United Kingdom House of Lords Decisions

Subject_Entail — Prescription — Registration — Entail by reference —

Two entails were executed with reference to the lands of H—the one in 1704, and the other 1730. The first deed reserved full powers of alteration in favour of the entailer, who was also the maker of the second deed. The second deed was inconsistent with the first, and was not recorded in the register of tailzies. The investiture subsequent to 1730, and all following titles, were based upon the second deed exclusively, unless it were held that a clause of reference which it contained to the first deed were sufficient to make that deed the basis of the title.

Held (affirming judgment), that the clause was insufficient for that purpose; that the second deed must be taken as the sole basis of the investiture from 1730 downwards; and that the first deed having remained unfeudalized for upwards of 40 years, while the second was never recorded, the lands were not subject to the fetters of entail. ¹

The defenders appealed against the interlocutor of the Court of Session of 18th Nov. 1851, maintaining that it ought to be reversed—1. Because the mutual bond of tailzie of 1704 was the original entail both of Dumbarnie and Halhill, and was duly recorded, and the respondent possessed under titles engrossing restrictions prohibiting sale, &c., conform to that recorded deed. 2. Because the conveyance in the marriage contract of 1730 was propulsive of the fee, and was made under conditions, the same substantially as those in the deed of 1704, and conform to that deed, and did not therefore require to be recorded in the register of entails. 3. Because the marriage contract of 1730, and crown charter of 1731, did not impose cross forfeitures on the two estates, and could not effectually have done so, without the running of a prescriptive period, which the sale of Dumbarnie in 1754 prevented.

The respondent supported the interlocutor on the following grounds—1. The respondent and

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¹ See previous report 14 D. 54; 24 Sc. Jur. 17. S. C. 25 Sc. Jur. 397.

Page: 242↓

his predecessors having possessed the lands of Halhill and others for a period greatly exceeding forty years, under the entail in the marriage contract of 1730, which was not recorded in the register of tailzies, and was essentially different from the previous entails, it became the basis of a new prescriptive investiture, under which he was entitled to sell the estate. 2. The disposition of tailzie of 1704 is not a valid and subsisting entail, so far as regards the lands of Halhill and others, sold to Mr. Rintoul, in respect it was never followed by infeftment or feudal investiture, or acted upon in any way.

Lord Adv. Moncrieff and Turnbull, for appellants.—The respondent has no power to sell the estate of Halhill, which he holds under the entail of 1704. The marriage contract of 1730 was not a new entail, but contained substantially the same destination and the same fettering clauses as the deed of 1704, which clauses are easily reconciled by the rule— applicando singula singulis. It is clear that John Craigie the elder, of Halhill, did not intend to create any new entail by the deed of 1730, for the entailing clauses of the latter deed conclude thus—“conform to the bond of mutual taillie” of 1704—which means, that the bond of 1704 was the warrant and origin of those provisions and conditions. There are, no doubt, two slight variations—one where the power of leasing is extended; but inasmuch as this was in effect only a release from fetters, it would not require to be separately recorded in the register. The other variation is, that the heirs of Halhill are required to assume the name and arms of Dumbarnie; but this cannot be relied on as an indication of intention to supersede the prior entail. It is said that the deed of 1730 was a new entail, because it contained one set of fettering clauses applicable to both estates, and thus that a forfeiture of one would be a forfeiture of both. But we contend that these fetters must be construed applicando singula singulis, in which case the two deeds are quite reconcileable—as was done in the Gartmore case, Bontine v. Graham, 13 S. D. 905; 1 Rob. App. Ca. 347. This case differs materially from the Skermorlie case, E. Eglinton v. Montgomery, 4 D. B. M. 425; 2 Bell's App. 149; for there, there was no reference to the previous entail, whereas here there is an express reference in the deed of 1730 to that of 1704. Then it is said, that assuming the deed of 1730 to be no alteration of that of 1704, still the latter was never recorded, while the crown charter proceeded on it alone. But, according to the true construction of the statute 1685, c. 22, “the original taillie,” which requires to be recorded, is not necessarily that on which the investment proceeds—at least where there is no question of two competing investitures; and we say, therefore, that the deed of 1704 is as much within the meaning of the statute as the deed of 1730, and that it entered the investiture, being sufficiently referred to and incorporated with the charter. The cases cited on the other side do not apply in the circumstances of the present case.

Sol.-Gen. Bethell and Anderson Q.C., for respondents.—This is a question of construction of deeds of entail—as to which, and the strictness of the rules, see Sandford on Entails, p. 275; Morehead v. Morehead, 1 Sh. & M'L. 56; Sharpe v. Sharpe, ibid. 594. We say that the deed of 1730 is a revocation of that of 1704, because it in terms purports to be so, and it makes a new destination, and contains different powers, conditions and penalties. The plain object of the deed 1730 was to amalgamate the two estates, and therefore there is one destination, and there is only one set of prohibitory, irritant and resolutive clauses, and hence an irritancy in any single portion of the combined estate is made to cause a forfeiture of the whole. Now the entail of 1730 is in its terms and structure a perfect and complete deed in itself, not depending on any former entail, but relying on the force of its own provisions. The slight reference to the deed of 1704 is a mere historical allusion, having nothing to do with the title given by the deed of 1730 itself. It has been often decided, that a mere general reference to an old entail has no effect in keeping that entail alive— Stewart v. E. Mansfield, 6 D. 1079; 5 Bell's App. Ca. 139. Besides the general scope and structure of the deed, there are various important changes made in the conditions affecting the lands of Halhill, quite irreconcileable with the deed of 1704. Thus the heir is to hear the name and arms of Dumbamie—he is at liberty to grant long leases —there is no reserved power of revocation—and there is a power of burdening the lands to a greater extent—also the destination is quite different. Again, the charter was expede on the procuratory in the deed of 1730, and there has been possession ever since, creating a prescriptive title. But this deed of 1730 having never been recorded, is null— Munro v. Drummond, 14 S. 453. Again, when an heir of entail completes his title on an investiture differing in important particulars from the original entail, this becomes a new entail— Broomfield v. Paterson, M. 15,618; and, when prescribed upon, becomes the governing investiture— Paterson v. Purves, 1 Sh. App. 401; E. Eglinton v. Montgomery, supra; Stewart v. E. Mansfield, supra. The deed of 1730 was not a mere deed for propelling the fee, as in Hay Newton, 14 S. 1031. In the Gartmore case, supra, cited on the other side, the two estates were not blended together in one entailed estate, but were disponed separately, and under different destinations. The charter in that case was a charter by progress, and it did not profess to go beyond the two procuratories of resignation in the two deeds of entail on which it proceeded; whereas the deed of 1730, on which the present procuratory of resignation proceeded, was essentially a new entail.