Earl of Home v. Lyell. Earl of Home v. Jamieson

Subject_1 Superior and Vassal Subject_2 Implied Entry Subject_3 Conveyancing (Scotland) Act 1874 (37 and 38 Vict, c. 94), sec. 4 Subject_4 Trustees, whether Liable as Singular Successors.

In a similar action at the instance of the superior against the judicial factor upon a trust for creditors, constituted by a mortis causa conveyance of lands with a power of sale for payment of debts, with a direction to convey to the trustees under the above-mentioned trust-disposition and settlement such part of the lands as might remain unsold— held that the case was not distinguishable from the above.

Charles Lyell (the second) died in 1852. In that year the trustees took infeftment in terms of the precept of sasine, and in the same year Sir Charles Lyell applied to the then superior, and obtained a precept of clare constat in his favour as the eldest son and nearest and lawful heir of provision to his father Charles Lyell (the second). It did not appear in the case whether his infeftment or that of the trustees was first in date.

The pursuer pleaded—“(1) A casualty of one year's rent of the lands described in the summons having become due to the pursuer, as superior thereof, by the defender, upon the death of the said Sir Charles Lyell, the previous vassal, the pursuer is entitled to decree as concluded for.”

The defender pleaded—“(2) The infeftment of the defender being merely a burden upon the radical and proper title to the estate, and the heir being willing to enter to said radical and proper title with payment of a relief-duty, the defender should be assoilzied. (3) The defender, by the terms of her title, holding only for the heir of the investiture, and having no power of transmission to any but the said heir, the pursuer is not entitled to more than relief-duty.