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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> William Murray, Esq. of Touchadam and Pitlochie v. Miss Anne Murray and others, Heirs of Entail of the Lands of Cockspow [1844] UKHL 3_Bell_100 (4 September 1844) URL: http://www.bailii.org/uk/cases/UKHL/1844/3_Bell_100.html Cite as: [1844] UKHL 3_Bell_100 |
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Page: 100↓
(1844) 3 Bell 100
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1844.
No. 6
[Heard
Subject_Tailzie. —
Where selling, alienating, and disponing are prohibited, the irritant and resolutive clauses, though using the terms “alienating” and “disponing,” but dropping that of selling, will be effectual to prevent sales.
Subject_Ibid. —
The meaning of the word “deeds,” where used referentially, is to be construed by the words to which it refers, and construed in this manner was held to mean sales.
Subject_Ibid. —
A general prohibition to do a certain act is not limited by a subsequent description of one of the consequences of the act, but will include all the consequences.
The appellant was heir of entail in possession of the lands of Pitlochie, under an entail bearing date the 29th of May, 1727, and he was also proprietor in fee-simple of the lands of Cockspow.
In 1817 he obtained an Act of Parliament, authorising him to sell the lands of Pitlochie upon his entailing the lands of Cockspow, by a deed “containing all clauses needful in favour of the heirs called to the succession by the aforesaid entail of the estate of Pitlochie, and according to the same series and substitution, and under all the provisions and conditions, declarations and clauses prohibitory, irritant, and resolutive, that are contained in the said deed of entail; and which entail shall bind the institute as well as the substitutes, so that the
Page: 101↓
In compliance with the terms of this Act, the appellant, on the 3rd day of March, 1825, executed an entail of the lands of Cockspow, by a deed which contained the following prohibitory, irritant, and resolutive clauses, which, in their expressions, were the same mutatis mutandis with the like clauses in the entail of Pitlochie of 1727. “And sicklike, it is hereby expressly provided and declared, and shall be so declared by the infeftments to follow hereupon, and by the services, retours, precepts, and instruments of sasine, of me or the succeeding heirs of tailzie in all time coming, that it shall be noways leisome nor lawful to, nor in the power of me, or the heirs-male or female of my body, nor of the other heirs of tailzie above written, nor the descendants of their bodies, to sell, alienate, or dispone the lands and others before rehearsed, or any part or portion thereof, either irredeemably, or under reversion, or to grant wadsets or infeftments of annual rent furth of the same, or to burden the said lands with any servitude or other burdens whatsoever; nor to set nor grant any tacks of the same above the space of ten years, and not under the ordinary rent; neither shall it be lawful to them, nor in the power of them, or any of them, to contract any debt whatsoever, nor to commit any crime of whatsoever kind, and particularly the crime of treason, or any species of it, or to do or commit any other fact or deed, civil or criminal, whereby the lands and others before mentioned, or any part thereof, may be apprised or adjudged, or any other manner of way evicted, forfeited, or become caduciary, or the order of succession hereby set down, anywise altered, innovate or infringed, in prejudice of this present tailzie, or of these who shall succeed in virtue thereof; and if I, or any of the heirs of tailzie, of whatsoever sex, that
Page: 102↓
A subsequent clause declared that if the granter, or any of the heirs, should omit to obtain themselves entered in the lands within a specified time, “I and they shall not only forfeit, amit, and tyne my and their right to, and interest in the lands and others before written, but also to the maills, duties, rents
Page: 103↓
Another clause was in these terms:
“And likewise it is hereby expressly provided and declared, that if I, or any of the heirs of tailzie, or my or their descendants, shall be owing, or shall have contracted any debt, or committed any crime or delict, or shall happen to become liable for any debts for myself or themselves, or as representing any others before my or their succession to the said lands, and others before written, or for any other cause whatsoever. In that case, these debts, deeds, and crimes shall be void and null in so far as concerns the lands and others before rehearsed, nor shall the same, nor the mails and duties thereof, be affectable therewith any manner of way, neither shall it be leisome nor lawful to me or any of the heirs of tailzie in time coming, in the case before mentioned, to assign the mails and duties of the said lands for payment of any such debts that I or they shall happen to be owing or become liable to, before my or their succession, nor shall the said maills and duties, or any part thereof, in that case be affectable by my or their creditors, nor fall under my or their single or liferent escheat, in prejudice of the said heirs, their wives and children, and others that shall succeed to me or them by virtue hereof, and I and the said heirs shall be holden to pay the same, and to free myself and themselves from all debts and deeds whereunto I or they might be made liable.”
