Lord President —The theory of the sections of the Lands Clauses Act which we have to consider is, that moneys paid as compensation for land taken from persons having limited interests or prevented from treating will ultimately be applied to clearing off burdens on land or be invested in land, except in the case of any person who becomes entitled to payment of them absolutely, and in that case they may reach his hands in the form of money. It is not disputed that the petitioner is entitled to payment of the money now in question absolutely. A person so situated is entitled under the statutes to get from the undertakers the expense of an application necessary to obtain such payment. Now, it cannot be disputed that the present petition was necessary, in the situation in which the money stood at its date, in order to the petitioner obtaining such absolute payment, and that it brings about that result. Prima facie , therefore, the petitioner would seem entitled to these expenses. The respondent's argument against the claim is rested on the previous proceeding. Now, in the previous proceeding the money was invested and placed in trust for the heirs of what was then the existing entail. Inasmuch, then, as the money was not, as the result of the previous proceeding, invested in land or applied to reducing debt, and was not paid over to anyone absolutely, it seems to me that it was one of these intermediate and temporary investments which are contemplated by section 68 of the Act, and I think it fell within the proceedings authorised for that purpose. It must have been upon this tooting that the respondents submitted to be found liable for the expense of that proceeding, for otherwise there was no warrant in the statute for fixing them with such liability.
I am therefore of opinion that the respondents are liable for the expense of this application in so far as it relates to obtaining payment of the moneys in question. The petitioner's counsel seemed to consider that the terms of the interlocutor were a little wider than is necessary, and it might well be that they should be restricted accordingly. This, however, is more a matter of expression than of the substance of the controversy.
Lord Adam , Lord M'Laren , and Lord Kinnear concurred.
The Court varied the interlocutor of the Lord Ordinary by substituting the word “uplift” for “acquire in fee-simple;” and by substituting the words “to obtain payment of the said sums” for “to acquire the said stocks in fee-simple;” quoad ultra adhered, and found the petitioner entitled to additional expenses.
Counsel for the Petitioner— Dundas, Q.C.— C. K. Mackenzie. Agents— J., C., & A. Steuart, W.S.
Counsel for the Respondents— Balfour, Q.C.— Cooper. Agents— Hope, Todd, & Kirk, W.S.