Petition 1766

July 26. 176 6. Unto the R ight Honourable the Lards o f Council and Sessiont O T H E P E T I T I O N O F J O H N Earl o f 2 6. 1 7 1 P E 1 T. I % c • / e Un fV. *"7 H i ^ r*. T H E 1 E m H o T HAT in the action of exhibition ad deliberandum, at the instance of poor Mary and Margaret Murrays, against the petitioner, Lord Gardenston Ordinary was plea- sed, upon the 4th of February last, to pronounce the following interlocutor. " Having considered the condescend- ence for the pursuers, answers for the Earl of Breadalbane, and replies for the pursuers, finds, That the defender has not produced sufficient to exclude; and that he must take a day to depone in the exhibition.” And, on the 15th current, upon advising representation for the petitioner, with answers thereto, his Lordship pronounced this other interlocutor. “ Finds, That the defender Lord Breadalbane’s production only instructs, that he has the right of an adjudger, which cannot bar the heir-apparent’s right to insist in an exhibition ad deliberandum; therefore adheres to the former interlocutor, and refuses the desir e of the repre­ sentation.” The petitioner must beg leave to submit these interlocutors to your Lordships review; and flatters himself, that, upon consider- ing this case, your Lordships will see cause to alter the same. A The The case is shortly as follows. Previous to the year 1691, James Menzies stood vested hy insestment in the estate of Shian, which, by the more ancient investitures, was devised to heirs-male. In 1691 the said James Menzies executed a tailzie of these lands, in favour of himself, and the heirs of his Own body; whom failing, to the heirs-male to be procreated betwixt Ale­ xander Menzies in Buchanty, and J anet Murray, the tailzier’s niece; whom failing, to his own nearest heirs and assignees whatsoever. And this entail was duly recorded 24th February 1704.In the year 1692, the said James Menzies, in his marriage- contract with Helen Graham, provides his estate to the heirs male and female of the marriage; whom failing, to his own nearest lawful heirs and assignees whatsoever.O In 1699 the said James Menzies died without issue; and was succeeded in the said estate, first by James Menzies, the eldest son of the said Alexander Menzies in Buchanty, in virtue of the above nomination in the tailzie. This James Menzies lived but for a very short time; and was succeeded by his brother Archi­ bald Menzies, the late Shian, who lived down to the year 1746; and during all that time possessed the estate. Besides the title which the said Archibald Menzies had as heir of the above entail, he acquired also other collateral rights to it, which shall also be shortly stated. Soon after the death of the said James Menzies of Shian in 1699, it appears, that Alexander Murray, a nephew of Shian’s by his sister, and grandfather to these pursuers, set up a claim to this estate in preference to Archibald the heir of entail, founded up­ on the foresaid contract of marriage, entered into by old Shian, after he had executed the above entail. The pretence for this claim was that the entail was virtually altered by the destination in the foresaid contract of marriage, under which the said Ale­ xander Murray claimed, as heir whatsoever of Shian, upon the failure of issue of the marriage; and with this view he obtained himself himself served heir in general to old Shian, in order thereby to carry the right to this estate by the said marriage-contract. Archibald Menzies, the heir of entail, and his friends, in or­ der to avoid any trouble from this claim, were, in the year 1699, induced to enter into a ccmpromise with the said Alexander Murray, and to purchase in his right; as also to purchase in the right of another competitor, who had started up, pretending to be the nearest heir-male of old Shian, and claiming under the old investitures. Accordingly in that year a disposition was ob­ tained from the said Alexander Murray to Captain James Menzies of Connie, a relation of the family, who acted on this occasion as trustee for Archibald. This disposition was execu­ ted at the sight of the said Alexander Murray’s father, and his other friends, who are signing witnesses thereto. It recites a certain sum of money to '‘have been paid by Captain Menzies; and contains a disposition of the estate to him; procuratory of re­ signation, and precept of seisin; an assignation to the writs and evidents, and to the rents for the ensuing crop; and a clause of absolute warrandice. The other disposition, in the same year, obtained by Captain Menzies from William Menzies, the heir-male, is in the same terms. And on both these dispositions the said Captain Menzies was insest, and his seisin recorded in 1700. The said Archibald Menzies having continued in possession of the estate, took an obligation from the said Captain James 1 Menzies his trustee, whereby he became bound to denude him- self of these several rights therein specified in favour