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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> MRS. Jane Carrick and Others v. David Buchanan and Others [1844] UKHL 3_Bell_342 (5 September 1844) URL: http://www.bailii.org/uk/cases/UKHL/1844/3_Bell_342.html Cite as: [1844] UKHL 3_Bell_342 |
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Page: 342↓
(1844) 3 Bell 342
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1844.
No. 11
[Heard
Subject_Tailzie. —
A deed of entail which contained prohibitions embracing acts by the institute by name, and a general irritancy of all acts contracted, granted, or done, in contravention of the prohibitions, without mention of the institute or heirs, followed by a declaration that all debts, deeds, and acts contracted or done in contravention should be ineffectual against “the other heirs of tailzie,” was held effectual to void a deed, altering the order of succession, made by the institute.
Subject_Ibid. —
Held that a gratuitous mortis causa deed, altering the order of succession prescribed by an entail, is void in a question inter hœredes, without regard to the question whether the entail was sufficiently fenced under the Act 1685.
The terms of the deed of entail out of which this case arose, will be found in vol. i., page 368. When the cause returned to the Court of Session, under the remit there reported, that Court ordered cases upon the questions contained in the remit to be laid before the Judges for their opinions. That question was expressed in these terms :—
“Whether, if the irritant clause in the deed of entail should be held defective, as not being directed against the institute, the said deed of entail is otherwise sufficient to exclude or render void the disposition under reduction, on the ground of its being, as alleged by the respondents, a gratuitous deed.”
After reading the cases for the parties, the following opinions were delivered by the Judges:—
“
Page: 343↓
Had this question occurred in the course of any cause in the Court of Session, I would not have been disposed to express, if other Judges did not concur in, the difficulties which I have always entertained on the point, and would have deferred to the weight of the opinions expressed by institutional writers, and incidentally but frequently by so many Judges of great name and authority.
Called upon specially by the House of Lords to report our opinions on the point, I feel that I am bound to state my own view, however reluctantly expressed when in opposition to the authorities I have alluded to. I cannot assent, however, to the statement, that this is a point on which the opinions of lawyers have been uniformly settled. Judges of great authority in the case of Ascog gave a deliberate sanction to the opinion which I entertain, and that opinion is explained in one of the most elaborate judgments which Lord Eldon ever pronounced, which received the deliberate concurrence of Lord Lyndhurst.
In the first place, I am of opinion, that the point has not been fixed by any decisions, so to preclude the determination of it according to sound principles.
The case of Callander I cannot regard as authoritative. It seems to me, according to Fountainhall's report, to support views of the Act 1685 ( e. g. as if an irritant clause alone was effectual against onerous creditors), which undoubtedly cannot be acknowledged. It proceeds on the application of the Act 1621, which, if a sound ground, would, in my opinion, apply against creditors as much as gratuitous disponees. And that
Page: 344↓
The case of Ure v. Crawford has no application. The deed there seems to have been solely a destination. But the institute granted a separate deed binding himself not to grant any deed whereby the lands might be affected. A question was raised as to the meaning of that obligation. The judgment of reduction proceeds on the effect of that obligation granted by the party whose deed was challenged—not on the effect of a tailzie with a prohibitory clause. The points are manifestly different.
The only other case referred to as a decision, is a branch of the Roxburghe cause. The defenders have given no detailed explanation of this branch of the case, and I may be in error regarding it. But after a careful examination of the report, and of all the pleadings in this Court and in the House of
Page: 345↓
Page: 346↓
In the report of this branch of the case in the Court of Session, the point embraced in the remit is not mentioned as having been decided or separately argued. It is true, that in the pleadings in the Court of Session, there is a great deal of general argument as to prohibitions; but in almost every sentence the terms employed are ‘prohibitions and limitations’— ‘prohibitions and restrictions,’ which make the argument as much applicable to an entail with irritant and resolutive clauses, which the Roxburghe entail was, as to a different species of entail. When it went to the House of Lords, there is no reason in support of the judgment founded upon the point which is now said to have been decided. In giving an account of the opinions of the Court, respondent's Appeal Case, p. 13, it is not stated that the Court gave any opinion upon this question. The opinions themselves do not turn on this point. They turn on the question, are the terms of the prohibitory clause sufficient to cover alteration of the order of succession?
The account of the argument on the prohibitory clause on page 15 of Sir J. Innes's case, shows that the discussion turned on the meaning of the clause in which the prohibition against alteration of the order of succession was stated to be found. In the argument upon the meaning of the prohibition, I find that there are quoted some authorities as to the effect of a prohibition, without irritant and resolutive clauses. These, however, are very oddly introduced, because the same argument holds the entail to be complete, with irritant and resolutive clauses: and it was not disputed that the latter applied to one part of the prohibitory clause as much as to another, though there was an argument that neither the prohibition nor the protection
Page: 347↓
_________________ Footnote _________________
* “Excerpt from Letter from Mr. James Campbell to Mr. Goldie, 8th June, 1811 :
“Roxburghe Reduction, June 1811.
The Lord Chancellor has just now moved the House to affirm the interlocutor of the Court of Session in the reduction. He barely stated his own opinion upon the two material points, without going into any detail. Upon the prohibitory clause, he said that the words, “nor yet do any thing in hurt or prejudice of these presents or this tailzie or succession,” were a sufficient prohibition of altering the order of succession—a distinct prohibition for that purpose—not exegetical of the preceding prohibition. With regard to the fetters being to apply to the heirs of the devolving clause, and to benefit them, he said that it was of no consequence in what part of the deed the fetters or the heirs were placed; and that, upon the most anxious attention to every thing within the four corners of the
Page: 348↓
I see that reference is made, by misapprehension, to a recent decision of the Second Division of the Court of Session,
Lord Duffus's Trustees v. Dunbar, &c., 28th January, 1842. The ground of that decision is misunderstood, and the rubric in one expression goes too far. The entail which prohibited debt contained an express declaration that bonds and obligations should not be granted for debt; and in one of the actions, the heir in possession, or his trustees, concluded to have it found that he was
entitled to grant bonds and obligations for debt, there being no bond actually granted. It was proposed in that case to dismiss that action, on the ground that the Court ought not to sustain an action to find that a party may do a thing, which he is prohibited from doing, or
_________________ Footnote _________________ deed of 1648, and to nothing anywhere else, he had no doubt that the true construction was that the fetters should apply. The terms of the above very distinct letter certainly do not warrant the inference that Lord Eldon imagined that he was dealing with a simple prohibition in an entail which had no fetters.”
Page: 349↓
Expressions in one of the opinions go further, but that was upon a point only incidentally noticed. Having long entertained great difficulty upon this point, I certainly did not intend to express any such opinion as the pursuer supposes.
If your Lordships shall not hold the point to be closed by former decisions, then the question is one which must, in my opinion, be decided by the terms of the Act 1685, c. 22. That Act of Parliament, in consequence of the unsatisfactory state of the law, was introduced in order to regulate the subject of entails.
I cannot think that the statute was intended to make a complete and new code, so far as third parties were concerned, and yet to leave the law upon a different and indeterminate footing as to the question of settlement and power between heirs. If not intended to regulate and settle the law as to the rights and interests of the heirs of tailzie against the heir in
Page: 350↓
The great object of an entail is to preserve the estate in the course of succession, and for the line of heirs whom the entailer prefers. Everything else relates to the means of accomplishing that end. The questions as to deeds obtained by purchasers or creditors, relate only to the effects of the deed which contains the entail. But there must first be a deed containing a destination or tailzie, and rights constituted in the heirs of that
Page: 351↓
The Act 1685, c. 22, does not profess to be in supplement of any existing and defined state of the law as to entails. It does not contain a declaration, or proceed upon a statement, of the law being complete, except in the cases where onerous rights are concerned. It does not admit that there previously existed the power effectually to tailzie estates so as to exclude alteration of the order of succession. In truth, that is always the great and leading object of every system of entails. On the contrary, the Act of Parliament begins systematically, and upon a plain method and principle, to give right to tailzie lands, and to substitute heirs in the tailzie. Now the proper meaning and import of the term tailzie is, beyond all doubt, to appoint a specific order of heirs, who may be different from the legal line of succession, and to cut off such of the latter as the party chooses.
Page: 352↓
Then the Act of Parliament goes on to make it lawful to do so, “with such provisions and conditions as they shall think fit, and to affect the said tailzies with irritant and resolutive clauses, whereby” (that is, as Lord Eldon also says, by the said irritant and resolutive clauses) “it shall not be lawful to the heirs of tailzie to sell, &c., or to do any other act whereby” (omitting the intervening acts) “the succession may be frustrate or interrupted,”—declaring all such deeds to be in themselves null and void, and that the next heir may pursue contravention.
1. In this enactment, it will be observed that the leading thing authorised and declared to be legal, is to substitute heirs in tailzies.
2. Then authority is given to affect these tailzies with irritant and resolutive clauses. So far as we have yet gone, the destination is the main thing which is here to be protected by such irritant and resolutive clauses, that is, the rights of the heirs against the party in possession.
3. It will be observed that the effect of rendering it unlawful for the heirs of tailzie to frustrate or interrupt the succession, is ascribed by statute directly and exclusively to the irritant and resolutive clauses thus authorised, just as much as the exclusion of sales and contraction of debt which are said to be thereby rendered not lawful. No distinction is drawn between the former and the latter. It is from the
Page: 353↓
The result that by any means heirs of tailzie shall not have power to break the order of succession, is thus by the statute ascribed directly to the force of the irritant and resolutive clauses authorised by the enactment. I cannot draw the distinction between the act of alteration and of sales or debts. The statute says expressly that the lieges may affect their tailzies by irritant and resolutive clauses, whereby it shall not be lawful to sell, contract debt, or alter. I think as the two former are only rendered unlawful by the force of the enactment, and through the means of irritant and resolutive clauses, the same obtains as to alteration. The statute is not declaratory. It contains no reference to any existing law as to entails. It confers the power to make tailzies. Hence, I hold there can be no tailzie effectual for any purpose, except under and by force of the statute. It makes these tailzies effectual to restrain the party in possession from altering or selling (both are put on the same footing) by means of irritant and
Page: 354↓
4. I hold it to be inconsistent equally with the general view, as with a sound reading, of the statute to suppose that the Legislature admitted that, at common law, and without irritant and resolutive clauses, it was not lawful for the heirs of tailzie to break the succession, if they were simply prohibited. I think the statute meant for the first time to sanction the power to render void an alteration in the order of succession appointed by tailzies, and provided for the only machinery by which that object could be secured, according to the view taken by Parliament. To suppose that any common law was left upon one branch of this enactment unaltered and equally operative, while the Act was only to form a new code as to other things embraced in the enactment, is a conclusion to which I could not come by any reading or general view of the statute. Such seems to me to be a result not warranted by any consistent view of the purposes of the Act, or by analogies in any similar cases. I find in a doubtful, unsettled, and disputed state of the law—when the form of accomplishing an entailer's object was, to say the least, not clearly settled, and when public policy plainly required that if entails were to be permitted there should be a clear system upon the subject,—that a statute is passed which gives power to make entails, and then in order to protect the same, says that irritant and resolutive clauses may be used, whereby it shall not be lawful to the heirs to sell, contract debt, or alter, &c. I cannot hold that, without these irritant and resolutive clauses, it shall not be lawful to heirs to alter, any more than to sell, or that the one was left to common law any more than the other.
Again:—It is declared “that such tailzies shall only be allowed in which the foresaid irritant and resolutive clauses
Page: 355↓
Again:—When the record is appointed, it is assumed that the tailzies therein entered shall contain irritant and resolutive clauses, and that the same shall be repeated in all the subsequent titles of any succeeding heirs.