The appellant, conceiving that the resolutive and irritant clauses were not effectual against sales, executed a missive of sale to John Murray, and then brought an action against the substitute heirs of entail, to have it declared that he had full powers to sell the lands of Cockspow; that the missive of sale constituted a good and valid sale, and binding on the said pursuer, who is bound and entitled to implement the same, and that the said
Page: 104↓
At the same time John Murray, the purchaser, brought an adjudication in implement of the missives of sale. The defenders pleaded in answer to the action by the appellant,—
“I. The entail of Cockspow contains an effectual prohibition against the heir in possession selling the estate, and consequently the pursuer, in entering into the missive of sale libelled on, acted beyond his powers, and in contravention of the entail.
II. At all events, the pursuer is not entitled to have it declared against the defenders, that he has right to grant dispositions of the entailed lands.
III. The pursuer is barred, personali exceptione, from violating the prohibitions of the deed of entail executed by himself.
Page: 105↓
IV. Even if the sale of the lands were found good, the pursuer is bound to reinvest the price for the benefit of the substitute heirs.”
The Lord Ordinary ( Cunninghame), after argument before him, appointed the parties to put in cases, and after considering these papers, his Lordship made avizandum with the cause to the Inner House, accompanying his interlocutor with a full note, expressing doubts upon the question raised. The Inner House ordered the opinions of the other Judges to be taken; that opinion was unanimous, and was delivered by Lord Moncrieff in the following terms:—
The object of this action is to have it found and declared, that the pursuer has power to make an effectual sale of the lands of Cockspow and others, in which he stands invested under a disposition and deed of entail executed by himself, in obedience to the express provisions of an Act of Parliament of the 57th Geo. III. The summons sets forth, by a recital of the terms of that entail, that the pursuer had succeeded to the lands of Pitlochie and others, as an heir substitute of entail, under a deed executed by Patrick Murray in 1727; and that, having become proprietor of the lands of Cockspow and others in fee-simple, he had obtained an Act of Parliament for enabling him to sell the said lands of Pitlochie and others, at the sight of this Court, on condition that the price should be applied in the purchase of the lands of Cockspow and others, and that these lands should be entailed on the same series of heirs, he being bound to execute, at the sight of the Court, a deed of entail, “containing all clauses needful, in favour of the heirs called to the succession by the aforesaid entail of the estate of Pitlochie, and according to the same series and substitution, and under all the provisions and conditions, declarations, and clauses prohibitory, irritant, and resolutive, that are contained in the said deed of entail, and which entail shall bind the institute as well as the substitutes,” &c. It is further set forth, that the sale took
Page: 106↓
It certainly presents a remarkable peculiarity in this case, that the pursuer, after having found it necessary, with the consent, it may be presumed, of the substitute heirs of entail, to obtain an Act of Parliament for enabling him to sell the lands of Pitlochie, which he held under an entail said to have contained precisely the same clauses, which, in terms of that Act, were made to constitute the conditions of the entail of Cockspow, should now bring an action to have it found by this Court, that notwithstanding those clauses, he has power to sell the lands of Cockspow absolutely and unconditionally. The meaning of this, however, is plain enough. It must be supposed, either that the pursuer has now discovered some essential defect in the entail, which was not observed while he held the lands of Pitlochie, or otherwise that the law and the principle of judgment in such cases have been changed, since the time when the Act of Parliament was obtained, and the new entail was executed under the authority of this Court. Whatever may have been the decisions pronounced in particular cases, and however it may be thought that there is difficulty in this as in other branches of law, in reconciling all the decisions, I cannot assent to the proposition, that the law, or the principle of judgment in the application of it, has undergone any change. But it is a possible thing, that the discussion of other cases may have disclosed a
Page: 107↓
