Scottish Court of Session Decisions

The late Colin Matheson of Bennetsfield, by postnuptial contract of marriage, entered into between him and his wife in 1786, secured his estate of Bennetsfield and Little Suddie to the heir of the marriage, and provided an annuity of £70 to Mrs Matheson, and £500 equally among his younger children. In 1788, he executed a trust-deed, proceeding on this narrative: “Whereas my affairs, by mismanagement, have gone into extreme confusion—I am owing various debts to a large amount, and at the same time desirous, so far as in my power, of preserving my estate for my family, therefore, and in order to do justice to all my creditors, I have resolved to divest myself of my landed estate, with the exceptions and reservations after mentioned.” He thereby accordingly conveyed his estate to certain persons, and the survivor of them, as trustees or trustee for the ends and uses therein get forth, whom failing, to the respondent, John Matheson, his eldest son, and the heirs male of his body; but with and under the burdens and reservations contained in the trust-deed. These were, an annuity of £50 for the subsistence of his (the truster's) family, with power to the trustees to increase it to £70, should the rents of the estate be able to afford it, and they judge it expedient, and of £50 additional on the death of his mother—the debts owing by him at the time, and the provisions contained in the postnuptial contract of marriage, “declaring also, as it is hereby specially provided and declared, that how soon the said John Matheson shall attain the age of twenty-one years complete, and shall relieve the said trustees, or survivor of them, of the whole engagements they may then be under in consequence of this trust, that then this trust-right shall cease and determine; and the said trustees, or the survivor of them, shall dispone the lands and others foresaid to and in favour of my heirs above mentioned, always with and under the burdens, reservations, provisions, and exceptions before specified.” The trustees were duly infeft on this trust-deed. In 1800, Colin Matheson executed a supplementary trust-deed, whereby he bound himself to pay £200 to each of his younger children. In 1808, the respondent John Matheson having come of age, the then sole surviving trustee under the deed of 1788, executed in his favour a conveyance of the estate, in terms of the trust-deed. Thereafter, a difference having arisen between the father and son as to their rights in regard to the estate, Colin Matheson instituted a reduction and declarator for setting aside the trust-deeds and the conveyance in favour of the son, and for having it declared that the trustees were bound to denude in his—the father's—favour. On the other hand, John Matheson, the son, raised a declarator for having it found that he had the only good and undoubted title to the lands. These processes having been conjoined, the Lord Ordinary sustained the defences for John Matheson, against the reduction and declarator at instance of his father, and assoilzied. Against this interlocutor a reclaiming petition was presented by the father, praying the Court to alter it, “and in the action of declarator at the instance of Captain Matheson to assoilzie the petitioner, to reduce, decern, and declare in terms of the libel; or, at any rate, to find that Captain Matheson is not entitled to apply any part of the rents of the estate of Bennetsfield to his own use during the life of the petitioner; but that he is bound to pay over the said rents to the petitioner.” The Court, (January 18, 1815,) on this petition, pronounced the following interlocutor: “The Lords having heard this petition, they refuse the desire of the first part of the petitioner's prayer, and adhere to the interlocutor reclaimed against; but as to the restrictive alternative prayer of the petition, remit to the Lord Ordinary to hear parties thereon, and on all other undecided points of the cause.” No further procedure followed on this. In 1813, however, and pending this litigation, John Matheson had executed a trust-deed, conveying the property to trustees—one of them being the advocator, Mackenzie, who was his father's confidential agent—for certain purposes which it is unnecessary to recite, but, inter alia, for paying over to his father annually the residue of the yearly proceeds after paying public burdens, and the interest of debts. This trust-deed was accepted of in 1817, and infeftment taken thereon. In 1821, it was proposed that John Matheson should take the estate into his own hands, and with a view to that, the advocator, Mackenzie, drew up a report of the state of the trust—of the burdens affecting the estate, and of the debts owing by Colin Matheson, the father, from which it was made to appear that the whole heritable and personal debts, whether of the trust or of Colin Matheson, (specially including a sum of £900, set forth as the extent of Colin Matheson's individual personal debts,) amounted to £11,746, and that the annual proceeds of the estate fell short of the annual burdens (including the annuities stipulated for in the original trust-deed) by £157, 6s. yearly. This report having been laid before a meeting of the trustees, with John Matheson, and other friends of the family, the following minute was entered into, of date Oct. 23, 1821: “The meeting proceeded to examine the report of Mr Mackenzie, banker, and debts affecting the estate of Bennetsfield, which they find by the said report to amount to £11,746, 12s. 1d. sterling. This sum Captain Matheson, the fiar of the estate, assumes as a real debt affecting the same on the following conditions, viz. 1st. That the trustees do recover the estate to him as fiar in absolute possession within six months, or sooner if possible, making in the conveyance the foresaid sum of £11,746, 12s, 1d. a real lien on the estate; 2d. In consideration of such reconveyance, he binds and obliges himself to fulfil and implement all engagements entered into by his father, Colin Matheson, and the trustees of the estate, successively from the commencement, in 1788, down to the date of this minute, and also to fulfil and implement, in every particular, the intentions and meaning of the late Mr Alexander Gordon of St Croix, in his two settlements, dated in 1799 and 1800, in favour of the younger children of the said Colin Matheson. 3d. In further consideration of such reconveyance so to be granted, he, the said Captain John Matheson, likewise becomes bound to execute, simul et semel, an heritable bond, by way of annuity, in favour of his father and mother, and the longest liver of them two, for the yearly sum of £300 sterling, payable at Whitsunday and Martinmas by equal portions—the first of which payments to become due and payable the ensuing term immediately after the execution of the said reconveyance, which propositions and conditions thereto annexed being considered by the said Colin Matheson, he hereby accepts thereof, renouncing all farther interest or interference with the estate.”