And then “being so insert, the same are declared to be real and effectual, not only against the contraveners and their heirs, but also against creditors”. The pursuer reads this as if they are admitted to be effectual at any rate, and without all these requisites against the contravener. I think this is neither a sensible nor a warrantable reading. I think the statute, after these requisites are complied with, and on that condition, declares the tailzie to be effectual against the contravener, as well as against creditors; and when these requisites are complied with, (among which are irritant and resolutive clauses,) but not till then, are they, in my opinion, effectual either against the contravener or against creditors. This clause, on which an opposite construction is so often put, appears to me to be the clearest of all the parts of the, statute, and to be undoubtedly enacting, as much in regard to the contravener as to creditors. Supposing entails had never been attempted before, would not this clause have made them effectual against the contravener as well as against creditors ? That cannot be doubted. Then surely it is not admissible to hold, that, if entails, with these requisites, are declared to be effectual against the contravener, the statute intended to acknowledge that entails in any form, and without any of these requisites, were equally effectual against the contravener.
According to the statute, then, I think it is plain that, in order to be effectual against the heir in possession, the entail must contain irritant and resolutive clauses to be engrossed in the titles, whether to exclude the power to alter or to sell, and
Page: 356↓
The statute affords a test as to the soundness of the construction contended for by the pursuer. It is said that a tailzie with a prohibition simply, is effectual to render unlawful an alteration in the order of succession,—that it is good inter hæredes, and that the deed may be reduced which conveys the estate to another party as much as if there had been an irritant and resolutive clause. Suppose, then, the prohibition which is said thus to make the entail complete as to alteration, has been omitted in the course of the title, will that omission import a forfeiture? Clearly not, under the next section of the Act, which assumes that there must be an omission of irritant and resolutive clauses to operate as a forfeiture. Then what an absurd species of tailzie is supposed to be effectual to prevent alteration. Why, the heir might simply carry through a new title in his own favour without the prohibition—that would imply no forfeiture, and then his title would be one in fee-simple, and so he might alter.
The statute properly provides for the protection of parties who have bona fide contracted with a party infeft in fee-simple, while the tailzie has been omitted from the title. But this clause affords no warrant, as some have thought, for holding that the only object of the statute was to provide for the case of contracts with third parties.
The pursuer seems to wish to represent the point embraced in the remit as of the same character with another very extravagant proposition maintained in the case of Cathcart, viz. that if a party did not prohibit all the acts which he may under the statute exclude, he could not by prohibitory, irritant, and resolutive clauses, exclude some. The first words of the statute, which give the lieges power to put in any conditions they choose, and draw so plainly the distinction between the
Page: 357↓
This remark leads me to another observation on the commencement of the statute, which I have purposely reserved, and which I explained at some length in a case recently decided in the Court of Session, Dingwall's Trustees v. Dingwall. The Act says, that “it shall be lawful to tailzie lands, and to substitute heirs in their tailzies, with such provisions and conditions as they shall think fit, and to affect the tailzies with irritant and resolutive clauses, whereby,” &c. Now, I apprehend it to be clear, that the ‘ provisions and conditions’ refer to the prohibitions,—that is to say, that you may insert in the tailzie whatever provisions and conditions you think fit, and separately, that you may render these effectual by affecting the tailzies by irritant and resolutive clauses, whereby it shall not be lawful for the heirs to do certain things. I think the distinction between the provisions and the irritant and resolutive clauses is most clearly and emphatically marked ; and according to that distinction it is only by the irritant and resolutive clauses that the conditions are to be rendered effectual, and that it is not to be lawful for the heirs to alter or sell.
In the above view I regard the whole of the entail law as depending exclusively upon statute, and I hold that the point stated for our opinion must be resolved in this case by the statute—which will be found sufficient for the determination of every general point which can well be raised. In many recent discussions I think the tendency has been to fall back more directly upon the terms of the statute, and the result has been to give much more certainty to the rules of decision. I refer particularly to the opinion of Lord Lyndhurst in the case of Munro v. Drummond, to his opinion, and that of Lord Eldon's in the case of Ascog, and the Marquis of Queensberry's claim of damages, and also to many of the opinions of Lord Brougham.
Page: 358↓
For instance, the ground for reducing deeds done in violation of a prohibition is sometimes rested upon the Act 1621: But the principle of that statute would equally reach deeds in favour of third parties, for, whether onerous or not, they are done to the prejudice, (according to the view of the Statute 1621), and in defraud of the rights of the heirs of entail as creditors under the tailzie.
Again, if anything is rested upon the prohibition being in gremio of the title, and so forming an effectual condition that would apply equally to all prohibitions, and ought to be equally effectual against third parties contracting with a person who has a title so limited, the title and the Record of Seisins give them notice of the limitations as much as the Record of Tailzies; or the insertion of the entail, with a prohibition in the Register of Tailzies, gives them as much notice of the condition as when irritant and resolutive clauses also occur. But if in the one case the Court is at liberty only to look to the statute, on what ground is there to be a different rule when the question is raised as to a deed altering the order of succession? I see no solid distinction. The statute certainly draws none.
Again,—it is sometimes stated as the ground for reduction, that the party obtaining the deed of alteration represents the heir of entail, who has violated the prohibition, and who is bound to fulfil the obligation under the deed, and to acknowledge the conditions of his own title. But that view begs the whole question, for it assumes that the statute has acknowledged that, without irritant and resolutive clauses, a party is bound by a prohibition alone, whereby an act done against it is not lawful. I take the sound view under the statute to be, on the contrary, this, viz., that the provision or condition (the prohibition in short) is not to constitute a complete obligation on the
Page: 359↓
Besides, if that view of the case is taken, how could it be possible to refuse damages for the breach of a prohibition, thus taken to constitute a valid obligation, and to impose an effectual prohibition, though the contracting party might be safe, owing to the defect in the irritant and resolutive clause? The view I am considering holds that the heir is bound by the prohibition—that the prohibition constitutes a valid obligation on him—that his act in contravention of it is a wrong—that the party representing him cannot defend it—and that the wrong must be repaired by annulling the deed. But is not that principle still more strongly applicable to the claim of damages, when the entail is even more perfect, but perhaps not recorded; and it may be that the heir in possession is the only one of full age in the destination, and the others have been unable to defend themselves by putting the entail on record? The party in that instance has committed an additional wrong by not recording the entail. He has violated the prohibition—he has disappointed the heirs of most valuable rights, and he has put into his own pocket an immense sum of money by the sale of the estate, and yet he is neither bound to reinvest nor liable in damages,—although the view I am referring to ought to lead to that result as much as to the reduction of a deed altering the order of succession. Accordingly, Lord Eldon held, in the case of Ascog, that all these general arguments were met by the answer that the statute drew no such distinction as that an entail was effectual against the party in possession to any effect, if not made in the way and form provided for by the statute. Referring to the whole
Page: 360↓
I solicit permission to remark, that the views which I have ventured very reluctantly to state, when differing from those whose opinions I so deeply respect, are rested very much upon the effect which I think the decision of your Lordships in the case of Ascog must have on the question stated to us for opinion. If that case can be explained and accounted for by this view alone, viz., that there was no direction to be found to entail the lands in which the price might be reinvested, and that there was only an entail of the lands actually sold, and that on this ground alone it was held that no action lay for the price against the contravener or his representative; if the case of Ascog can be so explained, undoubtedly one main difficulty in the pursuer's way will be removed. But I cannot so explain that important judgment. It appears to me that it proceeded upon very comprehensive and (with deference) sound views of the general object and effect of the Statute 1685, and not on any narrow technical view. I must look to it, not in reference to the opinions of those who did not concur in the result, but in reference to the opinions of those whose judgment prevailed. I see that Lord Eldon had fully before him the train of opinions, expressed in institutional writers as to the alleged effect of a destination, with a prohibition, to bind the heir and to impose obligation on him. He saw that that view was truly at the foundation of the judgment appealed from,—that if sound, the judgment was in substance right,—that if there was an effectual prohibition imposing a complete obligation, then the claim for damages or compensation in some form was exactly the same as in all other cases of clear obligation, and a breach thereof wrongously committed. Hence he examined that view with great anxiety, and with that reach of understanding which impresses the mind with such profound respect for the reflection and thought evinced in his opinions. The result he
Page: 361↓
I look upon the judgment in Ascog as the one which has most satisfactorily cleared up the true effect and operation of the Statute 1685, and consistently with the view I take of it, I am unable to answer the question stated to us favourably for the pursuer.
But it is for your Lordships to declare what was the true ground of judgment in that case, and what shall be taken to be the full and only effect of it. It is, therefore, a great comfort to myself that the opinion now stated is one merely submitted for the consideration of your Lordships, with whom judgment lies, and that I have not been compelled to enter on this question in any case in the Court of Session.
I own that some misapprehension seems to me to have arisen from the use of the expression,— “Questions inter hæredes.” All questions as to the violation of an entail are questions inter hæredes;—though the party defending the act may be an onerous disponee, yet he is contending that the heir whose act is in question was not effectually restrained from doing the thing challenged. The substitutes must show that the heir in possession was effectually bound and restrained by the tailzie from doing the act, before they can reduce it. The restraint on the heir in possession is always the foundation of every reduction. Hence every such question turns on the rights of the substitutes and on the restraints imposed on the heir in possession. When an onerous third party defends the act, the inquiry is still, was the contravener effectually restrained in favour of the heirs of tailzie? All such questions are truly questions inter hæredes, in the only sense of the term that is material. Now, in trying that question, I cannot find any ground for holding that, under this statute,
Page: 362↓
In some of the discussions upon this subject, it is said that deeds altering the order of succession are reducible because mortis causa. But that is in truth the use of a term without attaching any distinct meaning to it, because the very same opinions in the institutional writers undoubtedly hold deeds of alteration to be unlawful and reducible, although taking effect immediately inter vivos. Hence the effect ascribed to a prohibition is really not rested upon the fact that the deed is mortis causa.
But I own I am at a loss to understand how this point, viz., that the deed is mortis causa, bears upon the question, either under, the statute or on principle.
The view, founded on the statute, it cannot affect.
On principle, it seems to have no relevancy. Every man may effectually alter the destination of his estate by a deed which he may retain in his own possession and in his own power, if he is not validly restrained from doing so. If he is restrained, he can neither do so during his life, nor by leaving at his death a deed of alteration. If he is not restrained, then the deed is still his act, of the date it bears. There is nothing unlawful in his retaining full possession and enjoyment of the estate under a title which does not exclude alteration, and in leaving a deed which so alters. This seems to be the natural course to follow in every case where the title does not exclude alteration. Then, when the disponee produces the deed, and claims to act under it, it must receive effect, unless the title by which the granter held the estate barred alterations. And if it did, then upon that ground effect must be denied to the deed, whether it is to be acted upon at one period or at another.
Page: 363↓
Page: 364↓
On the whole, in short, I cannot see upon what principle any remedy can be given in the case of the violation of a prohibition against altering the order of succession not enforced by irritant and resolutive clauses, which would not also support a remedy in other cases.
This is plainly the result of the very elaborate opinion of Lord Eldon in the Ascog case, already referred to.
Page: 365↓
The Act 1685, c. 22, is drawn with consummate skill for the objects it had in view. Every question which has yet occurred in entail law has been solved by the force of the statute, when its terms have been duly considered. It appears to me to be intended to introduce, fix, and arrange a system of entails. It gives power to make an entail. It acknowledges no power to do so in any other form or manner—(the extension of its sanction to deeds executed prior to its date, if in terms of it, and recorded under it, is a different point). It begins with declaring how the heir in possession may be restrained in his powers as proprietor, by clauses whereby it shall not be lawful for him to do certain acts. In no other way is it said that these acts can be declared not to be lawful. This is the foundation of all that follows. Among the acts which it shall be lawful so to prevent him doing, is alteration of the order of succession. When the question then is put to me,—Is he prevented from altering, I feel that the statute constrains me to inquire,—is the restraint imposed in the form and with the requisites of the statute?—in the way in which power is given to impose the restraint, in order to accomplish the end of preventing the act ? If not, then under the statute I must answer that he has not been prevented from altering in the only way in which he could have been competently and effectually prevented
Page: 366↓
John Hope.”