It seems to be very clear, on the one hand, that the pursuer can be in no better situation, as the fiar in possession under the entail of Cockspow, than he was as the entailed proprietor of Pitlochie. All the restraining clauses being, as the Act of Parliament required, expressly applied to him as institute, he can have no power which he would not have had as the substitute heir under the entail of Pitlochie; and it is impossible that, by the change of the lands, effected only at his own desire, with the consent of the heirs of entail, and by the force of a statute, all being completed in due form and in compliance with the Act 1685, he can have obtained any advantage against the heirs of entail, which he did not possess before, in regard to the lands of Pitlochie. But, on the other hand, it does not appear to me, that he can be in a worse situation with regard to any question of power, according to the legal import of the entail. For although the Act of Parliament was no doubt applied for and obtained, in the belief that the entail of Pitlochie contained effectual restraining clauses against all sales and alienations, yet, if it should appear that it was not de facto and de jure effectual for that purpose, it must then be held that the pursuer might have sold Pitlochie without asking for any Act of Parliament, and might still have possessed Cockspow in fee-simple. And it does not appear to me, that the mere circumstance of the entail of Cockspow having been necessarily executed by the pursuer himself under the Act of Parliament, can have any effect in the question concerning the legal construction of the entailing clauses as they stand. I do not think, therefore, that the plea last insisted on in the case for the defenders (the 3rd plea in law in the record), could be available against the declaratory conclusion of the summons, if that conclusion should be found to be in itself
Page: 108↓
The question then is, whether this entail is effectual to prevent a sale of the estate. The pursuer takes two points,—1st, That there is a defect in the resolutive clause; and 2nd, That the irritant clause is also insufficient.
1. The objection to the resolutive clause is no new discovery. It is, that whereas the prohibitory clause prohibits the heirs to sell, alienate, or dispone the lands; the resolutive clause, which is combined with the irritant, only declares that the heirs shall forfeit if they “shall do any thing contrary to the said provisions, either by alienating or disponing the lands, &c.,” the word selling not being repeated. If this objection were well-founded, it probably would apply to both the clauses. But as the very point has occurred, and has been decided both by this Court and in the House of Lords, even with reference to a more doubtful case, and as there is yet no decision whatever to the contrary, I am of opinion that the plea cannot be sustained.
It appears to me, that the present case must be ruled by the two judgments in the case of Elliot of Stobbs, the one in 1803, and the other by the House of Lords in 1821; and that it is too late to argue this question as a matter of abstract law. The question in the case of Elliot, May 19, 1803, was identical with the point raised in the present case, with only the important difference, that in the resolutive clause of the Stobbs entail, the word alienate did not occur. The prohibitory clause prohibited the heirs “to sell, annailzie, wadset, dispone, dilapidate, and put away.” The resolutive bore only the words “or who, whether male or female, and I, shall dispone the said lands and estate,” &c. Sir William Elliot had entered into a minute of sale, as the pursuer has done. The purchaser suspended on the ground that Sir William had no power to sell; and Sir William brought a declarator to have it found that the entail was not effectual to prevent a sale. The Court sustained the defences, holding the entail to be good. I
Page: 109↓
The discussion on that entail was renewed in 1813, in relation to the validity of a long lease. This proceeded on the notion that, however the word dispone might be sufficient to cover, it was not equivalent to the term alienate, under which the Court had found in the Queensberry cause that long leases were effectually prohibited. This argument prevailed in this Court at the time. But the case having been appealed, the Lord Chancellor Eldon, on very deliberate consideration, reversed the judgment, and found in terminis, “that, according to the true construction of the deed of entail of the estate, the prohibition to dispone extends to the lease in question, and that the irritant and resolutive clauses do so refer to the specific prohibition to dispone, as to render the same effectual against third parties.” It is impossible not to see, that this judgment was a great deal stronger than the decision in 1803. It had long before been decided in the case of Humbie, that a clause prohibiting to dispone was sufficient as a prohibition against sales; and the judgment in 1803 simply held the same term to be sufficient in the resolutive clause to cover sales. Lord Eldon's judgment, again, in express words declares the irritant and resolutive clauses expressed by the term dispone to be sufficient, by relation to the same term in the prohibitory clause, to secure the entail against third parties. But it was evidently going a step farther, to hold that, under an entail which prohibited to sell, annailzie, wadset, dispone, &c., the term dispone alone in the resolutive clause was sufficient to cover the case of a long lease. Yet there would have been no question there, if the term alienate, as well as dispone, had been in the resolutive clause, as it is in the entail of
Page: 110↓
Holding, therefore, that the answer to the pursuer's objection in the present case follows à fortiori from these decisions; and being farther of opinion, that, even independent of them, the terms of the resolutive clause in the entail of Cockspow are sufficient, I think that this plea on the part of the pursuer must be rejected.
