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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bontine v Graham [1835] CA 13_905 (12 June 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0905.html Cite as: [1835] CA 13_905 |
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Subject_Entail—Clause.—
A party executed a bond and procurator of entail of the crown lands of Gartmore, and afterwards another bond and procuratory of entail of the crown lands of Culbowie; there was no reference from the one entail to the other, but the lands in both were destined to the same heirs, under the same conditions, provisions, and irritancies (except that one contained some minor restrictions as to the mansion-house, &c. which were peculiar to it); the entail of Gartmore was recorded in the register of entails, and after the entailer's death his heir, by service, took up the procuratories in both entails and combined them in one crown charter, containing a two-fold dispositive clause referring respectively to Gartmore and Culbowie, and a two-fold queequidem clause narrating each of the two entails; it also set forth the whole conditions and irritancies of both entails, but they were combined into one series of clauses, there being no repetition of any condition, &c. twice over, and some conditions, though peculiar to one entail alone, being inserted along with those which were common to both; in various respects, the charter imported a reference to the two entails, as if they both regulated its tenor; infeftment followed under the charter, but before the entail of Culbowie was recorded, these lands were sold:—Held, in a question as to Gartmore, that the charter was to be construed applicando singula singulis, and that the entail contained in it was the same with each of the entails of Gartmore and of Culbowie; and that the lands of Gartmore were effectually secured against the debts and deeds of the heir who had made up titles under the entails; and that the entail was binding and effectual against him in questions with the substitute heirs of entail.
Nicol Graham was infeft in various lands, including Gartmore and others, holding of the crown, and Gartinstarry and others holding of a subject superior. In 1767 he executed a bond of tailzie and procuratory of resignation of Gartmore, Gartinstarry, and others, for new infeftment “to be granted to me in liferent, and to William Graham, my eldest lawful son, and to the heirs-male of his body; which failzieing, to Robert Graham, my second lawful son, and the heirs-male of his body; which failzieing, to John Graham, my third lawful son, and the heirs-male of his body; which failzieing, to the other heirs-male of my own body, and the heirs-male of their bodies; which failzieing, to the heirs-female of the said William Graham.” The procuratory contained the prohibitory, irritant, and resolutive clauses, requisite to form a strict entail. Power was reserved “to alter, innovate, or change this present tailzie, in whole or in part, or to make additions thereto, in so far as I am lawfully entitled to do the same; providing always, that such, alterations shall noways affect the interest of the said William Graham, my eldest son, nor the interests that shall be provided in favour of the heirs of any marriage to be contracted by the said William Graham, with my consent, and that such alteration shall be held and taken as a
He afterwards acquired the lands of Wester Culbowie, &c. holding of the crown; and, in 1774, he executed a bond of tailzie and procuratory of resignation of these lands, for new infeftment “to be given to me, and to Lady Margaret Graham, alias Cunninghame, my spouse, and longest liver of us in liferent, and to William Graham, my eldest lawful son, and to the heirs-male of his body; which failzing, to Robert Graham, my second lawful son, and the heirs-male of his body; which failzing, to the other heirs-male of my own body, and the heirs-male of their bodys; which failzing, to the heirs-female of the said William Graham, his body,” &c.
It did not appear whether William Graham, who married and pre deceased his father, was dead at the date of this deed, and whether the mention made of him as institute was solely to provide for the possible birth of a posthumous child. The deed was in form a strict entail, and the destination was the same as in the Gartmore entail. It reserved unlimited power of revocation, but contained a clause dispensing with delivery. There was, however, no reference in the one entail to the other, but the conditions and restrictions in both deeds were the same, with this exception, that the Gartmore entail contained some minor clauses peculiar to itself, such as a prohibition to let Gartmore house for a longer time than the life of the heir, and a permission to sell or feu certain small portions of the estate. Both entails laid an obligation on the heirs not to lie out unentered.
The entailer died without recording it; and on his death his second son Robert expede, in 1775, a service as heir-male of taillie and provision to his deceased brother William under the Gartmore entail, and heir-male of taillie and provision to his father under the Culbowie entail. He then, in 1776, by virtue of the two unexecuted procuratories of entail, resigned the whole lands of Gartmore and Culbowie, so far as holding of the crown, and obtained a charter of resignation and confirmation containing all the crown lands. The charter contained a double dispositive clause, the first being prefixed to the lands of Gartmore and the second to the lands of Culbowie.