“November 29, 1842.”
“
In the first place, the deed is not one of alienation, even gratuitous. It is a disposition by Mr. Thomas Carrick, the institute, by which he sold, alienated and disponed the lands contained in the entail, “from me, in favour of myself and my heirs and assignees;” and the statement of the defenders is, that they, “after having been served heirs-portioners to him cum beneficio inventarii, have taken infeftment in virtue of the disposition executed by their said brother.” Whatever difficulty there may have been, in some cases, in defining an alienation, it is a palpable misnomer to apply that term to a conveyance by a disponer in favour of himself. The deed in question is strictly and technically, a deed altering the order of succession. If published during the lifetime of the granter, it might have been the subject of reduction against him, and every ground of reduction good against him, must be equally good against the respondents, who do not take from him, but through him, and are liable, as his heirs, in the observance of his obligations. Secondly, The object of this action, and its effect, is not to enforce the obligation contained in the entail, indirectly, through the medium of a claim of damages and for investment of price. It is to enforce directly that obligation; to annul the deed granted in violation of it, and so to replace the lands under
Page: 367↓
The question then is, whether the absence of an irritant clause in the original entail, is sufficient to exclude the pursuers from the remedy which they seek. The affirmative is maintained by the defenders; mainly on the ground, that the Act 1685 forms the absolute and exclusive test, for determining the powers of those possessing under entails, and the rights of expectant heirs—that, in short, no deeds granted or acts done, can be effectually challenged, unless the prohibitions relating to them be fortified by the irritant and resolutive clauses authorized by the statute. But this, again, will be found to involve, alternatively, one of two propositions, namely, either that the prohibitions violated by the deed under reduction, were in themselves bad at common law, and required the enactments of the statute to render them effectual; or that though originally good at common law, their effect at common law was extinguished by the statute, and the powers of proprietors to impose them, were, from the date of the statute, rendered dependent on an exact compliance with its provisions.
On considering these points, with all the attention which their importance demands, I have not been able to satisfy myself, that either the one or other of these alternative propositions is well founded. On the contrary, it appears to me, that both of them are irreconcileable with authority, and at variance with a uniform series of decisions of this Court, some of them not merely analogous but identical, pronounced since the statute was passed.
In regard to principle, it would be difficult to see the illegality of a proprietor who conveys his estate to a disponee and a series of heirs, providing that neither the disponee, nor any individual heir, shall defeat the rights of those to come after him, by mortis causa deeds or alienations. That being the condition upon which the disponee and each successive heir
Page: 368↓
Again, as the condition confers a right on the subsequent heirs, to take the estate by succession, a right substantial in itself, though peculiar in its nature, a jus quœsitum thence arises, enabling those expectant heirs to challenge and annul any violations of that condition, not merely against the violators of the condition, but against such of his successors as are in law affected by his obligations. Accordingly, on looking at the authorities in regard to the law as it stood, prior to the passing of the statute, it cannot well admit of a doubt, that they all considered prohibitions directed against altering the order of succession, or even against alienations and contracting debt, as creating a jus crediti in the substitutes, enabling them to challenge gratuitous deeds done in violation of those conditions. Indeed this matter seems to have been considered so clear and of so little importance, in comparison with that which chiefly engaged their attention, viz., the effect of such clauses against onerous transactions, that it is not very wonderful that their views upon it are very briefly, and perhaps somewhat loosely expressed. As an instance of this, may be remarked the reference by some of those authorities to the Act 1621, as the proper instrument for reducing gratuitous deeds done to the prejudice of such prohibitions. For, although this reference is quite conclusive of the opinion of those learned persons, that such prohibitions raised in the person of the substitutes an available right of credit in their due observance, it would rather appear that such a right of credit did not necessarily require the assistance of the Act 1621. In the case of personal debts having no connection with the heritable estate, the debtor, though under a moral obligation not to defraud his creditor by making away with his estate, is unquestionably under no direct legal obligation in regard to the estate itself; and,
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But though the Act 1621 might not be a necessary instrument for the reduction of such deeds, there seems no good ground for questioning, that they did fall within its provisions, and that consequently it might be legitimately so applied. The words of the Act of the Lords of Council and Session, confirmed by the statute, declare, that “in all actions and causes depending or to be intended by any true creditor for recovery of his just debt, or satisfaction of his lawful action and right,” “they will decrete and decern all alienations,” &c., made to conjunct and confident persons, without just and necessary causes, and without a price being paid, to be null. Now, in the case contemplated, “the recovery of the creditor's just debts, or satisfaction of his lawful action and right” implied a restoration of the lands to that tenure and line of descent in which he stood as an expectant heir; and consequently, if claims to that effect could be held to constitute rights of credit, or grounds of ‘lawful action,’ on the part of the expectant heirs, alienations falling under the description contained in the statute, to the prejudice of such rights, were deeds which the Court were, by the terms of the statute, bound to decern and decree to be null. Assuming then, that simple prohibitions did inter hæredes confer rights of credit, those learned authorities were fully justified in holding that gratuitous alienations in violation of them were reducible under the Statute 1621. And it is
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But the important consideration is, that every authority holding such alienations to fall under the Act 1621, does by necessary implication hold that such prohibitions in themselves confer a right of credit,—a right of credit which, for the reasons already assigned, I should be disposed to consider the assistance of the Act 1621 not necessary to enforce.
Looking, then, at the whole train of authorities on this point as it stood before the Act 1685, there does not seem to me to be a doubt, that they all considered prohibitions against altering the order of succession, and even against alienation and contracting debt, to be effectual against gratuitous deeds, as raising a right of credit in the expectant heir, independently of irritant and resolutive clauses. Stair, Mackenzie, Hope, all appear to concur in this ; and indeed I am not aware of any one authority to the contrary. Accordingly, if the only object of entailers had been the prevention of gratuitous deeds, I think the fair presumption is, that the interference of the Legislature never would have been required.
But to those whose feelings and prejudices rendered the descent of their landed estates unaltered and undilapidated through a long line of heirs, a matter of importance, clauses not operating beyond gratuitous conveyances could afford but little security. Sales, debts, and the accompaniments of apprizings and adjudications were likely to be much more fatal to such views of posthumous regulation than gratuitous alienations inter vivos, which are but of rare occurrence, or even alterations of the order of succession by mortis causa conveyances. Consequently it was against onerous transactions that the ingenuity of lawyers and conveyancers was
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The difficulty, then, was to devise means by which the
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The whole of these curious questions as to the effect of irritant and resolutive clauses were set at rest by the Act 1685, cap. 22, which defined the conditions, on the observance of which such clauses should receive effect against onerous transactions, and on the non-observance of which they should have no such effect. But while it may be admitted, and is indeed now fixed in practice, that this statute forms the rule by which all competition between the rights of heirs of entail and those of onerous third parties must be tried, I must be permitted to doubt whether there is any good ground for holding that that statute, in sanctioning the operation of irritant and resolutive clauses in matters previously questionable, extinguished or in any way affected those common law rights created in favour of the substitutes by prohibitions, which never seem to have required irritant and resolutive clauses to protect them. On the contrary, I think it clear, from those authorities who treated of the subject at the very time, that the statute was not understood to have that effect. Lord Stair, in treating of clauses resolutive, concludes (B. i. tit. 14, sec. 6)— “And now there is a special statute regulating tailzies and clauses irritant:” and in another passage, after mentioning the case of Stormont, he refers (B. ii. tit. 3, sec. 58) to the statute as sanctioning clauses irritant in taillies, for the observance of the conditions there laid down, “which, if they omit, it shall infer a nullity of their right, but shall not prejudice creditors so contracting bona fide, which weakens the former tailzies with clauses irritant”. These expressions seem to me to imply,
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And I think this is the fair reading of the statute itself, which seems to contain nothing extinguishing any common law right, or rendering dependent upon the observance of its provisions any right whatever, which did not require irritant and resolutive clauses to protect it. The leading enactment is, “that it shall be lawful for His Majesty's subjects to tailzie their lands,” &c. and “that such tailzies only shall he allowed in which the foresaid irritant and resolutive clauses shall be insert in the titles, and the original tailzie entered on the record,” &c. The inference from this, that no tailzies should he allowed, i.e., should have any effect whatever, except those
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But the inference appears to me to rest entirely upon a most arbitrary construction of the statute. Its enactments must be read together. The leading enactment declares what it shall be lawful for the entailers to do, viz., to tailzie their lands, and to substitute heirs, with such provisions as they shall think fit, “ and to affect the said tailzies with irritant and resolutive clauses, whereby” it shall not be lawful to sell, annailzie, or contract debt, or alter the succession,—being the enumeration of the acts to be struck at by these irritant and resolutive clauses. The fair construction certainly is, that it shall be lawful to tailzie, with the additional security of irritant and resolutive clauses directed against the acts enumerated. And the mention of the alteration of the succession in that enumeration is by no means superfluous; because, though the simple act of altering the succession might not require an irritant and resolutive clause to prevent it inter hæredes, yet if the party holding under that alteration alienated for an onerous cause, an irritant and resolutive clause might be necessary to annul that link of the title against the onerous purchaser.
The next head of the statute declares the terms upon which these powers shall be exercised, namely, such tailzies, i. e., the tailzies previously described, fortified by irritant and resolutive clauses, shall only be allowed, in which the aforesaid irritant and resolutive clauses, are insert in the titles; and the original tailzie, with all its substitutions and irritant and resolutive clauses, shall be produced before the Lords of Session, &c.
There is then the provision for the repetition of all the provisions and irritant clauses in all the subsequent conveyances
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It appears to me that this is the natural reading of the statute; and what is of much more importance than any opinion of mine, it is the reading of the statute, which has received the uniform sanction of the Court since the passing of the statute itself. In every case that has occurred, in which there was room for the distinction, the distinction has been taken, and given effect to, between onerous transactions requiring the sanction of the statute to invalidate them, and gratuitous deeds, in regard to which, in questions inter hæredes, the sanction of the statute, and the observance of its provisions were held to be unnecessary.
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The same principle was sustained in the case of Ure against Earl of Crawford, 17th July, 1756, Mor. 4,315, in which the only peculiarity was, that the condition, not to sell, contract debt, or do any other deed by which the lands might be affected, does not seem to have entered the title at all, but was contained in a separate obligation. This specialty was evidently rather unfavourable than otherwise, to the heirs founding on the condition, and yet it was held sufficient to support the reduction of a gratuitous conveyance,—that reduction, as would appear from the report, being rested, not on the Act 1621, but simply on the contravention of the prohibitory clause. A similar judgment was pronounced in the case of Craik against Craik, Mor. 4,313, in which the question seems to have turned entirely on the onerosity or non-onerosity of the deed challenged.
For it must be observed that the decisions in which effect was refused to a bare prohibitory clause, are no less instructive on this point, than those in which its effect was sustained. In almost every one of those cases, it was conceded in argument
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Further, the effect of conditions merely personal, in questions inter hæredes, independently of the Act 1685, is necessarily involved in the decisions giving effect to an entail unrecorded. According to the fixed principle in our law, the right having once vested in an heir in possession, a resolutive clause, annulling his right in a certain event, is nothing but a personal condition. If, then, it could be held, that from the date of the Statute 1685, no personal condition was effectual, even inter hæredes, except by the force of the statute; it must follow, that no heir holding under an unrecorded entail, could incur a forfeiture of his right by contravention. Accordingly, that was the very argument maintained in the case of Willison against Callander of Dorator, Mor. 15,369-70. But “the Lords found that the resolutive clause was effectual.” And this leads me to observe, that there are many provisions and conditions which have hitherto stood unquestioned, in regard to the rights and obligations of heirs, and which can be derived from no other source than the common law, independently of the statute. The statute sanctions irritant and resolutive clauses, whereby it shall not be lawful to sell, annailzie, contract debts, or to alter the order of succession, declaring such deeds to be in themselves null and void, &c. That is quite intelligible, in so far as it applies to the rights of third parties, which rights necessarily imply, the intervention of some positive act to create them. But what becomes of all those provisions and conditions, of which the subject is not a prohibition against doing, but a positive injunction to do, certain acts. It is clear, that although these last admit of a resolutive clause on failure, they admit of no irritant clause. Such injunctions, indeed, do not seem to fall within the description of cases, to which, by the terms of the statute, it is competent to attach either irritant or resolutive clauses. For instance, to take the most ordinary
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Although sensible of the undue length to which these remarks extend, I feel it necessary to notice two other descriptions of cases, 1 st, because the principles laid down in them have the authority of our latest practice: and, 2 ndly, because they appear to me to be cases directly in point.