2. The special objection taken to the validity of the irritant clause is of a different nature, and may admit of more doubt. It seems to have been suggested by the late decision in the House of Lords, in the case of Lang against Lang. But, as it appears to me, that the terms employed in the present case, are of a very precise and determinate nature, and that there is an important difference between it and the case of Lang, I am not able to come to the opinion, that the irritant clause is not sufficient to protect the estate and the heirs against a sale or alienation.
After the prohibitory clause, the entail proceeds to provide, that “if I, or any of the heirs of tailzie,” &c. “shall do any thing in the contrary of the said provisions, either by alienating or disponing the lands and others before written, or any part thereof, or contracting debts, either real or personal, or by committing the crime of treason, or any species thereof, or any other crime or delict, or doing any other deed, civil or criminal, the said debts, deeds, crimes, and delicts, shall not only ipso facto become
Page: 111↓
There can be no doubt concerning the obvious meaning of these clauses. But I fully agree in the statement, that, in such a question of construction, the mere intention to be discovered from a comparison of the different clauses of the deed is not sufficient. It is quite unnecessary to go into any detail of the authorities in this matter. I only think it necessary again to observe, that I cannot entertain the idea, that any of the later decisions which have been pronounced in this Court, or in the House of Lords, have made any change on the rule or principle of the law for the construction of such deeds, as being strictissimi juris. The application of the principle to particular cases, is often a matter of great difficulty; and, in reviewing such cases, it may be thought by individual lawyers, that in some of them it has not received full effect, and in others has been carried too far. But the principle itself is fully recognised throughout them all, and in truth has never been disputed in any one of them, though parties may have contended, and Judges may have thought, that it was sometimes strained to excess, and sometimes did not receive the effect due to it. And it appears to me, that any of the late decisions, which are supposed to have altered the principle of judgment, are no more than exemplifications of the application of the principle of strict construction, always acknowledged, according to the view taken of the special case before the Court.
Waving any farther discussion on this subject, let it be observed, that the passage of the entail from which the above excerpts have been made, constitutes one unbroken sentence,
Page: 112↓
Page: 113↓
But it is to be observed, that this declaration of nullity does not terminate the sentence. Other consequences are to follow, which all hang upon the same hypothesis, and are also evidently dependent on the nullity of the deeds. The clause goes on— ‘but also the contraveners, shall not only forfeit’ all right to the estate, but likewise to the rents, &c.; and the lands and mails, &c., “shall ipso facto, from and after the respective deeds of contravention, be devolved on and pertain, &c. to the next heir, free from all debts, deeds, crimes, and delicts, done, contracted,
Page: 114↓
From the peculiar structure, therefore, of the whole clause in this entail, it seems to me to be impossible, on any construction however strict, to hold, that there is not a complete and express irritant clause applying to all deeds of alienation or disposition, wherein sales are necessarily comprehended.