of Archi­ bald and his heirs; and for that effect to grant all such rights as should be necessary. Accordingly, of this date, Captain Menzies, by disposition,, conveyed over to Archibald, and his heirs, the said estate of Shian; and asigned to him the whole writs and evidents; and particularly the above-mentioned dispositions to him by the heirs male and of line, with all that had followed thereon in his fa- vour. ‘ The said Archibald Menzies, that no room for after challenge might remain, did also, of this date, obtain from John Murray, eldest son of the foresaid Alexander Murray, and father of these* pursuers, a corroborative disposition of the said estate; which bears to be for onerous causes, and likewise contains absolute war­ randice; and, upon the precept of seisin in this disposition, the said Archibald Menzies was insest. Upon these titles, all united in Archibald’s person, he posses- sed the estate in question till his death in the year 1746. In order still further to strengthen Archibald Menzies’s title and possession of this estate, and to relieve him from the di- stress in which his affairs were then involved, he, of this date, entered into a contract with the late Earl of Breadalbane, to whom he had lain under the greatest obligations for the constant and effectual support he had all along given him, and who was then creditor upon his estate to a very great extent, not only by personal debts due to him, but also by the arrears, of the old Lady Shian’s jointure of 1200 merks, the right to which the Earl had purchased a great many years before. This contract, after narrating the Lady Shian’s right to her jointure, and the conveyance thereof to the Earl, recites in substance, “ That notwithstanding the Lady’s annuity was resting since Whit- sunday 1707 to Whitsunday 1722, amounting to 18,000 merks, and would still fall due to the Earl during her lifetime; and that if the bygones, and what should thereafter fall due, were to be exacted, (as in law it might), the same would ex- haust the whole estate,; yet nevertheless, for the love and favour which his Lordship had to the said Archibald Men­ zies, and the heirs male of his bodv, the said Earl, at the— J special desire and request of the said Archibald, and he for himself, and both of them for their respective interests, con- tracted and agreed, viz. That the Earl should lead an adju­ dication against: Shian’s estate, not only for the debts then due, but also for the current and subsequent annuities, as the same should fall due during the Lady’s lifetime; and should “ convey convey over the same, with all title or interest to be acquired thereby to the property of the lands and others adjudged, to the said Archibald Menzies and his heirs-male; which fa il­ ing, to return to the said Earl and his heirs male and of tail­ zie. It is further agreed, T hat the said Archibald Menzies, and his heirs-male, notwithstanding these great debts due to the Earl, should continue to possess the estate; that Archi­ bald and his heirs-male should have the power of burthening the same to the extent of 20,000 merks; and that he and his said heirs should have power to provide suitably their wives and daughters: and, on the other hand, the said Archibald Menzies becomes bound to renounce and discharge a wadset: of a small part of the Earl’s estate, which had been wadset to a predecessor of Shian’s for the sum of 8750 merks; and to pay the Earl the sum of L. 4966: 1 3: 4, being the a- mount of two separate debts due by him to the Earl, at Whitsunday then next. He further became bound to insest himself, and make resignation of his hai ll lands and estate in the terms and under the conditions above expressed; and to insert a clause in the said resignation, obliging him and his foresaids to bruik and enjoy the estate under these titles, and no other.” r ' By this contract, which Shian ratified the following year, after his majority, it is evident, that the Earl made very great and valuable concesions, and gave up to Shian all the benefit of the right he had acquired from the liferentrix, by which he could have swallow- ed up the estate, and thereby enabled Shian to maintain him- self in the possession thereof: and for this the Earl had no other recompence than the eventual chance of succession to the estate, failing heirs male of Shian s body; which, as he was at that time a young man, and very likely to have children, was ex­ tremely remote and precarious. Shian’s straitened circumstances having disabled him from making payment to the Earl of the sums stipulated to be paid by the above contract, it would seem, that what the Earl had B thereby thereby become bound in, had likewise been delayed to be per­ formed so soon as had been resolved on; and as there was no time limited by the contract, within which these things beho­ ved to be done, nor any irritancy adjected, the postponing them may perhaps have been thought the less material at that time. The