The first consists of those touching the effect of entails unsupported by the statute, in regard to the provisions of widows. “In one of the older cases, Anderson v. Wishart, Mor. 13,576, a clause excluding courtesy and terce, the entail being not recorded, was not held effectual against the widow. And certainly much might be said in favour of that decision, on the ground of the right of terce being onerously acquired. But a different rule is now laid down by a series of decisions, of which it is impossible to question the authority. In the case of Gibson v. Reid, Mor. 15,869, the question was, whether a clause excluding the terce, but without an irritant clause, could take effect against the widow ? The Court found that it did, upon the ground that, “like the jus mariti, it may be excluded by the terms of the grant, which are strictly obligatory
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The other description of cases, having an important bearing upon the present point, includes those touching the powers of
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In the first case, Meldrum and Maitland, in addition to that of taking the name and arms, &c., there was the provision that it should not be lawful to “alter the destination above written by contract of marriage, or by any other deed gratuitously to disappoint the order of succession,” and this was followed by a resolutive but no irritant clause. A party holding under this entail executed a new deed in favour of the same series of heirs, containing additional fetters against selling or contracting debt; and, at the same time, she, by another deed, conveyed part of the lands, and also one-fourth of the free rent of the whole estates, to trustees, for payment of provisions to her younger children. Both deeds were brought under reduction by the heir-apparent under the original entail; and both deeds were reduced, the argument on the part of the pursuers, as condensed in the report, 5 S. & D., p. 859, being, “that an heir in possession under an imperfect entail, —that, as he takes and enjoys under the conditions of the deed, he is bound to respect those conditions,” &c. It is clear, that if a prohibitory clause, without an irritant clause, had been of no avail against gratuitous deeds, such a judgment never could have been pronounced. On the assumed view, that no provision, unless secured in terms of the Act 1685, could avail even inter hæredes, the deeds in that question must have been as little subject to challenge as if they had been granted by a party holding under a simple destination.
The other case, that of Lord Fife against Duff, 6 S. & D., p. 698, was of the same kind. There was a prohibition against altering the tailzie or order of succession, with a resolutive, but no irritant clause. A party holding under this deed executed a new and strict entail, with prohibitory, irritant, and resolutive clauses; and, in doing so, made a very slight alteration in the order of succession. The heir entitled to succeed under the former entail, brought an action for setting aside the last entail, the summons being laid, not on the Act of 1621, but simply on the prohibition contained in the principal entail, and on the disability thence arising to alter the terms of the entail or the order of succession. Now, there the prohibition was not fortified by any irritant clause; and upon looking at the written pleadings, I perceive, that the circumstance was brought distinctly under the notice of the Court; and yet it never seems to have been doubted, that whatever might be the merits of the defence on other grounds, a prohibition required, in a question inter hæredes, no irritant clause to render it binding; and, accordingly, the Court decerned in terms of the libel. It seems impossible to evade the application of these cases to the present question. Both of them are instances of the competency of reduction at the instance of an heir, founded on a prohibition without an irritant clause. And, in so far as
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On these grounds, it does humbly appear to me, that the question put to us must be held to be determined in the affirmative, not only by the concurring authority of all our institutional writers, but by an uninterrupted series of decisions.
It only remains to be considered, whether those authorities have been shaken by some of the later cases referred to on the part of the defender. In considering these cases, I am disposed to throw out of view entirely those of Sharpe against Sharpe, decided in the House of Lords, 18th April, 1835, and that of Speid, decided in the Court on 21st February, 1837. In the first case, the only question was the sufficiency of the irritant clause against acts of contravention. The House of Lords held, reversing the judgment of the Court, that there was no good irritant clause; and in the words of the judgment, as appearing in the report, it is declared, that the deed of entail is not sufficient to prevent the appellant from selling, disponing, or contracting debt, “ or from gratuitously alienating or disposing of the same” being the acts that are described in the summons. It would appear, however, from the report, that this last point, as to gratuitous deeds, was neither raised in the arguments nor considered in the opinion of the learned Lord who moved the reversal; and it also appears from a note in a later case, that of Strathbrock, Robertson's Reports, 16th August, 1839, that these expressions in the judgment had been inserted from inadvertency. This I must hold to be confirmed by the very remit in the present case; as, if that judgment had been understood to express the judicial opinion of the Court of Appeal, I do not see how the present question ever could have been submitted to us.
The case of Speid against Speid, is one of the same kind. The summons, founding on the defect in the irritant clause, included no doubt the alleged power of the pursuer to execute
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The whole difficulty arises from the cases of Ascog and Bruce, decided in the House of Lords, on 16th of July, 1830. And it is unquestionable, that the rejection of the argument of the respondents in those cases is, to a certain extent, unfavourable to the present pursuer. Because, from the very nature of those arguments, the judgment in favour of them would have formed an authority a fortiori in favour of the present pursuer. But it does not follow that the judgment in those cases, though to that extent unfavourable, was necessarily an authority against him on the point now raised. On the contrary, it rather appears to me that those judgments did not necessarily affect the present question. This opinion is, of course, expressed with the most perfect deference to the Court of Appeal, who are of course the best judges of the true principles of the decisions which were pronounced by them. I can only say, that considering the point at issue in the case of Ascog and Bruce, and the grounds of the judgments as appearing in the report, I should not feel myself authorized to hold that those judgments did decide, or were intended to decide the question that has been put to us. That they did not do so directly is clear; whether they did so by any necessary implication, is a fit subject of inquiry.
In the case of Ascog, the entail was defective, both in the
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Now it is clear enough, that if the judgments of the Court of Session had been affirmed, there would have been an end to the present question; because those judgments directly sustained the obligatory effect of the prohibitory clause inter hæredes, independently of the irritant and resolutive clauses. But the converse of the proposition is not necessarily true. We must look to what effect and under what circumstances the bare prohibitory clause was there pleaded, in order to see how far those judgments bear upon the present case. Because
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That principle was enough for the decision of the case before the House of Lords. It was not necessary to go beyond it; and it does not appear to me, from the report of the opinion of the noble and learned person who moved the judgment, that it was intended to go beyond it. Thus the Lord Chancellor, Eldon, 4 W. & S., 222, gives the import of the claim of the respondents in the following terms :—
“The deeds of entail apply no irritant or resolutive clause against selling. The deed, therefore, admits of an effectual sale; but the author of the deed, without expressing that such shall be the effect of a sale, is .”
Again, (p. 223,) —“It is for your Lordships to judge whether clearly settled law exposes the heir selling to such liabilities, and nevertheless leaves him entitled to such liberty, and that you are bound to imply that the author of the entail meant to impose an express condition by the deed, and instead of enforcing the observance of it as he enforced the other provisions, by irritant and resolutive clauses, that he relied upon some supposed clearly settled law to do what he might have directed by this deed, but as to which he is perfectly silent, namely, from time to time, upon every selling, to require the heir to buy again and entail to the same uses,” &c. A great many other passages might be quoted to the same effect. No doubt there are passages which refer to the statute, and the irritant and resolutive clauses there authorized, as the test of the existence of the obligation even inter hæredes. Thus, after quoting the statute, the report proceeds, 4 W. S &., 229:—
“The language of this statute seems therefore to import, that the Legislature was not only ordaining a law for the benefit of creditors and other singular successors, but also a law which was to operate between and for the benefit of heirs.”
But then it must be recollected that these expressions are to be construed, with reference to the only point which was before the Court of Appeal, viz., the possibility of the existence of an obligation inter hæredes, which obligation required, from its nature, and the terms of the statute, irritant and resolutive clauses, in order to render it an obligation at all; according to the test which seems to have been assumed as the true one, namely, the possibility of preventing the actual completion of the prohibited act.
The judgment, then, as might be expected from the nature of the case, went no farther than this, that a prohibition which did not extinguish the heir's power to sell, constituted no obligation, even inter hæredes, so as to enable the expectant heir to claim any reparation or substitute for the loss of the estate
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Indeed, this is the very description of that judgment given by Lord Chancellor Brougham, in a later case, that of Cathcart v. Cathcart, July 18,1836. After stating, “that the whole current of decisions negative the proposition, that an entail, if void against creditors and other singular successors is necessarily invalid as among the heirs of entail, and intra familiam, and on behalf of one substitute against the other,” he proceeds, “ the grounds on which the Ascog case was ultimately determined, does not break in upon that which I have taken the liberty of stating, that the course and current of authorites is destructive of the proposition, that if an entail is bad as against singular successors, it is bad intra familiam,” &c.
All that was then decided in the Ascog case, was the incompetency of the expectant heir demanding reinvestment of the price, on a sale which it was admitted the prohibitory clause was not sufficient to prevent. The grounds of that judgment appear to me exclusively applicable to the case then
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But it must be evident that not one of those rationes decidendi applies to the present case. In the first place, so far from its being admitted as forming the condition of the argument, that a prohibition of gratuitous deeds is ineffectual without the assistance of the Act 1685, the very question here raised is, whether such a prohibition be effectual or not? Secondly, This entirely removes the second ground of decision in the case of Ascog, that the relief there sought inter hæredes, viz., the reinvestment of the price, was one not contemplated in the entail, and rested merely on implication. Here the object and effect of the prohibition is not the indirect enforcement of the obligation through a claim of damages, or for reinvestment, but its direct enforcement, the appropriate fulfilment of the obligation by annulling the deed challenged, and thus restoring the lands to that tenure under which the contravener was bound to leave them. Lastly, so far from there being any want of authority, we have a mass of authority, both from institutional writers and the records of our practice, which it would be difficult to produce in any other branch of our law.
It humbly appears to me, then, that the decisions in the case of Ascog and Bruce are neither directly nor by implication conclusive of this question. The question, Whether or not a prohibition without an irritant clauso is sufficient to
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I have only to observe, in concluding, that holding the above reasoning to apply in general to gratuitous deeds, I have the less difficulty in the present case, on considering the particular nature of the deed in question. It is not an alienation at all. It is a deed in favour of the granter himself and his heirs and assignees. If a title had been made up upon it by the granter in his lifetime, it might have been reduced, as a violation of the conditions on which he previously held the estate. He clearly could have pleaded no independent right whatever as a disponee, disencumbered from the obligations under which he lay as a disponer ; and it is equally clear that those obligations, if good against him, are equally good against the defenders, who take through him by service. Unless, therefore, it could be held that a prohibitory clause was of no avail whatever, and left the disponer in the situation of one holding by simple destination, a proposition which seems to be quite inconsistent with all our authorities, the deed under reduction must be held reducible.
Upon all these grounds, I humbly submit as my opinion, that, even on the supposition made in the question, of the defect of the irritant clause, the question ought to be answered in the affirmative: and “that the entail is otherwise sufficient to exclude or render void the deed under reduction.”
“ J. Fullerton.”
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“ H. Cockburn.”