The first of these clauses set forth the destination at full length, omitting only those branches which had already failed, and contained the Gartmore crown lands, after which the following words occurred:—“Ac etiam, dedisse, concessisse, disposuisse, et hac carta confirmasse, &c. et dare, concedere disponere, et eonfirmare delectis nostris dominse Margarets Graham, in vitali reditu, &c. et dicto Roberto Graham et hæredibus masculis ex ejus corpore, quibus deficien. aliis heredibus tallia; antea sjiecificat.” The lands of Culbowie were then conveyed, immediately after which these words followed:—“Sed cum et sub particularibus reservationibus, provisionibus, declarationibus, exceptionibus, et clausulis
In setting forth the conditions, the words “ad terras et statum” (the latter word being used in the singular number) were frequently employed as applicable to the whole of the lands in both procuratories of entail. The heirs were prohibited “mutare dict. talliam, vel ordinem successsionis, per eandem prescriptam,” &c.—“vel onerare talliat. terras et statum suprascript. vel ullam partem earund;” or to let Gartmore house for a longer term than the lifetime of the heir; “ullud factum, ullo modo facere per quod prasdict, talliat. terræ et status vel ulla pars earund. afficerentur,” &c.; or to permit “dict. talliatas terras et statum, vel ullam partem earundem evinci, &c. per appretiationem,” &c. There was a provision that the heirs “fruentur et possidebunt dict. talliat. terras et statum, virtute dict, duarum syngrapharum talliæ et infeofamentarum desuper con-secutorum,” &c.; and the heirs were enjoined to insert “in instrumentis resignationis, &c, super dict. talliæ syngraphas secuturis, et totis aliis translationibus dict, terrarum et status, totas provisiones declarationes et irri-tantias dict, talliarum.” It was provided, that if the heirs “talliæ supra nominat. succeden. ad dictas terras et statum deficient assumere cognomen, &c. et implere totas alias provisiones et conditiones inibi et in hac carta content, vel ullam earum, tunc, non modo omnia acta facta, &c. vacua et nulla erunt, &c. quatenus eadem referunt ad dictas terras aliaque suprascript. quse, nec ulla pars earundem ullo modo afficerentur, &c. in prejudicio heredum. talliæ, &c. destinat. succedere virtute dict. talliæ syngrapharum cum et sub provisionibus supra specificat, sed persona ita contravenien. vel deficien. implere conditiones, &c. suprascript. vel quamlibet earundem ipso facto amittent, &c. earum jura et interesse in dict. terris et statu,” &c. The reserved powers to feu certain portions of the estate of Gartmore were then inserted, stating the amount to which this power was limited “ex data dict. syngraphæ talliæ;” and there then followed power to provide the younger children of an heir to an amount not exceeding three years' rents “dict, terrarum, et status.” The latter, power existed both in the Gartmore and in the Culbowie entails; the former occurred solely in the Gartmore entail. Other clauses were inserted in the charter as to provisions to husbands and wives, exclusion of the terce or courtesy, &c. which were common to both entails. There followed a twofold qusequidem clause—the first branch referred to the Gartmore lands and excepted the lands of Culbowie. It was stated that the Gartmore lands “contentæ fuere in syngrapha talliæ per dict. Nicolaum Graham cxecut. de data secundo die Martii 1767, in registro talliarum trigesimo die Julii, et in libris Concilii et Sessionis vigesimo nono die Augusti 1768 reeordat.” It then gave the whole destination
Robert Graham was infeft under this charter, which was never recorded in the register of tailzies. In 1779, he executed a procuratory of resignation of the whole lands contained in the charter, for new infeftment to himself and the other heirs of tailzie, and under the conditions set forth in the charter. He obtained a crown charter, but died before taking infeftment under it. He never put on record the Culbowie entail; nor was this deed inserted in the register of tailzies till the year 1827. He made up no titles to the lands of Gartinstarry, &c, which were held of a subject superior, but possessed them on apparency.
Upon his death, his eldest son, William Cunninghams Cunuinghame
He possessed the lands of Gartinstarry, &c., upon apparency, till 1814, when he made up titles to them in fee-simple, and first burdened, and afterwards sold them. He also alienated other parts of the lands contained in the Gartmore entail, and having become embarrassed, he executed a trust-disposition of his estates in favour of Messrs James Brown and Edward M'Millan, as trustees for his creditors.
In 1828, his son, Robert Cunninghame Bontine, who had been born in 1799, raised an action of declarator of contravention and irritancy against him, on account of his having alienated and burdened portions of that estate. The action was founded on the entail 1767. Defences were pleaded both by Graham and by the trustees for his creditors, who had led an adjudication of his whole interest, besides being possessed of a voluntary conveyance from him.
Pleaded by the Pursuer—
1. The defender, William Cunninghame Cunninghame Graham, as well as his father, made up titles to the estate of Gartmore, under the two entails, and was effectually bound by their conditions. The entail of Gartmore conveyed the lands to William Graham, the eldest son, as institute; no power of revocation was reserved, so far as affecting William's interest; and the entailer put the deed on record in the register of tailzies, which was equivalent to delivery. There was thus a vested interest in William, and though he predeceased his father, yet the service of Robert, as heir of provision to William, was apt and habile; and Robert thereby took up the unexecuted procuratory, and expede an effectual infeftment under the Culbowie entail. In regard to the Gartmore entail, the pursuer was ready to prove that William was dead, without male issue, before it was executed. Robert Graham was thus the true institute, and needed not to have expede the service which he did to his father, in order to take any thing out of his succession, but merely to show that his brother William was dead without issue male. Robert was entitled, as institute and disponee, to take up the unexecuted procuratory in the Culbowie entail. But as all the lands in that unrecorded entail had been long ago sold, this was only important as showing that the investiture of Robert, under the charter 1776, was the complete feudalization of both the entails, so far as concerned the Crown lands.