contract, however, was in part carried into execution and the adjudication upon these great debts which remained in the E arl’s person was afterwards led; to that in fact the Earl of Breadalbane, in virtue of the obligation and conveyance contain­ ed in this contract, and the rights in his own person, acquired an undoubted title to this estate, upon the failure of Shian and his heirs-male. After executing this contract Shian married; but had no issue. However, he contracted considerable debts, to the extent of upwards of 20,000 merks, the sum with which he had re- served power to burthen the estate. After Shian' s death the succession opened to the Earl in vir­ tue of the above clause of return. He remained also creditor* 4.upon the estate in virtue of the foresaid annuities, to which he had right, and which at that time, from the liferentrix having (continued still in life, amounted to upwards of 90,000 merks of neat principal, besides the annuities thereafter to fall due- and which actually subsi sted for seven or eight years longer. He w as further creditor upon the estate in virtue of two "adjudica­ tions against the same, which had been purchased in from Sir Robert Menzies, on which upwards of 12,000 merks was due- so that the debts in his person were all together more than dou­ ble the value of the estate. The Earl made payment to Shian’s creditors of above 22 000 merks, in the proportions settled by Mr Ferguson, (now Lord Pitfour), to whom the matter was referred; and obtained 3a assignation and conveyance of these debts from the creditors. At the same time, in order to constitute fully the amount of his debts against this estate, he led an adjudication against the same, in the year 1749, for a sum upwards of 50,000 merks and and in this process John Murray, the brother of these pursuers as heir of line of old Shian, and one James Menzies as his heir-male, were charged to enter heirs to their predecessors in this estate, and called as defenders. In all these steps the Earl of Breadalbane was guided by the advice of the most eminent counsel of this country; and it does not, with submision, seem easy to conceive what further could have been done in order to secure an ample and clear' title to this estate. If the voluntary and onerous deeds of parties in the right and possessio n of the estate, and conveyances even from every pretender to it; if unexceptionable legal diligence for just debts beyond the value of the subject, the acquiescence of those who had an interest to challenge, and undisturbed possesi o n for upwards o f six ty years by the Earl and his authors, can insure a right; all these occur in the present case. The petitioner therefore, had flattered himself, that by pro- duction of the titles above referred to, he had shown sufficient rights to exclude the pursuer in this action, and to convince the Lord O rd inary, tha t their view in this vexatious process; which costs them nothing, can only be, to try if they can force from him a further sum than what appears to have been already paid, for the sake o f peace, to their father and grandfather. An attempt of this sort, to revive a desperate and antiquated claim, is surely not favourable; and the petitioner hopes he will readily stand excused for not yeilding to it, after the large sums advanced by him and his predecessor for this estate. ' § He shall therefore now proceed to consider shortly the ar­ guments which have been urged for the pursuers, in opposition to the production which he has made. It is indeed somewhat difficult to follow the pursuers who sometimes pretend to claim as heirs of entail to old Shian though, with the same breath, they contend, that the entail was revoked, and at an end; and at other times insist upon their title as heirs whatsoever, under the contract of marriage 1692; by which they say the entail was altered. 1mo,- 1 mo, With regard to the entail 1691, the petitioner appre­ hends, that it cannot just ly be considered as having been altered or revoked by the destination contained in the posterior contract of marriage in 1692. The virtual revocation of the entail is inferred by the pur- suers, from this, that in the contract of mariage the heirs and assignees whatsoever of old Shian are called, upon failure of the heirs of the marriage; and the heirs male of Alexander Men- zies in Buchanty, and the other substitution contained in the entail, are omitted; and therefore the detonation is varied. That your Lordships may be the better enabled to judge of this matter, the clauses of detonation in both deeds shall be fully transcribed. By the entail the said James Menzies of Shian, upon a nar­ rative, that he was desirous, and fully resolved, failing heirs of his own body, to settle and provide his whole lands and est a te in favour of his heirs of tailzie after mentioned; therefore he becomes bound to resign the same, and accordingly grants pro- curatory of resignation, “ in favour, and for new insestment of the