“
The case referred to was that of Grant against Dunbar; and the circumstances were shortly these. The lands of Eden, in Aberdeenshire, were entailed in 1713; by a deed containing distinct prohibitions against selling or altering the order of succession— but no irritant clause. It was therefore clearly in the power of the heir in possession to sell; and accordingly Mr. Gordon Duff executed an apparent sale of the property, to a trustee for his nephew, Major Dunbar, in 1809; and in the year following Mrs. Grant, as the next substitute, raised an action against him, concluding first for reduction of the transaction, on the ground of alleged erasures and informalities in the conveyance; but second, and substantially, for damages, and reinvestment of the price, in case the sale should be found
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When these facts were discovered, the pursuer substantially abandoned her original action for reinvestment of the price, and instituted a new process of reduction, on the ground of the pretended sale being truly a gratuitous alienation or alteration of the order of succession, against which the prohibitions of the
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Now, I observe that the point of law submitted for our consideration in the present case, as to the sufficiency of mere prohibitions to annul gratuitous contraventions, was not at all discussed in the first reclaiming petition for Major Dunbar against the Lord Ordinary's judgment, though it obviously was at the bottom of the whole case for the pursuer, and will not be readily supposed to have escaped attention, when I mention that this petition extends to no less than fifty-four pages; and is conjunctly signed by the names of Andrew Skene, George Cranstoun, and John Clerk. The whole argument, however, is on the sufficiency of the evidence produced, to show that there was no real sale, but a mere collusive transaction of the kind alleged by the pursuer; and in the second reclaiming petition, given in after the Court had unanimously recognized the relevancy of that ground of reduction, the point is still more distinctly brought out. The petitioner there says (p. 23), “that he does not dispute that, if the pursuer's representations of the import of the transaction under reduction were supported by evidence, there would be a ground for setting it aside. He has never disputed that if, under pretence of a sale, and by a fictitious transaction, to which he (the defender) was a party, Mr. Gordon Duff had in point of fact merely made an alteration of the order of succession, such a transaction could never be supported, as an onerous purchase of the property. But what he maintains is, that there is no evidence whatever of his participation in the intention which Mr. Gordon Duff had undoubtedly formed, to dispose of the lands contrary to the provisions of the entail,” &c.
“Now, considering that this was the decision, and this the
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I scarcely think that anything need be added, in the way of commentary or farther illustration, to that clear view of the object and true meaning of the Act 1685, which Lord Fullerton has given. And yet I am tempted to observe, that it has all along appeared to me that it can require nothing more than a patient and attentive perusal of the several clauses and provisions of that Act, in their natural sequence and mutual bearing on each other, to arrive at the same conclusion; and that it is only by either attaching an absolute or separate meaning to relative expressions, or unduly limiting the reference of one clause to another, that any difficulty can ever have been occasioned. Nor indeed am I aware that, till very lately, any such difficulty has been experienced.
In construing a short and concise document like this ancient statute, I take it to be a cardinal rule, or at least a most useful precept, to read the whole of it consecutively and together, before seeking to attach a precise meaning to any particular passage; and if this be done, especially with the slightest recollection of what I now assume to have been the antecedent state of the law, I really cannot bring myself to think that it could occur to any one to doubt that its whole and sole meaning was to provide, that tailzies should be thereafter effectual against creditors and purchasers, provided they were fortified by irritant and resolutive clauses,—these clauses
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In reading the introductory or leading clause, for example, which provides, “that it shall be lawful to His Majesty's subjects to tailzie their lands,” &c., those who maintain the construction to which I object, appear to me to stop at the words I have now cited, as if they could be detached from those which immediately follow, and then to construe out of them a declaration, that for hereafter the whole power of tailzeing should be held to depend solely upon this statutory permission. And afterwards, when they come to the clause which declares, “that such tailzies shall only be allowed in which the foresaid irritant and resolutive clauses are insert in the titles,” &c., they construe this, not as referring only to tailzies intended to operate against creditors and purchasers, but to all and every tailzie which might afterwards be made; and, in fact, so as to import the absolute nullity of every settlement upon successive heirs of provision, which was not guarded by irritant and resolutive clauses.
Now, it appears to me that both those startling and extravagant conclusions might be avoided,—1 st, By merely reading on or through the whole of the first clause, to its natural conclusion, and taking it as one simple and continuous provision; when it would be found to import merely, that, in all time coming, it should be lawful for His Majesty's subjects to tailzie their lands with irritant and resolutive clauses, which should secure them against creditors and purchasers; and, 2 d, By
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The mere words of the Act therefore are sufficient, in my view of the matter, to make this out. But there are various considerations which should exclude the opposite construction, —even if the words were liable to any degree of ambiguity.
In the first place, the statute is confessedly a remedial or enabling statute, —and every presumption therefore is against a construction which would make it the instrument of imposing new disabilities,—and creating evils of the very same kind with those which it was passed to remedy. Its object was to enlarge the powers of landed proprietors,—and the evil it was intended to remedy was, their previous inability to secure the descent of their lands to their, heirs of provision, in spite of the claims of purchasers and creditors. And yet the effect of the construction in question would plainly be, to deprive them of the power to make a simple tailzied destination effectual against heirs at law, while it remained unaltered, or to enforce mere prohibitions by reduction of gratuitous deeds, without the hard necessity of also forfeiting the granters. That these were new limitations of the powers of landed proprietors, as they existed before the statute, cannot well be disputed; and I do not think their importance, or the consequent extreme improbability of its being intended to impose them, have yet been sufficiently considered.
Lord Fullerton has merely hinted, that if all tailzies were to be absolutely null, except those which had the statutory requisites, a simple destination to heirs not alioquin successuri, would be ineffectual to exclude heirs at law. But the proposition, which I take ot be incontrovertible in fact, is worth a little more consideration, as it seems to me sufficient of itself to exclude the construction against which I am contending.
All destinations to heirs of provision, who are not also heirs
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But the case in fact is substantially the same as to tailzies guarded only by prohibitions. Many proprietors may choose in so far to ensure the descent of their lands to their own elected heirs, in their order, who might yet be willing to leave them the power of onerously burdening or alienating them in case of necessity; and who might especially scruple unnecessarily to subject these favoured parties to the total forfeiture of their rights, in consequence of a mere conatus at a gratuitous and perhaps but partial alienation, which admitted of the milder and equally efficacious remedy of a simple reduction. Yet to this alternative, according to the construction now in question, all our proprietors were reduced by the Act 1685; though passed for the avowed purpose of enlarging their arbitrary powers over their property, and subjecting commerce, and onerous creditors, to great restraints and disadvantages, in order that these powers might be so secured and extended. I think every rule of construction, and every principle of law is against such a conclusion.
I will only add, that I have never been able to understand for what objects or purposes, either of general policy or particular convenience, it has been imagined that such a strange restraint could have been contemplated by the framers of the Act 1685. The powers previously enjoyed by landed proprietors, of naming heirs of provision, who would continue to succeed till excluded by the new settlement of a fiar in possession, or of guarding their succession by prohibitions, under which all gratuitous alterations might be reduced, were powers nearly akin to those which were secured, or for the first time given by the Act,—while they were liable to no part of the inconvenience
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No illustration, I think, can well be stronger than the case actually before us. But I shall conclude by stating one which now occurs to me, and which may perhaps put the extravagance of construing restrictions out of grants of enlarged powers, in a more familiar, if not a more striking light. Suppose that the provision of the Act of 10th Geo. III., c. 81, which empowers entailed proprietors to grant improving leases for a term of thirty-one years, had been expressed in the style and phraseology of the Act 1685, and had run thus,— “That it shall be lawful to entailed proprietors in Scotland, to grant leases of their entailed lands, and to insert therein covenants binding the tenants to make certain permanent improvements; and that, upon such covenants being so insert, the said leases should be good and effectual to the takers thereof and their heirs, not only for the periods permitted by the several entails of the granters, but also for such longer periods as might be therein expressed, not exceeding the term of thirty-one years from the date of entry; but declaring always, that such leases shall only be allowed where the said covenants are distinctly engrossed in the body thereof, before signing or entering to possession thereon.”
I think this a fair parallel to the provisions of the Act of 1685; and I shall merely ask, whether it would enter into the mind of any lawyer (or other person) to contend that, by such an enactment the former powers of entailed proprietors to grant leases for the terms allowed by their entails, would be
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F. Jeffrey”.
“I concur in the opinions of Lord Fullerton and Lord Jeffrey.
A. Wood.”
“We concur in the opinion of Lord Fullerton. The only part of that opinion on which we could have entertained any doubt was that which regards the extent to which the precedent of the decision of the case of Ascog in the House of Lords reached. For we are willing to yield to that decision as far as it goes, while, in so far as it does not bind us, we have not changed the opinions we expressed in that case, and concur with the views of the law of Scotland stated by Lord Fullerton. We are now, however, disposed to think that, whatever may have been the views entertained by the minority of this Court in that case, there are no sufficient grounds for holding that the decision of the House of Lords extended, in the case of Ascog, further than has been expressed by Lord Fullerton.
D. Boyle.
J. H. Mackenzie.
A. Maconochie.
J. H. Forbes.”
“I entirely concur in the opinions of Lord Fullerton and Lord Jeffrey; and, as those opinions are very full, and very satisfactory to my mind, I do not think it necessary to enter into the general argumen.
I have had occasion to express a similar opinion upon this which I had always understood to be settled law, in various cases which have been recently before the Court,—that, where
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I was well acquainted with the later case mentioned by Lord Jeffrey, Grant v. Dunbar, finally decided 15th November, 1816, and can fully confirm Lord Jeffrey's account of it. There was no irritant clause in the entail; and at first the party, believing that a real sale had taken place, was proceeding on a summons, concluding simply for having the price reinvested, although the case of Stewart v. Lockhart, on that point, had by this time been remitted by the House of Lords. But, in the course of the proceedings, the reality of the case
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In addition to the other authorities referred to by Lord Fullerton, I observe that, in the notes on Stair, attributed to Lord Elchies, the author, p. 110, in speaking of the effect of “an express obligement not to alter nor to contract debts, and how far the maker or any of the heirs of tailzie can make any deed to evacuate the succession,” lays it down substantively,— “And, in the first place, it's agreed, and very justly, by the author (Stair), that it cannot be altered by any gratuitous deed, and that such a deed would be reducible on the Act 1621.” This he holds decidedly as a settled point; though he goes on to speculate on the very different question, what shall be the effect of such an obligation in the case of sales being made, or other onerous deeds granted, where it is not fortified by irritant and resolutive clauses, in consequence of
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I am very clearly of opinion, that the judgments pronounced by the House of Lords in the cases of Ascog and Bruce, ought not to have any effect to lead to the conclusion here maintained on the part of the gratuitous donee. The principles on which those cases were decided, by the great lawyer who then presided in the House of Lords, have not, in my humble judgment, any tendency to impeach the general rule of the law of Scotland as to the effect of a clear prohibitory clause to prevent gratuitous deeds. But the distinction is so clearly explained by Lord Fullerton and Lord Jeffrey, and was indeed so emphatically taken by Lord Brougham in the case of Cathcart, that I think it quite unnecessary for me to enlarge upon it. To state it shortly, it just comes to this: In the one case, the entail has failed altogether in its purpose; the deed of sale or eviction has taken effect; the only estate entailed is gone, and cannot be recovered; and the entailer has given no remedy. In the other, the estate remains entire in the hands of a gratuitous donee, representing universally the heir of entail bound by the prohibition; and the simple question is, whether such a gratuitous donee can be allowed to take it from the heirs of entail, by virtue of a deed which is in violation of the conditions of his author's title.
James W. Moncreiff.”
“
The grounds on which such deeds have been held challengeable
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It has been, I conceive, demonstrated satisfactorily in the opinion referred to, that the efficacy of a settlement with a substitution of heirs, and a prohibitory clause to bar alteration of the succession, does not rest on the Act 1685, but on principles of common law and equity,—recognised in the law and practice of Scotland from the earliest period.
When a party takes an estate under a settlement, containing a substitution of heirs with a prohibition against alteration, he comes under a legal obligation not to alienate the estate by any gratuitous deed in favour of his own heirs, to take effect only after his own death. The rules of common justice and good faith forbid him to reject the condition on which the gift was conferred.