In terms of this minute, the estate was conveyed over to John Matheson, under the burdens there specified. In the mean time, in the years 1810 and 1815, Colin Matheson had bound himself, alongst with the advocator Mackenzie in a bond of caution for one Young, a cousin of Mackenzie's, as collector of taxes at Fortrose, and in consequence of his defalcation, demand was made on Mackenzie and Colin Matheson to make up the deficiency. This was done by Mackenzie alone, by divers payments, in the years 1815,1816,1817, and 1818; but in making up the report and state on which the minute above recited was entered into, no mention was made of any claim on his part against Colin Matheson for a share of the amount so advanced by him under their joint cautionary obligation, although a certain small sum, paid up for Young for a deficiency in his accounts as postmaster at Fortrose, for which Colin Matheson was also bound with him as surety, was charged as one of Colin Matheson's debts; and it was alleged, though of this there was no evidence, that Mackenzie was truly under an obligation to relieve Colin Matheson of all liability under the suretyship for Young as collector of taxes. Some time after the death of Colin Matheson, however, which happened in 1825, M'Kenzie raised an action before the Sheriff of Ross, concluding aginst the respondent, John Matheson, for payment of one-half of the sums advanced by him on this account, resting his subsumption of John Matheson's liability for his father's debts; 1st, On his alleged præceptio hereditatis, by taking the conveyance to his father's estate; and, 2d, On his agreement, by the minute of 1821, to assume his father's debts and obligations. In defence it was pleaded, 1st, That Colin Matheson had been absolutely divested by the conveyance to trustees, in 1788, followed by infeftment, long before the alleged debt sued for was contracted, (as had been decided in the action between him and the son,) and that the conveyance thereafter to the son was simply in implement of the terms of that deed; and that even if Colin Matheson's liferent were held to have remained with him, the possession of the estate during his life, so far from being lucrative, imported a heavy burden beyond the annual proceeds; and, 2d, That the minute of 1821 was based on a state made up by Mackenzie himself, and the obligation therein contained could not extend to any alleged claims of his own not then set forth by him, as due by Colin Matheson.

After some procedure, this process having been advocated ob contingentiam of a depending relative multiplepoinding, the Lord Ordinary found “that the defender does not, in reference to the present claim of the pursuer, represent his father, nor is in any way liable for the said claim,” and, therefore, assoilzied with expenses, adding the subjoined note. ^*