same, to be made, given, and granted, to myself, and the heirs whatsoever, gotten or to be gotten, of my own body; whilk failing, to the heirs-male gotten or to be gotten betwixt Alexander Menzies in Buchanty and Janet Murray, his present spouse; whilk failing, to any person whom I shall nominate and design in a paper apart, at any time hereafter, during my lifetime, et etiam in articulo mortis, and the heirs-male of that person’s body; whilk all failing, to my own nearest and lawful heirs and assignees whatsoever.’' This deed contains a power to contract debt, to alter, and to sell the whole or any part of the lands disponed; and a clause dispensing with the not delivery, and declaring, for him, his heirs of line, and all others his heirs and successors whatsoever, that the same should be valid and effectual against his said heirs, although the same should remain in his custody, and no insestment insestment or resignation should actually follow thereupon before his decease. In the marriage-contract with Helen Graham, daughter of Graham of Gorthy, which was entered into about six months after the entail was executed, the said James Menzies, in con­ templation of the marriage, and for the tocher after specified, be­ came bound, “ to insest and seise himself, and the heirs-male lawfully to be procreated of the said marriage betwixt him and the said Helen Graham; which tailing, the heirs male to be procreate of his own body of any other lawful marriage; which failing, the heirs-female, without division, to be pro­ create betwixt him and the said Helen Graham; which also failing, his own nearest lawful heirs and assignees whatsoever, in all and haill his lands and estate,” &c. In considering the import of these deeds, it is necessary to at­ tend to what appears to have been the views and intention of Shian at the time of executing them. By the entail he had it plainly in view to make a solemn and deliberate settlement of his estate, regulating the different series of heirs whom he meant to prefer to his succession; and anxiously provides, that this deed, though not delivered, or insestment taken upon it, but found lying by him at his decease, should be valid and effectual, against his heirs of line, and all others, in favour of the particu­ lar heirs therein mentioned. W here such appears to have been the intention of a settlement of succession, deliberately made, and anxiously carried through the several channels in which it is meant to flow, the law will not easily presume, that an alte­ ration of such settlement could be intended; unless it shall appear, by clear and unambiguous words, contained in some new deed for that express purpose, that the maker of such entail had truly altered his views, and preferred a new plan of succession to that which he had before devised. And this preemption will still less take place, or be inferred from a deed which can admit of another construction, and which appears to have been executed by the defunct apparently with a quite different view from that C of %-4 k of making the alteration in question. When a person executes ' a deed with one particular view, and no other, such deed will not, without the clearest words, be constructed so as to have a stronger effec t than intended; and far less to rescind an an­ xious settlement, establishing the future course of his succes- sion, which it does not appear he had any intention to alter. By the destination in the contract of marriage, it is obvious, that Shian's intention was to provide the children of the mar­ riage, and no other. The clause itself in the contract, as before recited, expressly bears the destination to have been made, " in contemplation of the marriage, and for the tocher after spe- cified.” This was the sole inductive cause of the new dest i- nation; and therefore all that can justly be supposed to have been in view thereby, was, to secure the issue of the marriage who alone could be creditors under that contract. The general termination to heirs and assignees whatsoever, thrown into the end of the clause as matter of common style, cannot be constructed as a repeal of the former settlement, which he had so recently and solemnly made; and the rational construction seems to be, that by calling his heirs whatsoever, in this case, after the is- sue of the marriage, the heirs of entail were meant, when that- entail is not otherwise expressly altered. In the contract, non a- gebatur to do any thing further than to provide for the issue of the marriage; and it seems indeed, with submission, absurd to suppose, that he intended, by implication, totally to alter his en­ tail in order to bring in his heirs of line, whom he had before anxiously excluded. These general words, heirs and assignees whatsoever, in the last termination, by the construction of law, are held to import the heirs named in the former investitures or settlement of an estate. And the reason seems to be, that heirs and assignees whats oever, in