On that principle it was held, long before the Act 1685 was thought of, that whatever right an onerous disponee might acquire to a tailzied fee, from a substitute in possession, at all events no party could defeat the right of posterior substitutes by a gratuitous deed, placing heirs named by himself in the room of those appointed by the maker of the principal settlement, when he had expressly prohibited alteration. The estate might be attached by creditors,—or the heir might make an extrajudicial sale, to take effect inter vivos, which would involve him in no responsibility to the substitutes, as it is presumable that, when the entailer inserted no irritant or resolutive clause in his grant, he meant to leave the estate substitute to the onerous deeds and debts of the heir in possession. But the case is entirely different when the estate is extant and unsold, and when the substitution guarded by a prohibition against alteration, is attempted to be defeated by
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It is supposed that an alienation of that description would be annulled by our law, even when personal property is the subject of a special destination.
Take the case of a sum of money invested in the public funds, or in bank stock, or in any other establishment of deposit and investment, and that it were conveyed first to the favoured legatee, with a destination in the event of his death, before or after the testator, to a second and third substitute in their order, with a declaration that in case of the death of the primary legatee, without uplifting or onerously burdening the fund, it should go to the posterior substitutes in their order, or their issue surviving,—the law, it is apprehended, would enforce such a destination, and prefer the substitutes of the original testator to the gratuitous legatees of the prior substitute, at least so long as the fund was extant, and invested in the security conveyed by the settlement.
But that is not a mere hypothetical case. Many questions arose on bonds for money, made payable to a series of substitutes, at an early period of our law, and, at all events, prior to 1685.
Thus, the case of Grahame against the Laird of Morphie, in 1673, is reported under this summary in the Dictionary (p. 4305):—
“A bond of provision was granted to children in these terms,—“That in case they died unmarried or within year and day thereafter, that the sum should return to the granter's heir, and that they should make no assignation or other right in defraud of his heir.” This clause was found to import that the children could do no gratuitous deed, but that it did not hinder them to uplift for necessary causes.”
In 1674, the summary of the decision in the case of Drummond against Drummond (p. 4306) is to the following effect:—
“A bond payable to the creditor and certain heirs of tailzie
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contained this clause, that it should not be lawful for the debtor to make payment without consent of one of the heirs of tailzie. Payment being made without such consent, the same was found unwarrantable; and the debtor was ordained to grant another bond in terms, of the former, without prejudice to the creditor, to declare in a process that the sum should be affectable by his creditors, or be disposed of by himself for his necessary uses.”
To these may be added the following cases to the same effect, reported under another section of the Dictionary:— Stewart, 24th June, 1669 ( Dict., p. 4337); Drummond in 1679 (p. 4338); Scot, in 1683 (p. 4341); College of Edinburgh, in 1685 (p. 4342).
As a contrast with the preceding cases, reference may be made to that of Strachan and Barclay, in which the species of alienation sufficient to affect a destined fund, was clearly defined. Colonel Barclay had granted a bond to his nephew James Sinclair, for £900 Scots, on which the granter's son (Robert Barclay the Quaker), having been sued, “the Lords found, though the bond expressly secluded Sinclair the creditor's assignees, and was provided to return to the debtor, in case Sinclair the creditor should have no children lawfully begot, yet he might assign it for so onerous a cause as the payment of his aliment, as he might have uplifted it, or his creditor might have affected it; and therefore, before auswer, ordained them to condescend and prove how long and by whom he was alimented.” The proof failed, and Barclay was afterwards assoilzied; but the case appears to have been discussed with some interest at the time, as sufficiently appears from Fountainhall's curious report of the final discussion.—See Dictionary, p. 4311—12.
If these, however, were the rules which governed the succession of tailzied funds, it is obvious that they are still more applicable, and entitled to effect in settlements of land. There
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“A person being decerned by decreet-arbitral to tailzie his lands to another, after expeding charter, and taking sasine in terms of the charter, sold the lands to a third party; the sale was sustained, in respect the decree-arbitral bore no prohibition against selling, and no fraud on the part of the seller was qualified.”
The next case (Binny against Binny, in 1668, Dict., p. 4304,) is thus abbreviated:—
“A woman bound herself to resign certain lands in favour of herself, and the heirs of her body; whom failing, in favour of her brother, and to do no deed in prejudice of his succession. After inhibition was served on this deed, she married, and disponed the lands to her husband. This disposition was reduced, as being in prejudice of the brother's succession.”
It is evident that that decision was questionable, as, in later cases, a disposition by a bride to her intended husband, on an antenuptial marriage-contract, has been held to be onerous in respect of the provisions accruing to herself, on the completion of the marriage. That, however, does not affect the principle of the old decision, when that species of alienation was viewed as gratuitous.
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“Part of the family estate of Douglas being given away to the heir of a second marriage, and the heirs of his body; which failing, to return to the right heir of the family of Douglas,” it was found, that “this estate could not he gratuitously alienated in prejudice of the clause of return, it being argued, that here the proprietor was giving away an estate from his successors for a special use, in which this reasonable condition is implied, that, when the use is at an end, himself or his heirs should have back the estate.”
It is unnecessary, however, to multiply the citation of cases; “they are all, without a single exception, to the same effect, rejecting gratuitous alienations by mortis causa deeds, which is truly just a new and voluntary substitution of heirs by a substitute, to the prejudice of a subsisting and unexhausted destination.
Upon these precedents, and on the principles of law on which they are founded, every institutional writer, for nearly two centuries,—from Sir George Mackenzie to Professor Bell,— all concur in holding that a disposition, with prohibitions, is effectual to bar gratuitous alienations. The quotations from the works of Sir George Mackenzie (whose Institutions were published about 1680) and from Lord Stair, Bankton, Erskine, and Mr. Sandford, being all cited at length in the case for Mr. Carrick Buchanan, (p. 12—16) are so complete as to supersede any repetition here. There never was a point more completely settled and put to rest in the law of any country, by the consentaneous opinions of all the institutional writers, than that now under discussion. The legal doctrine applicable to the whole case is clearly and accurately condensed in the words of Professor Bell ( Principles of the Law of Scotland, published in 1839, page 620),—“The form of an entail,” “says he, with such prohibitions and restrictions, is not different
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It is quite unnecessary to add anything to the exposition given by Lord Fullerton as to the origin and object of the Act 1685, here referred to by the learned Professor. That statute, looking to the age in which it was passed, was devised to gratify the feelings of proprietors for the permanency and hereditary transmission of their estates, and, with that view, clauses were framed to protect them from attachment by, and alienation even to onerous creditors. From the Scots system of land rights, however, and particularly from the registration of all titles of property, and of heritable securities, established with us since 1617, it was a matter of great legal difficulty to place an estate beyond the reach of creditors and purchasers. That was at last effected by the registration of tailzies with irritant and resolutive clauses, voiding the right both of creditors and proprietors who contravened the clauses of the entail. But that statute neither did give, nor was meant to give, any privilege to gratuitous rights, especially when granted by mortis causa deeds, which they did not enjoy before. There were no considerations of public policy which rendered it necessary to change the old law as to them, and to give a more extended effect to gratuitous and testamentary rights, than previously belonged to them at common law.
It is not surprising, with reference to a question depending on principles of law and equity, so clear in themselves, and ruled by such a host of authorities early and late, many of them prior to the Union, that few examples should occur, of any appeal to the House of Lords, of modern date, as to the effect
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The preceding case is an important authority in this discussion, as the entail was such as to be quite insufficient against onerous creditors; it having been found in the case of Garnock, a few years afterwards, (28th July, 1725; Dict., p. 15,596), that a general reference in an heir of entail's sasine to the prohibitory and irritant clauses, as recorded in the former charter and infeftment “ is not sufficient to interpel creditors, according to the Act 1685.” But the Rutherford entail, though ineffectual against creditors, was sustained in this Court and the House of Lords, as against gratuitous disponees.
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But although there have been few cases since the Union in which any party has claimed a right openly to defeat a subsisting destination, protected by a prohibition against alteration, by a gratuitous deed to take effect inter hœedes, it humbly appears to me, that the acknowledged incompetency of such alienations has formed one of the chief grounds for a rule in the law of title, now firmly established in a variety of wellcontested questions. I allude to the determinations in cases of double title. When parties, having two titles in their person to the same estate, one entirely unlimited, and another more or less limited, as the case may be, it has been long settled that, in the case of two unlimited titles, the party is held as possessing on both; but if one be limited, (even when the restrictions fall far short of a strict tailzie), and the other unlimited, the possession is ascribed to the investiture in fee-simple only, so as to extinguish the limited title by prescription, whereby the right of all those who, before the prescription has run, might have been entitled to claim under it, is cut off. It is well known that the law, in that class of cases, has been established by decisions both of this Court and the House of Lords no longer open to question.
Thus the case of Douglas of Kirkness against Belches, in 1753, is reported under the following summary in the Dictionary (p. 4350):—“A charter was granted, containing a clause of return. A subsequent charter (one of renewal of
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Now, on what ground could that decision proceed? The limited title, there presumed to be extinguished, was not a title constituted by strict tailzie, but it was a simple grant, containing a clause of return, a limitation, notoriously ineffectual against third parties onerously contracting, but imposing a valid restraint against gratuitous alienations, by heirs possessing under the original grant. That was considered a limitation fit to be wrought off by prescription. Almost contemporaneously with the preceding decision, it was found, that “a clause of return in a vassal's charter is not good against an onerous purchaser.” (July 31, 1759, Johnston against Marquis of Annandale, Dict. p. 4356). Hence the titles held to be extinguished by prescription generally contained restraints, only effectual against gratuitous settlements by heirs in possession. The present case is analogous, as the question here turns on a prohibition against alteration of the order of succession, proposed to be held in operation against onerous alienations, from defect of an irritant clause, while the destination and prohibition are alike clear and incontestable.
The case of Douglas has been sanctioned by a long train of decisions uniform in their import and effect. The converse of Douglas's case had been decided a few months before, in the well known case of Smith against Bogle and Gray, reported by Lord Kilkerran ( Dict. p. 10,203), which is still held of the highest authority in practice. It was there determined, that when a party and his predecessors have possessed on two titles, both equally unlimited, his possession must be ascribed to both. And on that principle the case of Durham was decided in this
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The latest case on the subject is that of Paterson and Campbell, decided in the House of Lords in 1823 (1, Shaw's Appeal Cases, p. 101), where an imperfect entail, prohibiting alteration of the order of succession, but wanting an irritant clause, was held to be extinguished by a different settlement made by one of the heirs, which was followed by possession for the years of prescription. The latter settlement, however, was evidently sustained, solely in respect of the prescription.
According to the plea of the appellant, however, in the present case, these decisions proceeded upon a needless and false apprehension; if a gratuitous settlement may be made by any heir in possession under every limited title, short of a strict tailzie, he has already all the rights of a fee-simple proprietor. The appellant's proposition appears to be, that no prohibition, however express, against alteration of the order of succession, if not fortified by the irritant clause of a regular entail, can prevent an heir from transmitting an estate gratuitously to his own heirs, in preference to other substitutes appointed by his author. In that view, he does not require the aid of prescription to give him all the rights of the most unlimited proprietor. His alienation is as good before his fee-simple title is fortified by prescription as after it. It is apprehended that this is a doctrine as much at variance with the whole authorities in the law of Scotland as it is with the universal understanding and practice of the country.
It appears to me equally clear that the question is not ruled by the decision in Ascog;—in fact the present is the converse of that case. In Ascog, the estate, from the defect or peculiarity of the entail, was permanently and effectually alienated to an onerous purchaser, whose right, on public and statutory grounds, could not be disputed. Hence it never could be vindicated in forma specifica. The Court of Appeal, therefore, held that damages
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It is true that the prohibition here is not accompanied by an irritant clause, because such a clause is only required by statute to exempt an estate from onerous acts and deeds of the heir; while at common law no irritant clause is necessary to secure a prohibition against gratuitous or fraudulent alienation. If the estate should be sold for an onerous cause, the seller will not be liable in damages for using a right left open to him by the granter. But it does not follow that a gratuitous deed must be effectual because an onerous one would have been unchallengeable.
