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IX.-PUBLIC STATUTES RELATIVE TO THE LAW OF SCOTLAND.
TWENTY-EIGHTH JUNE EIGHTEEN HUNDRED AND THIRTY-TWO TO NINETEENTH JULY
EIGHTEEN HUNDRED AND THIRTY-THREE, INCLUSIYE.
PRINTED BY MICHAEL ANDERSON,
HOUSE OF LORDS.
(Speeches taken from Mr Gurney's Short-Hand Notes.)
28th June 1832. No. 1.-THOMAS M'MILLAN & OTHERS, Appellants,
v. CHARLES CAMPBELL & OTHERS, Respondents. Entail — Trust-Held, affirming the judgment of the Court of
Session, that a trust-deed, conveying lands for behoof of creditors, with a rerersionary right to the granter, and on which the trustee tas infef!, does nol so divest the granter as to prevent him from executing a valid procuratory of resignation and deed of enlail.
The late David Campbell of Combie was infeft, as proprietor in fee-simple, in certain lands in the county of Argyle. Having contracted debts to a considerable amount, Mr Campbell, on 13th February 1797, executed a trust-deed, conveying his whole property, especially his lands in Argyleshire, in favour of the late James Ferrier, Esq., and certain other persons in their order, “ and to such other persons as may bereafter be named and appointed by my said creditors, pursuant to the power hereafter committed to them, as trustees for, and to the use and behoof of the creditors before named."
The deed contained full power to Mr Ferrier, or the trustee acting for the time, without any farther advice or consent from the truster or his creditors, or the other trustees, to sell the lands, and to grant dispositions to the purchasers, who should be obliged to pay the prices to the said trustee, and should have no concern whatever with the application thereof. The deed contained this farther declaration, that " after deduction and payment of my debts, as said is, that the said trustees shall make payment to me, my heirs or assignees, or to any person or persons to whom I shall direct the same to be paid, by a writing under my hand, at any time in my life (secluding executors), of the residue of my said funds, if any shall remain, and shall convey and re-dispone to me and my foresaids, the remainder of my said lands and estate, in case any part thereof shall remain unsold, with such of the debts bereby made over as shall not be recovered, and the balance, if any, due by purchasers and factors, with warrandice from his facts and deeds only."
The deed also contained an obligation to infeft the trustees, to be held a me vel de me, with procuratory of resignation and precept of sasine ; on the latter of which Mr Ferrier was infeft, and proceeded to sell a great part of the lands, with the prices of which be paid in full a large proportion of the debts, and an arrangement was then entered into, by which it was agreed that the reversion of Mr Campbell's estate should be reconveyed to him by the trustee, under
the real burden of the debts remaining unpaid. Accordingly, on 24th March 1808, Mr Ferrier executed a disposition, reconveying the unsold lands to Mr Campbell, his heirs and assignees whatsoever, with an obligation to grant procuratory of resignation in favorem, and precept of sasine, if required, and containing a procuratory for resigning the lands “ into the hands of the said David Campbell himself, my immediate lawful superior thereof, or his commissioners in his name, ad perpeluam remanentiam," &c.
Thereupon, Mr Campbell, on 21st May 1808, expede an instrument of resignation, ad perpetuam remanentiam, in his own favour ; and on 25th February 1809, he executed a procuratory of resignation and deed of tailzie of the lands, in favour of himself in liferent, and of his son, the respondent, and a certain series of heirs, in fee. This deed was duly recorded in the Register of Entails on 10th February 1814. Subsequent to his father's death in 1815, the respondent made up titles to the lands by charters of resignation from himself and the other superiors, in favour of himself and the other heirs of tailzie, on which he was duly infeft. In the meantime, the respondent contracted debts to a considerable amount, and, in particular, the several debts due to the pursuers of this action. In 1820, the respondent granted a trust-deed, and in 1827, a supplementary trust-deed, for behoof of his credi tors, conveying all his personal property, and his whole interest in the entailed estate. In November 1828, the pursuers, creditors of the respondent, and the trustees named by the trust-deed for behoof of his creditors, raised the present action of reduction for setting aside the instrument of resignation, ad remanentiam, expede by the late David Campbell, and all the deeds subsequent thereto, particularly the deed of tailzie executed by David Campbell, on the ground that, in the said instrument of resignation, the dispo. sition by Mr Ferrier, containing the procuratory on which the resignation proceeded, is described as dated “ the twenty-fifth day of March last," instead of "the twenty-fourth day of March last;" and farther, that the word “last," indicative of the year, was written on an erasure, so that the said instrument of resignation being null and void, David Campbell was not vested with a good feudal title to the lands, and consequently the deed of tailzie, and all that had followed thereon, must go for nothing, and the respondent, as his father's heir-at-law, must be considered as fee-simple proprietor of the lands, which were thus open to the pursuers' diligence. The respondent pleaded in defence-1. The objection stated to the