This page is is an accessory to the article of the
Douglas family of Earnlaw.
Grace and Rachel Douglas , Daughters of the deceased James Douglas of
Earnslaw , Dalrymple , for themselves and as Aflignees of Mr. Alexander
Douglas their uncle and Lt Robert Douglas, their brother..
GRACE AND RACHEL DOUGLAS, DAUGHTERS OF
THE DECEASED JAMES DOUGLAS OF EARNSLAW, FOR THEMSELVES AND AS
ASSIGNEES OF MR ALEXANDER DOUGLAS THEIR UNCLE, AND LIEUT ROBERT
DOUGLAS THEIR BROTHER -V- JOHN MONTGOMERIE, HUGH PATERSON, JAMES
MORE, AND OTHERS, CREDITO; HL 18 JUN 1714
Fiar – An estate being
settled by an heiress to her husband and herself in conjunct fee
and life-rent and the heirs to be procreated between them in
fee, whom failing to the husband, his nearest lawful heirs and
assignees; the husband was fiar.
Donatio non praesumitur –
The fee taken up by a daughter as heir to her father, where a
disposition had been made to a Ion (dceased), upon which
infeftment had followed, but never cloathed with possession nor
recorded.
Adjudication – A charge being given to a son to
enter heir to his uncle and mother, and adjudication being led
thereon; but the father being afterwards found to be fiar, the
first adjudication is reduced.
The said son refusing to
subject himself to his father’s debts, has no title to quarrel
the adjudication led of his father’s fee.
John
Greden of Earneslaw, dispones the said lands to John Greden his
son, with certain burdens, redeemable upon payment of 20 merks ;
whereupon the son is 'infeft, but the sasine never registrated.
The son dying before his father, Grace Greden, as the only
surviving child, becomes heir served and retoured to her father,
without taking notice of John her brother, whose infeftment at
tained no possession ; and she, by contract of marriage,
disponed the lands to Mr James Douglas, from whom they were
adjudged. The Creditors having now right to that adjudication,
pursue a declarator of their right, and of the expiration of the
legal,
It was alleged, for Mr Alexander Douglas : That he had
adjudged the same lands from Robert Douglas, son of the marriage
betwixt Mr James, and Grace Greden, as lawfully charged to enter
heir in special in these lands to John Greden his uncle ;
whereby he being in the place of the said John Greden younger,
had right to the disposition and infeftment of the said lands,
granted to him by his father, which were never redeemed ; and'
albiet Grace Greden, the sister, by her service, had right to
the superiority, because John was only infeft base, yet the
property belonged to John, and the pursuer as in his place. |
Here’s a simplified explanation of what seems to be happening:
1.
Initial Transfer (Dispossession): John Greden of Earneslaw transfers (or
"dispones") lands to his son, John Greden (the younger), with conditions
that the lands could be reclaimed upon the payment of 20 merks. However,
this transfer was not fully formalized or recorded ("sasine never
registrated").
2. Heirship Shift: The younger John dies before
his father, leaving his sister, Grace Greden, as the sole surviving
child. Grace then becomes the official heir to their father’s estate,
bypassing any formal claim her brother John may have had, as his "infeftment"
(a type of provisional land ownership) did not involve actual
possession.
3. Marriage and Disposition: Grace, through her
marriage contract, transfers (or "dispones") the lands to Mr. James
Douglas, her husband. However, the lands are later subject to legal
claims and are adjudged (claimed by creditors).
4. Legal Dispute:
The creditors, now in possession of the rights to the adjudged lands,
seek a declaration ("declarator") of their legal ownership.
5.
Counter-Claim: Mr. Alexander Douglas contests this, claiming the lands
based on his adjudication from Robert Douglas (a child of Mr. James
Douglas and Grace Greden). He argues that he is the rightful heir to the
lands, standing in place of John Greden (the younger, his uncle), whose
original infeftment was never redeemed. He asserts that John still held
the property rights, even if Grace’s service gave her the "superiority"
(a form of title to the oversight of the land).
This is a highly
technical and layered legal scenario, reflecting the complexities of
inheritance law and land tenure practices.
Based on the information available, the
outcome of the case of Grace and Rachel Douglas v. John Montgomerie,
Hugh Paterson, James More, and Others, was that:
* The House of
Lords ultimately dismissed the appellants' appeal.
* The court
affirmed the decrees that prioritized the rights of the creditors over
the marital property arrangements.
* Essentially, the creditors'
adjudications and financial claims were deemed valid and took precedence
over the life-rent provisions established through the marriage contract.
* As a result, the estate of Earnslaw was to be used to satisfy the
debts owed by James Douglas and his assignees.
In simpler terms,
the creditors won the legal battle. The courts decided that the debts
owed to the creditors had to be paid, and that those debts had priority
over the Douglas family's claims to the land. This decision had
significant implications for property law, establishing a precedent that
creditors' rights are paramount in such disputes.
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