In every view, therefore, which I can take of the present case, I concur in the opinion of Lord Fullerton, on the following grounds:
1 st, The attempt of any heir of destination, where alteration is prohibited, to defeat the right of posterior substitutes, by a gratuitous and undelivered deed, to take effect only after his own death, seems to me to be contrary to principles of common law and equity, entitled to the utmost regard in the adjudication of such rights.
2 nd,The invalidity of gratuitous settlements by heirs possessing on similar titles with that under which the defender's predecessor took up the estate now in question, has been fixed from the earliest period of our law, by a series of authorities, of unusual number and uniformity, — which it would neither be just nor safe for a court of law now to depart from.
3 rd, The determination in the case of Ascog, having been
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J. Cuninghame.”
“
As a fundamental proposition, it cannot, I think, be disputed that the Statute 1685 “makes no alteration in our common law with respect to the transmission of land property” (Kaimes's Elucid., art. 42, p. 345). A man may still convey his estate simply or sub conditione. And if sub conditioner the condition, if not illegal in itself, will be binding upon the party who accepts subject to the condition, and upon the heirs and representatives of that party, in so far as the law holds them generally liable for his obligations.
It is a different question whether the condition, thus effectually imposed upon the grantee and his representatives, shall likewise be operative and effectual as against third parties, strangers to the grant, and over whose conduct and rights the granter had no power. But if the condition, lawful in itself, be such also as the law holds capable of being imported into the grant as a real quality of the right,—and if, moreover, it be de facto in due and competent form perfected into the full measure of such real quality,—it will in that case, as is familiar to every conveyancer, be operative and effectual even as against third parties.
This distinction,—between what is in obligatione tantum, and so to be enforced only through the persons liable in the obligation,—and what has already passed into completed real right, and so stands good against all and sundry, even onerous third parties extra corpus juris,—enters deeply into every question connected with the transmission of land titles at common
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The very discrimination, which has constantly been made between what are termed strict entails and those of a less perfect description, proves how little it has entered into the contemplation of lawyers to hold,—that no species of entail could avail to any effect except the former,—or that a deed conceived in favour of a certain series of heirs, and imposing upon these heirs, as they respectively come to succeed, certain obligations as the condition of their right, should have no effect whatever, even inter hæredes, unless the statutable formalities of the Act 1685 had also been rigorously attended to. There are many conditions to which the enactments of that statute would have no application. But, independently of this, it has passed into a sort of proverb, to speak of the remoter heirs, whose interests would be affected in cases of mere prohibition,or other personal condition, as being ‘ creditors among heirs, though but heirs among creditors.’
Accordingly, what gave rise to the Statute 1685 itself, was not any difficulty of dealing with the legal effect of such conditions, as in a mere question inter hæredes,—but the difficulty of converting what was undoubted matter of personal obligation binding upon these heirs, into matter also of real right qualifying the extent and character of the estate itself, and so entering into and becoming parcel of the radical title or investiture, in a question with onerous third parties.
The notion was, that it was, somehow, inherently incompatible with the very nature of dominium or property, that one should be proprietor, and yet that his deeds executed in that character should not be operative, so far at least as the estate
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It is very plain, however, that this,—which was wholly unnecessary, except as a cure for one particular evil,—did not, and could not touch what had till then been attended with neither doubt nor danger. The statute was directed to legalize the creation into real rights of certain limitations upon the rights of property, which, it was thought, the common law, by itself, might be too weak to effect. But the law of personal condition or obligation, in so far as it did not require for its binding power, to be converted and perfected into this full measure of real right, remained as before. And, therefore, though the statute was required to protect the estate as against onerous third parties, the common law continued to possess
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In this point of view, the matter is well explained by Lord Kaimes, Elucid. p. 340;—“A man may bind his heirs, by prohibiting them to alien, or contract debt; but he cannot prohibit one to purchase from his heir, or to lend money to him, because a purchaser or creditor is not subjected to his authority. A penalty annexed to the prohibition, such as a forfeiture of the heir's right, will affect him ( the heir); and upon a declarator of irritancy will deprive him of the estate. And yet, as he continues proprietor till a decree be pronounced in the declarator, his alienations must be effectual, as well as debts contracted by him.” And again (p. 346,)—“A tenant in tail is subjected, by his own consent, to the prohibitive and irritant clauses; he accepts of the estate under these conditions. All others are subjected by the statute, discharging them to lend money to a tenant in tail, or to purchase his land. Hence, no deed done contrary to these prohibitions is available in law; with respect to the tenant in tail, it is voidable as a transgression of his engagement; and with respect both to him and to the persons he contracts with, it is voidable as a contempt of legal authority.”
If it were true, that nothing short of an entail, completed in strict terms of the statute, could affect heirs, any more than it does creditors, such a rule ought to operate universally, and there could be no exceptions to it. But there are many.
1. A separate obligation binding the party not to grant any deed whereby the destination might be affected, is admitted to be operative. Indeed, this is just the case of Ure v. Crawford, the authority of which has been conceded upon that very footing. But why should a separate obligation avail more than an express prohibition inserted in the body of the right? If the question were with an onerous third party, the separate obligation would be just as inoperative as the other.
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(2.) Take next the case of destinations in marriage-contracts. And here it will be found instructive to mark the distinction, which Erskine so emphatically explains, between settlements “so drawn as to give the heir a proper right of fee in the land estate,” Ersk. iii. 8, 40; and those where “the heir's right is not a right of proper credit but of succession,” Ibid. sec. 39. In the former, the father can execute no deed, whether onerous or gratuitous, in defeasance of the child's right, and he may be interpelled, by the ordinary diligence of the law at the child's instance, in protection of his right. But in the latter, the child being not in the strict sense a creditor, but only an heir of provision, “cannot come in competition with the father's onerous creditors,” and cannot use inhibition or other diligence, so as to enforce his own rights, or disturb the father's powers of administration, and is in short, in every point of view, substantially in the same position as that wherein a substitute heir of entail stands, in a question inter hæredes, with reference to the rights of the heir in possession. Now here, independently of the Act 1685, it is undoubted law, that the marriage-contract, though wholly unavailing against onerous creditors, or against a disponee for onerous causes,—is yet effectual to “restrain the father from gratuitous deeds to the prejudice of the heir of the marriage.” And why is this, but that imperfect in some respects as the obligation of the father is, it still infers an obligation, in
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It has been observed, that a marriage-contract is a contract uberrimœ fidei, and entitled to the most liberal interpretation; whereas an entail is strictissimi juris, and all construction by implication excluded. Now, no doubt this would be a good answer, wherever it requires any argument on implication, or any strained construction of the deed, to establish the existence of the obligation supposed to have been laid on the heir of entail. But, on the contrary assumption, that the obligation is in itself clear and express, requiring neither presumption nor inference, nor implication, to make it out, the answer has no force. The question is, what is to be the effect of the obligation—as an obligation clearly and confessedly imposed? Is it not to be good inter hæredes, if the deed declares the heirs to be bound? Or, however expressly so declared, is it to be bad even inter hæredes, simply because not fortified and converted into a real quality or condition of the right by attending to the statutable requisites of the Statute 1685?
(3.) Take another case. If it be enough to deprive an entail of all efficacy, that the statute has not been followed out, how comes it that an entail which has never yet been feudalized is notwithstanding good, not against heirs merely, but even against creditors? Yet, unless where the heir is alioquin successurus, so as to afford him a separate title of possession through which creditors can attach the estate under his apparency, it is undoubted law, that so long as the entail rests upon mere personal title its conditions will be effectual against all and sundry. In such a case, neither creditors nor purchasers, any more than heirs, “could object to their being barred by every
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It is impossible to conceive a case more wholly out of the protection of the Act 1685 than the one here put. And the inference necessarily is, that there may be obligation legally enforceable, independently of that statute. The statute to be sure, is indispensable, in order to give the full efficacy of a real right to the conditions of the entail. But wherever there is a party against whom the mere existence of personal obligation is, per se, sufficient, it is not necessary to go farther. In this very question, if the deed of entail had stood unfeudalized, the conditions imposed by it would, upon the authorities referred to, have been, without any aid from the statute, a good answer, even to creditors. A fortiori, then, must this be the case in a question inter hæredes. And if the unfeudalized deed would have been sufficient for this purpose,—although, after feudalization, any mere personal conditions would no longer be of efficacy in a question with creditors or purchasers, because such parties, whether under the statute or at common law, when dealing with a proprietor infeft, can only be affected by what amounts to real right,—surely, in a question with heirs, who, as regards the operation of real right, stand in a totally different predicament, feudalization could never weaken, much less undo the binding force of the previous obligation.
(4.) An entail regularly feudalized, but not recorded in the Register of Entails, affords another example where, though in respect of the statute unavailing against creditors, the conditions of the entail, as inferring personal obligation, are still
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(5.) Other illustrations might be drawn, from the effect of a partial burdening or sale of the lands, where, (as is well known,) although, from defect in the irritant clause or otherwise, the real debt or sale itself may stand good to the onerous third party,—the very success of the act of contravention affords ground, as against the offending heir, for the forfeiture of all that remains of the estate, under the unaided operation of the prohibitory and resolutive clauses.
But it is needless to enlarge. The sum of the whole matter comes to this, that it is not requisite in the case of entails, any more than in the case of other conditional grants and conveyances, that the conditions of the right should extend beyond the mere matter of personal obligation in order to their being binding and operative, in a question with the grantee and his heirs. No doubt, where the conditions of the entail are not perfected into matter of strict real right, the existence of mere personal obligation will not secure them from being defeated, as in a question with onerous third parties. But this is not peculiar to the case of entails. For, in no case whatever, unless where the proprietor's own right happens to be still unfeudalized, (in which case assignatus utitur jure auctoris,) is the real estate or its investiture held to be affected by any mere obligation personally incumbent on the individual. Hence, indeed, the whole doctrine of real rights, as rested in the ordinary case on infeftment and registration. The only difference in the case of entails is, that in order to complete the real right peculiar to that category (where this is necessary), there must, in addition to infeftment and registration, be interponed the solemnities also of the Statute 1685.
Upon the whole, therefore, while I am quite prepared to
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J. Ivory.”
“The Judgments pronounced in the House of Lords in the cases of Ascog, Bruce, and the Marquis of Queensberry, rest on one ground at least, to which no answer was made at the time when the case was decided, and has never been controverted since, that, where an estate, held under an imperfect entail, has been sold, the Court cannot, by finding damages or otherwise, make new entails, which the entailer never contemplated, and of estates which he never had, and that as often as the heir in possession may choose to sell them. That has no bearing on the case where the estate remains, and where the question is, whether a conveyance, made by a mortis causa deed entirely gratuitous, has the same effect as a sale to a third party. The argument of Lord Fullerton, confirmed by the opinions of Lords Moncreiff, Jeffrey, and Ivory, expresses fully and clearly what I have always considered to be the law applicable to such cases. Lord Cuninghame has referred to the law of prescription as applicable to fee-simple and limited titles. The decisions which have established and regulated that doctrine could not have been pronounced unless entails had been held to be valid inter hœedes, which were not effectual against creditors under the Statute 1685. I know that Sir Hay Campbell, and other great lawyers, attached the greatest importance to those decisions, which show that this distinction between entails valid under the statute, and those which constitute an obligation inter hæredes only, is not one which rests on insulated decisions or authorities, but is interwoven
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John A. Murray.”
The cause was set down for hearing upon these opinions, and was again fully argued, as well on the construction of the entail as on its efficacy in questions inter hæredes, by The Lord Advocate and Mr. Anderson for the appellants, and Mr. Kelly and Mr. G. G. Bell for the respondents, but every argument and authority used on either side, was anticipated in the voluminous opinions delivered by the Judges below.
