Scottish Court of Session Decisions

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* “This case is not altogether without difficulty. It was admitted at the debate that the defender is illegitimate, and must be regarded, therefore, as a stranger to the family of his alleged father; and it was also admitted, and appears from the documents produced, that the restriction in question was engrossed in the title made up by Joan Kellie, the defender's author, as one of the heirs portioners of the granter. Nothing, therefore, can now be founded upon any different assumption of those circumstances.

“But still there seems enough in the case of the defender to call for a judgment in his favour. The considerations which have chiefly weighed with the Lord Ordinary are the following:—

“I. The dispositive clause of the deed conveys the different tenements belonging to the granter, (among which the girnels in question are the very first enumerated,) to ‘Janet Higgins in liferent, and to James Kellie, his heirs and assignees in fee,’ and the procuratory of resignation, and precept of sasine, are in like manner in favour of ‘the said Janet Higgins, and the said James Kellie, and his foresaids, for their respective rights of liferent and fee;’ while, if effect is given to the subsequent clause of restriction, in the way contended for by the pursuer, James Kellie could have no assignees in the subjects first named in the dispositive clause. The clause of restriction therefore appears, in this sense of it, to be at variance with the dispositive clause; and it is a settled rule of construction, that, wherever any such discrepancy occurs, it is the dispositive clause which must prevail.

“II. The restriction itself appears to be against selling or burdening with debt only, and not against a gratuitous alteration of the order of succession; and, more-over, it is quite certain, that, not being fenced with proper irritant and resolutive clauses, it would be utterly inoperative against a purchaser or creditor; and it would certainly be a strong measure to convert such an incompetent and ineffectual attempt to prevent sale or adjudication into a valid bar to gratuitous alienations not apparently in the contemplation of the maker.

“III. Though mere prohibitions have been sometimes held to give proper substitutes a right to reduce gratuitous alienations to their prejudice, upon the ground of their jus crediti, and on the principle of the Act 1621, there is plainly no room for applying this principle to a case like the present, where there are no proper substitutes whatever, or persons of any description vested with a jus crediti; the only destination of the fee being, as already said, to James Kellie and his heirs and assignees generally. In the case of Ure against the Earl of Crawford, referred to by the pursuer, at the debate, (17th January, 1756, Mor. 4315,) there was, at all events, a class of proper substitutes, though the decision in other respects stands opposed to later authorities,

“IV. The principle last mentioned takes a definite and more authoritative shape in its application to the present case from the admitted fact, that the succession had devolved to, and been divided among four heirs portioners, before the alleged violation of the restriction took place. But according to the clear principle of the noted case of Cassills of Culzean, 27th February, 1760, recognised in a great variety of subsequent decisions, and especially in that of Sprot against Sprot, 22d May, 1828, (6 Shaw, 833,) all limitations of this kind, though much more regularly imposed in the first instance than here, are held to fly off, and to leave the fee unlimited, whenever such a dereliction or splitting of the property occurs; and that upon the plain ground of the main object of imposing them being no longer attainable, and of their being no individuals in existence specially entitled to the character of substitutes, or capable of sustaining a jus crediti in relation to the property.”