the common meaning of the words, apply to all the granter's heirs and assignees whom he had called by any deed, whether prior or posterior. For, as Lord Stair expresses it, tit. Heirs, par. 12. “ Though heirs whatsoever do ordinarily signify heirs * of of line, who are heirs general, and take place 'when the right of no special heir appeareth; yet the adequate signification thereof is not heirs general, but heirs generally, whether of line, male, tailzie, or provision. Where, t herefore, a sub- ject is settled upon a particular series of heirs, and the heirs of line are purposely excluded from the succession, this general de- stination of heirs whatsoever, in a subsequent deed, will not be sufficient to call back the succession to the defunct 's heirs of line from those heirs or assignees whom he had formerly deliberate­ ly preferred to them. It is considered as an ordinary clause of style, which generally closes every destination, and which, from the presumed intention of the granter, applies, in the first place, to the heirs or assignees specially named by him in any former settlement; or, 'where none such appears, to the heirs of line, to whom the law devolves the succession in case no particular desti­ nation has been made. The interpretation here contended for, is founded in reason, and in sound principles; and is explained by our latest writer on the law of Scotland, with his usual ac­ curacy and precision: Though by the general term of heir is understood, in the common case, the heir whom the law points out; yet where there has been an antecedent destina­ tion of a subject, limiting the succession to a certain order of heirs, the general word heir, in all the posterior settlements, either of that subject, or of any other intimately connected with it, dignifies, in dubio, not the legal heir, but the heir of the investiture.” Erskine, p. 368. A variety of cases has occurred, in which your Lordships have decided agreeably to what is here pleaded; a few of which shall just be mentioned. Mr Edgar observes a cafe, 31st July 1725, betwixt Lady Foveran and Lady Skene, concerning the estate of Carrolstone, which had been purchased bv Major Shene their father, and the disposition taken, by him to his heirs and assignees whatsoever. Thereafter he made a tailzie in favour of the Lady Skene, his eldest daughter, and the heirs male of her body, excluding the Lady Foveran, his other daughter and heir- her portioner, and assigned the procuratory in his author's dis- position to the heirs of entail. But having afterwards occasion t o expede a charter under the great seal, he took up his au­ thor’s procuratory, which he had thus assigned, and resign ed up- on it; and took the charter in favour of himself, his heirs and assignees whatsoever. This was pled by Lady Foveran to be a direct recalling of the entail, and of the procuratories he had thereby assigned to those heirs, and using the same to vest the real right of the lands in himself, descendible, not to the heirs of entail, but to his heirs whatsoever, or heirs of line. Your Lord- sh ips, however, found, that the Major’s expeding this charter and insestment in favour of heirs or assignees whatsoever did not import a revocation or alteration of the tailzie, because this a ct of the Major’s could be imputed t o another motive, viz. That he wanted to complete his title to his estate, and the heirs and assignees whatfoever could apply to those named in the en­ tail; and no act which can admit of another construction is to be interpreted, without the clearest evidence of a direct intention so as to overturn a deliberate settlement, formerly made by a proprietor, with respec t to his succesion. Upon the same principles your Lordships found, 3d July 1735, Monro against Monro’s, That a bond which had been conceived secluding executors, having been asigned to a trustee under backbond to retrocess the cedent, his heirs and assignees this did not alter the destination in the original bond, or render it moveable; but that it remained still heritable as before Aga in, in th e ca se between the Duke of Hamilton, and the Earl of Selkirk, 8th January 1740: Charles Earl of Selkirk ha­ ving been insest in the lands of Balgray, under a destination to heirs-male, acquired the property of these lands, and took the disposition from his vassal to his heirs as s i gnees whatsoever • up on which the Duke of Hamilton claimed the succesion to these lands as heir whatsoevr to his uncle Earl Charles; but your Lordships found the property thereof descended to John Earl of Sel k irk, the heir of the investiure o f the suprioy.And this de­ cree, cree, upon an appeal, was affirmed. This and feveral other cases are marked in the Dictionary, title Succession, p.401.; where it was found, That destinations to heirs whatsoever are constructed to be to the heirs named by former settlements. The cafe of Wygateshaw is also recent and well known to your Lordships. There the precise case now