The case which apparently gives the most probable support to the pursuer's argument, is that of Lang v. Lang, as decided in the House of Lords. I am bound to hold that case to have been rightly decided, though the judgment of the Court here was different; and I do so hold it. But there is the most marked difference between it and the present case. The clause is constructed in an entirely different manner from that followed in the entail of Overtown. In general, the safest form for making an effectual irritant or resolutive clause is to rest on a general assumption of any contravention of the conditions or prohibitions before laid down; because, in any special enumeration, there is always a danger of some important article in the prohibitory clause being omitted, which no general words prefixed or added to the enumeration will in that case legally supply. But there is a different danger in the other form. If care be not taken, in the position and terms of the general clause of irritancy, to make it expressly and necessarily apply to all the parts of the prohibitory clause, and to exclude any more limited application, the
Page: 115↓
Whatever opinion shall be formed of the present case, it cannot, in my apprehension, stand on the same ground with that, of Lang. Even if the entailer had here rested on the general words in the beginning of the irritant clause, they are such that it would have been difficult or impossible to confine their application in the same way as the simple words ‘do in the contrary’ were confined in Lang's case. For they are, if I or any heir ‘shall do anything in the contrary of the said provisions’—words which plainly relate to the whole limitations laid down. But the irritant clause itself here contains an enumeration of the cases to which these general terms were expressly meant to apply; and the very first is that of ‘alienating or disponing.’ The declaration of irritancy is express, that if the party shall act ‘ contrary to the provisions, by alienating or disponing,’—in that precise case the consequence declared shall take effect. It is very true, that if the words in which that consequence is
Page: 116↓
In truth, the point as to the effect of the irritant clause in Lang's case could only have become of any importance, if the other point which occurred in that case, as to the want of a substantive clause against altering the order of succession, had been determined differently from the judgment regarding it. When it was decided, that there was no such effectual clause, and consequently that the heir in possession could at once extinguish the interest of all the substitutes, by a gratuitous act of alteration, the effect of the irritant clause ceased to be of any practical consequence. Still the point was solemnly determined; and I have so considered it.
The case of Adam was of the same nature with that of Lang. But it appears to me to have been a stronger case in favour of the judgment; the general words—“all which debts, deeds, and
Page: 117↓
James W. Moncrieff.
We concur in this opinion.
J. H. Forbes.
A. Maconochie.
J. A. Murray.
H. Cockburn.
F. Jeffrey.
In this opinion Lord Cunninghame ultimately concurred; and thereafter, in conformity with it, the Court pronounced the following interlocutor:—
“26th February, 1842.—The Lords having advised these actions, and revised cases for the parties, with the opinions of the consulted Judges, sustain the defences, dismiss the action and supplementary action of declarator, and also the action of adjudication in implement: assoilzie the defenders from the conclusions of the said actions, and decern.”
The appeal was against this interlocutor.
Mr. Burge, Mr. Moir, and Mr. Anderson for the Appellant. —I. The resolutive clause does not apply to sales; the prohibition in the prohibitory clause is against selling, alienating, or disponing; each of these terms must receive a meaning and effect —selling speaks for itself—alienating, if used alone, might perhaps have been sufficient to include selling, but when used along with the word “selling,” it has evidently a sense different from selling, and intended to embrace those methods by which alienation may be accomplished, other than by selling.
[
Page: 118↓
Precisely. In using the three expressions “selling,” “alienating,” and “disponing,” the entail follows the exact terms of the statute, which uses all three as expressive of distinct substantive acts, and not as synonymous designations of the same act. Alienation and disposition relate to deeds of conveyance, by which a right to the lands is given; but an heir selling, though he incur a personal obligation which may be the ground of adjudication, gives neither an alienation nor a disposition; the purchaser gains his entry not by any deed from the seller, but by entry with the superior. If, then, selling, in the language of this entail, as it is obtained from the prohibitory clause, be something different from alienating or disponing, to make the prohibition effectual, selling must be found also in the irritant and resolutive clauses, for in these clauses alienating and disponing are to receive the same limited construction given to them in the prohibitory clause, according to those principles which have been laid down in Speid v. Speid, 5 Sh. 619; Horne v. Rennie, 3 Sh. & Mc. L., 143; Dick v. Drysdale, 16 F. C., 460; Barclay v. Adam, Hume, 877; Lang v. Lang, 1 Mc. L. & Rob., 871. In Hopetown v. Humbie, Mor. 15,505, no doubt it was held that a prohibition against disponing included one against selling, but that judgment never received the sanction of this House, and at all events the case was different from the present in this respect, that there selling did not occur at all, while here it does occur in the prohibitory clause, along with alienating and disponing. In the case of Elliott, 1 Sh. App. 17, it certainly was held that a prohibition to sell occurring along with disponing was fenced by an irritancy of disponing alone; but that decision would not now be consistent with those strict rules of construction which have since been laid down in Speid v. Speid, and Lang v. Lang.