But the respondent brought an action of reduction of this disposition and this sasine, as next heir of entail, under the settlement executed by Robert Carrick, of Braco, on the 18th of July, 1820, and recorded on the 20th of November, 1828, contending that Thomas Carrick, the disponer, possessed the estate under the tailzie so executed, and that it was fenced with proper clauses, prohibitory, irritant, and resolutive, to prevent his altering the order of succession. This action, therefore, brought in question the validity of the tailzie.
It was determined by the Lord Ordinary, and afterwards by the Lords of the First Division, that the disposition was effectually struck at by the entail, and therefore must, with the service which had followed upon it, be reduced. An appeal
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In obedience to this remit, their Lordships of the First Division, having consulted those of the Second and the permanent Lords Ordinary, reported the opinion of the whole Court to this House, in answer to the question by your Lordships submitted to them. This answer is in the affirmative, by all the learned Judges except one, the Lord Justice Clerk alone considering the entail as insufficient to prohibit a gratuitous deed altering the order of succession, on the supposition of the irritant clause itself being invalid and insufficient.
The whole question now comes before us, and it is very material in the first place to observe that no opinion whatever was given, and none was formed by this House, upon the preliminary question whether or not the irritant clause is valid.
[
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Now this second point is really very important, and it is material therefore that there should be no doubt left upon it; and I am rather surprised, and a little grieved, that there should have been any doubt thrown upon it by so high an authority as the Lord Justice Clerk, for my opinion is perfectly clear and decided with the rest of the Judges. As Lord Thurlow once said, in a similar case, there is not even a probable argument upon the subject—there is not even a point on which to hang an argument —and it is very important to the entail law of Scotland that there should be no doubt left upon the point when none exists.
First there appears, when the whole structure of the tailzie is closely considered, no ground for denying that the irritancy strikes at the acts of the institute. I certainly at first had a doubt and partook of the inclination of opinion which has been expressed; but upon closely considering it, I think there appears to be no reasonable ground for denying that the irritancy strikes at the acts of the institute. There may be some obscurity occasioned by the needless repetition with which the clause abounds,
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It is to be observed, as a sure foundation whereupon to build, that the prohibition plainly affects the disponee, the institute, in the most precise terms, viz., by naming him. This is very material, on account of the reference afterwards made, in terms equally express, to that preceding part of the instrument. Not only is he by name prohibited from “contracting debts or granting deeds,” “whereby the lands and estate may be evicted or the said lands and estate and the heirs of tailzie succeeding thereto, may he anywise affected,” and not only are all such deeds so granted declared null and void, both as affecting the estate and the heirs of tailzie, but there is an express prohibition against the institute, by name “George Carrick,” which should be “Thomas Carrick,” altering the order of succession; and then in case the prohibition of the granting of deeds and the irritancy following upon it should be held insufficient, from the nature of the essential word “affect,” to prevent altering the order of succession, another word immediately follows, upon which the main question here is raised. It begins as a resolutive clause, declaring that if the institute, by name George Carrick, or any heirs of tailzie, or heirs whatsoever, shall fail to observe any one of the aforesaid provisions, or “ shall act contrary to the prohibitions, or any of them,” all of which were levelled at George Carrick, “then the contravener, either by failure, or acting contrary, shall forfeit and lose, and the estate go to the next heir, as if the contravener were dead.” And then it proceeds to declare further, that upon every such contravention, failure or neglect, not only the “estate shall not be burthened or be liable to the debts and deeds of the several heirs of tailzie, and heirs whatsoever, as before provided.” Now, on this, much doubt would have arisen had the declaration stopped here, because mention is only made of debts and deeds of heirs of tailzie, and it might have been said that these are not debts and deeds of the institute, who
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Now, this being as general an irritancy as can be imagined of all acts done, and deeds granted, contrary to the preceding prohibition, and that preceding prohibition having been levelled at the institute by his name of George Carrick, this irritancy must be considered as an irritancy of the acts and deeds of contravention done or granted, the acts done or deeds granted by the institute George Carrick.
But then it is said, and this really is the sum of the appellant's objection, the words which follow declaring the other heirs of tailzie not to be affected, are sufficient to restrict the first mentioned words to contraventions of the substitutes, because the institute not being an heir of tailzie, could not be referred to by the contradistinguishing word “other,” because when we say “the institute and the other heirs of tailzie,” it is said, if it is doubtful what you have done before, the word “other” shows it not to apply to the institute, but to the heirs of tailzie. But this will not do; for first, besides declaring that the other heirs of tailzie shall not be affected, the clause declares substantively that the contravening acts and deeds shall be of no force, strength, or effect—not, of no force as against the estate, not, of no force as against the heirs, but absolutely of no force, strength, or effect; and what follows, being wholly needless, a sufficient irritancy having been declared by these words now last cited, may be rejected as surplusage.
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“The person who commits the awful and abominable sin of heresy contraire to the laws of God and all other human laws.”
Now, the argument here would be, that that shows that the laws of God are human laws, just as it is said that “other heirs of tailzie” shows that the institute before named is an heir of tailzie, and not an institute; but it only means all other laws, to wit human laws. Thirdly, the clause goes on to declare, that the succeeding heirs shall, as well as the lands, be free therefrom, that is, from the deeds and acts of contravention, as if the same, repeating the extensive words “debts, deeds, or acts,” had never been contracted, granted, or done.
The introduction of this word “other,” the pivot on which the argument against the entail turns, was probably owing to this, that no contravention could possibly affect the institute so as to require a saving of his rights. Any substitute contravening could only affect other substitutes, and the substitute contravening could, of course, not affect his own right, except by way of forfeiture; there was nothing therefore to guard him against.
It is unnecessary to examine the cases to which reference has been made in the course of this argument. The affirmance of the judgment below upon this first point does not in the least degree tend to impeach any one of the cases now held to be law, and to govern the jurisprudence of Scotland respecting entails, nor is it a deviation from any of them. How vain, for example, is it to contend, that there is any possible resemblance between this case and Lang v. Lang, which was very much argued upon?
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It therefore appears, that the irritancy being validly framed, the judgment appealed from must be supported; and it becomes unnecessary to deal with the other point, the second question before us—whether or not, if the irritancy were ineffectual, the prohibition is of itself sufficient to prevent a gratuitous deed? But as we have directed the Court below to deal with this point, and as its decision may affect, and indeed does affect other cases, we may as well dispose of it also.
It seems to be a position removed from all reasonable doubt, that an entail, though not sufficiently fenced by irritant and resolutive clauses, and by registration in the Record of Tailzies, may, nevertheless, if it contain a prohibition against altering the order of succession, protect the estate from being carried away by a gratuitous deed from the heirs of entail, called to the succession one after another. It is to be observed in the outset, and with reference to the question alone now before us, the effect of the Braco entail on the deed of disposition of the institute, disponing the lands to himself in fee simple, that this is not in any sense a gratuitous deed of alienation; it is no alienation at all, but a deed, the only object of which was to carry the estate after
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It appears very difficult to read the Act of 1685, and not be persuaded that it applied much rather to the rights of third parties, of parties who had given a consideration for the title given by the heir of entail, than to volunteers. The frame of the enactment seems not only consistent, with this supposition, but to support it. The king's subjects are told that they may now tailzie their lands, and affect them with such clauses as shall be good against all singular successors. But further, the condition annexed is of a most peculiar application to the rights of such parties, third parties, because it is, that the whole instrument shall be recorded in a particular register created for the purpose. Why? For what purpose? To give all parties warning, that they deal at their peril with a person possessing lands under an entail. The clauses, too, must be inserted as often as any step is taken in the title; they must be made public in the Register of Sasines each time any one of the series of heirs of provision succeeds to the preceding heir of tailzie.
It is quite impossible to regard an Act so framed as abrogating the common law right which fee simple proprietors of estates had to prescribe the order of succession in which their lands should go, as far as regarded the rights and objects of the heirs successively taking under their settlements. This Act is clearly not a restraining Act, but an enabling Act. It goes to enlarge, not to restrict, the right of irritancy. It had even been held in one case, I mean the Stormont case, about twenty years before the Act, that such fencing clauses would avail against purchasers at common law; and the authority of Sir Thomas Hope may be cited in favour of that doctrine prior to the Stormont case. But the sounder opinion was the other way, and the higher authority of Sir George Mackenzie (higher, because he is believed to have framed the Entail Act of 1685) may be appealed to for the
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The authorities are all the same way. It may suffice to mention the case of Logan v. Drummond, which Lord Monboddo, who reports it, says turned wholly on the question whether the deed was onerous or gratuitous,—the prohibitory clause having sufficiently struck at gratuitous deeds, as was admitted on all hands, but especially the case of Grant v. Dunbar, in which an attempt having first been made to obtain reimbursement of the purchase money, on the ground of the sale being onerous, the party relied on its being gratuitous, and so void without any irritant clause. The Court held such deed to be clearly void.
But it is said that the decision of this House in the Hoddam case affirmed the principle of gratuitous deeds being valid, if only prohibited without any irritant or resolutive clause. I gave that decision, and therefore I think I know what the meaning of it was. I am astonished to see the Lord Justice Clerk citing that case: it has no application whatever to this; he might just as well cite Shelley's case. The point never was in any way before us; the question never was raised at all, either at the Bar or by the Bench; and surely no one who, with ordinary calmness and
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It seems very certain, that were it not for the judgment of this House in 1830 upon the Ascog and Tillicoultry cases, we should have heard little of the argument now maintained for the
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In the Ascog case, the estate was gone by a sale which could neither have been prevented beforehand, nor rescinded after it
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A fact stated by Lord Murray deserves much attention in
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My Lords, I have one observation to make, and which shall be a very short one, respecting the printed papers in this case and the last. I see in one instance, particularly where the question is reduced to the narrowest compass as regards authorities, the learned persons who framed the papers go into the whole useless, superfluous, prolix statement of all the principles of the law of entail, from the Duntreath case, from the Tillicoultry case of 1799, downwards; and they enter upon page after page of print, to the great expense of their clients, or of those who have to pay. There is no doubt, that if they are appellants they will have to pay themselves; but if costs should be given against some of the respondents, those respondents would have to pay for it. They enter into these matters in the most useless way, because nobody doubts these principles of entail law now. We have been having them year after year for the last forty years. They are just as well known as that two and two make four. The parties ought to confine themselves to the point in the cause: and they very often miss the real point in the cause, by entering into a great number of other points that are not in the
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Upon the other point I have no doubt whatever, that by the law of Scotland a deed of entail, with prohibitory clauses, is binding inter hæredes without irritant and resolutive clauses. And I must say in this case, without meaning the smallest possible disrespect to the Lord Justice Clerk, that my concurrence with the other learned Judges is strengthened by having read his most elaborate and most learned argument on the other side; because that shews, that all that profound learning in the law of Scotland, extreme ingenuity, and unwearied industry can bring forward to shake that doctrine, has no effect whatever. It seems to me, my Lords, that the only plausible argument that can be urged against the doctrine arises from the Ascog and Tillicoultry cases. But the points in those cases and in the present are wholly dissimilar, because it may very well be that the heir of entail, after an alienation for value, may have no interest at all in having the proceeds reinvested to the same uses, no right to have them reinvested, and no legal remedy to enforce any such right, and yet that if there be an entail with prohibitory clauses, inter hæredes the deed shall be binding. The Tillicoultry and Ascog cases I had the honour to argue. I was on the winning side. I had a very strong opinion indeed in favour of the doctrine that I had to contend for, which was so strong, that even my noble and learned friend, I believe, felt at the time, or at least, he now feels, that it was utterly impossible that he should prevail. But we have here an entirely different entail.
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Ordered and adjudged, That the petition and appeal be dismissed this House, and that the Interlocutors, so far as therein complained of, be affirmed with costs.
Solicitors: Deans, Dunlop, and Hope— Richardson and Connell, Agents.
