinguished confusione or otherwise, but, on the contrary, must be held to have subsisted down to her death, as a

The Marchioness of Lansdowne reclaimed.

No. 4. At advising,

Oct. 15, 1872. LORD JUSTICE-CLERK.—The question submitted for the decision of the Court LO

urt v. Marchioness is, whether the Marchioness of Lansdowne is liable to pay inventory-duty on of Lansdowne.

separate and independent heritable right, and that equally whether the landed estates are to be considered as entailed or unentailed when the bond was executed. It may be that while, and so long as the Baroness lived, and was herself in right both of the entailed lands and the bond of annualrent, the latter was dormant, but not extinguished ; for she might, in the Lord Ordinary's opinion, have destined and left it, not to the defender, but to her younger daughter, or any one else she pleased. It is true that she left it to the defender as institute in the entail of 1866, but this of itself shews that it had been down to her death a separate part of her estate, and so dealt with. Accordingly, if she had not by her deed of 1866 specially disposed of the bond in the way she did, the succession to it and to the entailed lands would have been different, the bond going to her two daughters equally, and the entailed lands devolving, in the first instance, wholly upon her elder daughter.

“ The views entertained by the Lord Ordinary, in regard to this case, as now explained, are supported, he thinks, by the authorities—Stair i. 8, 19; Ersk. iii. 5, 27; and Bell's Principles, sec. 580. According to these authorities, it is clear that confusio does not always, when the two rights come to be vested in the same person, effect an extinction of either right. Thus, in the words of Mr Erskine—Sometimes it produces only a temporary suspension of it, while the debtor and creditor continue one and the same person, or while the same person is entitled to the succession of the two several rights from the different destinations of which the confusio flows. But when the succession of these rights happens again to divide in two, the obligation or right which lay for a while sunk or dormant confusione revives and recovers its first force—(Stair, December 21, 1680; Cuninghame (Dict., p. 3038), January 4th, 1726 ; Cumin (Dict., p. 3042), cited (folio) Dict. i. p. 196 ; Stair, i. 18, 9). Hence the conveyance of a debt affecting an entailed estate in favour of the heir of entail and his heirs whomsoever does not import a perpetual extinction of the debt. The debt is indeed dormant during the life of the disponee ; but if the heir-at-law and the heir of entail happen at any time after to be different persons the ground of the extinction, or rather of the suspension, ceaseth, and consequently the debt will revive in the person of the heir-at-law against the heir of entail, for it is considered as a separate estate in the absolute power of the heir who purchased it, and affectable by his creditors—Fac. Coll., ii. 63, art. 2 (Gordon, Dec. 1, 1757, Dict., p. 11,164). Nay, though the deed assigning the debt to the heir of entail should also contain a discharge of it in his favour, as having made the payment, the discharye hath not the effect of extinguishing it confusione, seeing that part of the deed which assigns it is a sufficient indication of the heir's intention that it should still continue to subsist in his person—Fac. Coll. ii., 101 (Kerr v. Turnbull, February 15, 1758, Dict., p. 15,551).' Mr Bell states the same doctrine thus :- Where the creditor has an interest to keep up the debt, it is held to be suspended, not extinguished. So the debt may be assigned, and money borrowed on it; or it may be kept up for the benefit of children, as by an heir of entail ; or in contemplation of a divergence of the lines of succession, it may be made available to a particular heir,'—and both the learned authors refer for illustrations of the doctrine they state to numerous decided cases.

" It was argued, however, for the defender, that the doctrine and decided cases referred to can have no application except where one of the rights relates to an entailed estate, the destination of which is beyond the power of the proprietor to alter. It no doubt appears to be true that in most of the decided cases the question has arisen where one of the rights related to an entailed estate ; but the doctrine, as stated by the commentators, is not limited to such cases, and the decisions do not in every instance relate to entailed estates. For example, in the case of Lady Halgreen v. Burnett, 30th July 1702, vol. iv. of

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