II. The irritant clause is also defective, inasmuch as it does not apply to sales. It does not in terms apply to them, and the only word which constructively can by possibility have such an
Page: 119↓
The Lord Advocate and Mr. Moncrieff, for the Respondents, cited Hopetown v. Humbie, Mor. 15,505; Elliott, Sh. App. 97; Brown v. Dalhousie, F. C.; Queensberry v. Wemyss, 1 Bligh, 406; Adam v. Farquharson, 2 D. B. & M.; Lumsden v. Lumsden, 2 Bell, 104; Anstruther v. Anstruther, 2 Bell, 242.
He objects to the resolution and irritant clauses of the entail on three grounds,—1st, that they do not specifically apply to selling, although selling is specifically forbidden in the prohibitory clause ; 2nd, that sale is not comprehended under the word
Page: 120↓
In considering the validity of these objections, I deem it quite unnecessary to discuss the general principles of the law of Scotland respecting entails, which are familiar to your Lordships, and which you very recently had occasion to expound in the cases of Lumsden v. Lumsden, and Anstruther v. Anstruther. I shall therefore at once proceed to deal with the objections, taking them in their order.
First. The first applies both to the resolutive and irritant clauses which are introduced by the words “and if I or any of the heirs of tailzie shall do anything in the contrary of the said provisions, either by alienating or disponing the lands, or contracting debts, or by committing the crime of treason, or doing any other deed civil or criminal,” there having been a prohibition to “to sell, alienate, or dispone the lands.” It is not disputed that if there had been merely a prohibition “to alienate or dispone,” selling would have been included, and the fetters would have been complete; but it is contended that, as there is a specific prohibition against selling, it is not enough that the resolutive and irritant clauses should be directed merely against alienating and disponing.
If selling is to be considered as contemplated by the entailer as a different act from alienating or disponing, I think the objection would be well founded, for where the resolutive and irritant clauses, instead of generally referring to the acts prohibited, enumerate some of them specifically, they must comprehend all; but if, in the prohibitory clause, there is first a specific act expressed, and then a generic word is used so as to be clearly intended to comprehend the specific act, and not merely to express another specific act in addition to the former, I conceive
Page: 121↓
Here, when the words “alienate and dispone” follow the word sell in the prohibitory clause, I think it clear that the entailer intended to use generic words, including an alienation or disposition by selling, and therefore that the resolutive and irritant clauses are directed against selling, being directed against “alienating or disponing.”
So I should have thought, my Lords, had the question been new; but the appellant's counsel admit that the very same objection was urged against the entail of Stobbs, in 1803, and was overruled. As that case was not brought by appeal before this House, we are not absolutely bound by it, but it has stood for law during forty years. As a decision of the Supreme Courts in Scotland, it received great countenance from this House in the Queensberry case, in the year 1821, and, in my humble opinion, it rests on sound principle.
Secondly. The next objection is, that the word “deeds” in the irritant clause does not apply to selling. This word is most flexible, for it may be confined to written instruments, or to feudal delinquencies, or it may extend to all acts enumerated in the prohibitory clause. Here it is a word of reference, and we must ascertain in what sense, according to the grammatical and natural construction of the language employed, it is used. The prohibitory clause forbids the heirs of tailzie “to sell, alienate, or dispone,” or “to do or commit any other fact or deed in prejudice of the present tailzie, or those who shall succeed in virtue thereof,” thereby showing that to sell, alienate, or dispone, was a deed in the contemplation of the entailer. Then he goes on to say, that if the heirs of tailzie should do anything
Page: 122↓
The Tillicoultry case and the others relied upon, proceed upon the principle, that general words of reference which would of themselves be sufficient, may be cut down by subsequent words of imperfect enumeration, showing that, according to the grammatical and natural construction, they were used in a qualified and restrictive sense. In this entail there is nothing to show that the general words relied upon should not have full effect given to them, unless the third objection should prevail, which I now proceed to consider.