under considera- tion was determined; and it was found, t hat a prior settlement of an estate on the heirs specially named therein, was not altered by a posterior contract of marriage, providing the estate to the heirs of the marriage; which failing, to heirs assignees whatsoever of the then proprietor; and that by heirs whatsoever the heirs named in the former settlement were to be understood. Upon these grounds the petitioner submits it to your Lord­ ships, that neither from the presumed intention of Shian, nor by the established construction of law, can the destination in this contract of marriage be held to import an alteration of the entail 1691. If therefore the entail remained good, the right of the late Shian, in virtue thereof, was clearly preferable to that of the heirs of line claiming under the contract. And accordingly your Lordships will have observed, that their claim thereon was early given up, and has now been deserted for upwards of threescore years; during the greatest part of which time Shian possessed this estate as the heir clearly preferable under the subsisting en­ tail: and as this entail contains no prohibitive or irritant clauses, which could prevent the late Shian from selling or disposing of the estate; as he has, by the above contract, conveyed over his full right thereto in favour of the petitioner; who has also, for great and just debts, adjudged all title or interest he had therein, and likewise obtained conveyances of the adjudications led by the whole of Shian’s creditors; and as the whole of these adjudica­ tions have been regularly led, upon charges to enter heir against both the heirs male and of line, and who were also the heirs of entail in this estate existing at the time; the claim of these pur- suers, either as heirs under the entail, or under the contract of marriage, is thus clearly cut off. D But, But, in the second place, supposing, though not admitting, that the pursuers could properly be considered as heirs under the contract of marriage, their claim, even in this view, is also cut off by the deeds executed by their grandfather Alexander Mur­ ray in 1699, and by their father John Murray in 1727, in fa­ vour of the late Shian, to whom they conveyed their right. In answer to this, the pursuers contend, That Alexander Murray’s general service was inept, and could not carry the right to the contract of marriage, which being to a particular series of heirs, could only be properly taken up by a service as heir of provision. T he petitioner, however, with submission, apprehends, 1mo, That it is clearly a mistake to give the name of heirs of provision to the heirs whatsoever called in the last termination in this con­ tract. There is no provision in the contrail to any particular se- ries of heirs, other than the heirs of the marriage, whose interest and succession was the only thing in view: And the subsequent clause thrown in at the end, with regard to the heirs whatsoever, is no more than a common clause of style, by which it never could be meant to constitute them heirs under a particular pro­ vision. They were not in obligatione, as our lawyers express it; and therefore had no occasion to be cognosced heirs of provision to a deed in which they were only mentioned designative, under a general description. But, 2do, The personal right in the con­ tract of marriage was fully and properly carried by the said A- lexander Murray’s general service as heir of line; because both characters of heir of line and heir of provision did, at the same time, coincide in his person. Indeed, the provision in his fa­ vour was singly under the designation of heir ivhatsover; and therefore was fully veiled by his service in that character. So it was expressly decided in a case observed by Forbes, 22d January 1706; where it was found, That a general retour, as heir of line, carried right to a provision in a contract of marriage, even in fa­ vour of heirs-male, both characters coinciding in the same per­ son. And in another case, also observed by Forbes, 13th No­ vember vember 1712, E arl of Dalhousie contra Lord Hawlie, the court found, That where the investitures of an estate stood in favour of heirs-male, a special service by the eldest son of the last de- funct, as legitmus e t propinquior haers, was not to be considered as the same with a service as heir of line, but equivalent to a service as heir male: for legitimus et propinquior haeres is a ge­ neral designation, applicable to all heirs, and falls to be limited secundum subjectam materiam, that is, in terms of the invest i ture; especially where the person serving has clearly both characters in his person. It is evident that Alexander Murray’s intention, by this gene­ ral service as heir of line, could only be to take up this subject, which was devised to heirs whatsoever. The service proves that he was, and that no other could then be heir of line, or heir whatsoever, to his uncle James Menzies; and consequently that