Thirdly. It is said that deeds here cannot include sale or alienation, the entailer having declared his object merely to be that the lands should not be burdened in the hands of the heirs of tailzie. We cannot refuse to listen to this objection, although it was not taken in the Court below ; but after mature consideration, I come to the conclusion that it was not urged sooner, because it was felt to be untenable. I know not that the entailer must be taken to express the whole of his object by the clause which he introduces with “so that,” or that he intended to do more than state one consequence of the irritancy. But, at any rate, can it be doubted that by a sale the lands would be affected in prejudice of the succeeding heirs of tailzie and provision? After a written agreement to sell, the purchaser would have a specific remedy to take up his title to the land ; and if there were at once a regular disposition to the purchaser, it is difficult to say that the land would not be affected by the deed which
Page: 123↓
I am not surprised therefore to find the same words in other entails, which have been upheld after strenuous objections on other grounds, although this objection, which might have been taken, was not urged.
Upon the whole, my Lords, I am of opinion, that in this case the appellant has not power to sell the lands of Cockspow; and I humbly move your Lordships, that the interlocutors complained of be affirmed with costs.
It is really in vain to contend that the words used here do not comprehend a sale in the one clause, after the authorities which are set forth in the Stobbs case, which has been acted upon in one or two instances, and which has been highly approved of for the last forty years and upwards. The objection is one upon which at first one might have been disposed to feel a little more doubt; but when one takes the whole structure of the sentence together, I do not think that any doubt whatever remains. “Deed” is a word of flexible import; it is not a word that has always the same meaning. Sometimes it may mean a fact or act—sometimes it may mean a feudal delinquency—sometimes it may mean an instrument—sometimes it may mean an act of service. In this case, according to the judgment which I had certainly formed, and in which I entirely concur with my noble and learned friend upon the authorities relied upon in this case, there is no doubt whatever that it is sufficient to support the view which has been contended for.
Now, my Lords, the last observation which I have to make,
Page: 124↓
Upon these grounds I retain the opinion which I formed upon this case when I first considered it, and I join with my noble and learned friend in holding that the judgment ought to be affirmed.
Page: 125↓
Page: 126↓
I think, therefore, that the resolutive clause includes the act of selling, although alienating and disponing are the only words used.
Upon the irritant clause, the question is, whether sales are included in the declaration of nullity; and keeping in mind that the words “alienate and dispone” include sales, I cannot think that any doubt can exist upon that subject. The “said debt, deeds, crimes, and delicts, and all and every of them,” are declared to be ipso facto null and void, and the question is whether selling, or alienating or disponing, constitute one of these deeds. To ascertain this, the sentence must be traced from its commencement, “and if I or any heir of tailzie, &c., shall do anything contrary to the said provisions.” Then comes the enumeration: “by alienating or disponing,” which includes selling, “or contracting debts, or committing the crime of treason, or doing any other deed, civil or criminal, the said debts, deeds, crimes, and delicts shall not only ipso facto become null and and void, so far as concerns the said lands.” Debts and delicts are specified in terms; the only other matter before enumerated is alienating and disponing, which includes selling. To this, therefore, the word deeds must, in the strict construction of the sentence, be held to refer; there is no ground for holding that these words refer only to what immediately precedes them.
If this be the right construction of this sentence, that is, if the words “debts, deeds, crimes, and delicts” refer to and include all the matters before enumerated, the case of Lang v. Lang has no application to the present, that decision having turned upon the construction put upon the particular frame of the sentence in that case, namely, that the words “and if they do to the contrary” referred to the words which immediately preceded it, and did not include all matters before enumerated, which the words used in this case I think clearly do. The case of Adam was decided upon a similar ground. I therefore concur
Page: 127↓
Ordered and Adjudged, That the petition and appeal be dismissed this House, and that the Interlocutor, so far as therein complained of, be affirmed with costs.
Solicitors: G. and T. W. Webster— Graham, Moncrieff, and Weims, Agents.