he was intitled to every subject devised or descendible to such heir. There was no other subject or right which he could have in view to take by such service; and as the character of heir of provision, under the contract of marriage, did also then apply to him, and to no other, it is plain to a demonstration, that he could never mean, by this s ervice, to assume one of these cha­ racters, and reject the other, which might have subjected him universallv to his predecessor’s debts, without giving him the be­ nefit of the subject that was provided to him in that capacity. And accordingly, in the narrative of the disposition, by which he conveyed over his right to Captain Menzies, the late Shian’s trustee, h e expressly describes himself " only lawful son of Ro­ bert Murray, and Christian Merzies, sister-german of James Menzies of Shian; and thereby having the only sole and un- undoubted right to the lands, &c. which belonged to him, as nearest and lawful heir to him.” And it is remarkable, that in the assignation to the writs and evidents contained in this disposition, he expressly assigns this contract of marriage of old Shian with Helen Graham, to which only he could "have H 2 right right on the supposition of his being the heir whatsoever called by that contract. If therefore the right under this contract was properly car­ ried by this general service, it was sufficient to validate the said conveyance by Alexander Murray in favour of Captain Men­ zies. the trustee for Archibald of Shian: and so far as the par­ tners pretend to connect their title in this action through the said A- lexander Murray their grandfather, they are excluded by the deeds produced in process, viz. the foresaid general service of the said Alexander Murray; the disposition by him to Captain Men- zies in 1699, upon which insestment followed in 1700, and which, by the obligation in 1709, and by the disposition in 1721, were fully conveyed over and vested in the person of Ar­ chibald Menzies, the late Shian, from whom the petitioner de­ rived right by the contract before set forth; and by the adjudica- tions led by him, or now in his person. 2dly, The pursuers are also excluded by the deed of their father John Murray, who as before mentioned, conveyed over his right or claim in 1727 to the said Archibald Menzies, late of Shian. Both these disposi- tions by their father and grandfather bear expressly the receipt of a certain sum of money as the cause for granting thereof. So that if there ever was any just right in these heirs of line, they have fairly sold and transferred the same for themselves and their heirs, whom they have likewise bound by the absolute warran­ dice contained in these deeds, and thereby cut the branch on which only these pursuers could have stood in order to have reached at this succession. 3tio, The petitioner’s title to this estate seems clearly secured to him by the positive prescription, upwards of sixty years pos- session having now followed, without interruption, since the date of the said insestment in the year 1700. in f avour of Cap- tain Menzies the late Shian’s trustee. The disposition from Alexander Murray to Captain Menzies, on which this insest ment proceeded, with all that had followed thereon, was con­ veyed over to the late Shian, by Captain Menzies, in manner a- bove mentioned; and Shian all along continued in possession o f the the estate, from the date of this insestment in favour of his trustee, till the time of his own death in 1746. After his de- cease, every right which had been in his person, or which was competent to be taken up by the then apparent heirs male and of line in this estate, was adjudged from them; and these ad­ judications are all now in the person of the petitioner, who has also continued in possession of the estate ever since the late Shian's death. And lastly,To crown all, there has been produced for the petitioner, the foresaid adjudications led against this estate, of which the legals are long ago expired, and which are led for sums justly due; the amount of which do now exceed more than double the value of the subject in question. On all and each of these grounds, the petitioner submits it to your Lordships, that he has here produced titles much more than sufficient to exclude these pursuers; and that therefore, though he has no reason to be in any shape afraid of producing or giving inspection of every other paper relative to this estate, which is in his possession; yet there is no reason why he should be obliged to throw open his charter-chest to these pursuers, who can have no further occasion for insisting in this action ad deli­ berandum. May it therefore please your Lordships, to review and alter the foresaid interlocutors of the Lord Ordinary, and to find, That the defender has already produced s ufficient titles totally to ex­ clude these pursuers, and to maintain him in the quiet pos- session of this es tate. According to justice, &c. ✓ GEO. COKBURNE.