2. The charter was in conformity to the two procuratories, which were
If it Was to be held that both of the entails were altered, merely by the lands being included in one charter, the doctrine would strike extensively against entailed estates. And the more so, because the converse would equally hold where the lands in one entail were taken up under several investitures, as must always occur where the lands hold of different superiors. In this latter case, it might equally be said that a new effect and operation were given to the irritant clauses, and, consequently, that a new entail was made, which was reducible, as ultra vires, by any heir of entail, within the years of prescription; and, as unrecorded, was ineffectual, at any time, against creditors. But all evil would be avoided by applying to the charter 1776, the common rule of fair construction, applicare singula singulis.
3. Even if the defenders were correct in alleging that the charter 1776 was different from the Gartmore entail, this was in itself an act of irritancy committed by Robert Graham, inferring forfeiture of the estate. The defender's making up titles, in the same way, was still an act of irritancy, unless prescription on the charter could be pleaded. But this could not be pleaded against the pursuer, during his minority, especially as tha contravener was then the pursuer's administrator-in-law, and bound
4. The defender, W. C. C. Graham, in making up his titles, connected himself with the Gartmore entail. At all events, that entail was still in force, and the defender had no right to the lands independently of it; and as he had committed a contravention by alienating part of the estate, the pursuer was entitled to declarator.
5. The creditors of W. C. C. Graham could not state an effectual defence if that entail was still in force.
Pleaded by the Defenders—
1. Robert Graham never effectually took up the procuratory in the Gartmore entail, and thus the provisions of that entail were never effectually introduced into the investiture under the charter 1776. The procuratory remained truly an undelivered and revocable deed in the hands of the entailer until his death: William predeceased him, so that no right had ever vested in William; and, therefore, Robert's service as heir of provision to William could take up nothing. But if Rohert did not properly establish in himself a right to the procuratory, the charter 1776 was not an investiture under the procuratory, any more than if it had been granted to any other party having no right to the procuratory at all.
2. The charter 1776 was a different entail from either the Gartmore or Culbowie entails. Each of these two deeds formed a separate deed of entail, not referring to the other. So long as they were kept distinct, an act of contravention of the Gartmore entail could only forfeit the Gartmore estate, and vice versa. But, by throwing both into one crown charter, and inserting the conditions and irritancies in that charter, a compound entail of both estates had been made, so that, if an heir alienated a part of either Gartmore or Culbowie, he forfeited both the estates. Besides, the conditions peculiar to the estate of Gartmore (such as those regarding the letting of Gartmore House) were inserted along with those common to both entails, and a contravention would forfeit both estates, though such condition was not in the Culbowie entail. The charter was conceived precisely as if intended to make the two estates into one, in all respects; and the twofold form of the dispositive clause, &c. arose merely from there being two procuratories of resignation. The charter always referred to the lands generally, as forming together “the lands and estate” above disponed. It provided that one sasine in any part of the lands should be good for the whole. This did not mean that one sasine on any part of the Gartmore lands should be good for them, and one sasine on any part of the Culbowie lands should be good for them; but that one sasine on any part of Gartmore or Culbowie should be good for both. In like manner, the penalty of forfeiture for alienating any part of the lands must infer, that
If the charter was really a new and unrecorded entail, the rules of law applicable to such a case must receive full effect, however extensively they might operate against entailed estates in general.
3. Prescription had run upon the charter 1776, and subsequent sasines in favour of Robert Graham, and the defender, W. C. C. Graham, so that the pursuer could not effectually found on the Gartmore entail 1767 against him. The course of prescription was not interrupted by the pursuer's minority. He was a mere substitute-heir, with nothing but a jus crediti under the Gartmore entail 1767. But it was now fixed, that it was only the minority of the verus dominus of the estate which was to be deducted in counting the years of prescription.
4. The defender, W. C. C. Graham, had never effectually connected himself with the Gartmore entail 1767. His service was intended to connect him with his father's charter of 1779, and the open precept contained in it. He was infeft under that precept, and such investiture was just a renewal of the investiture under the charter 1776.
5. The defenders, Messrs Brown and M'Millan, as trustees for the creditors, were entitled to contract with the defender on the faith of the investiture 1776, as appearing on the record of sasines. That was an unrecorded entail, and ineffectual against creditors.
The Lord Ordinary ordered Cases, and reported them to the Court. *
_________________ Footnote _________________
* “ Note.—Some of the points raised in this case do not seem to be attended with difficulty. The entail 1767 being an irrevocable deed, in so far as the interest of William Graham was concerned, the granter having reserved his own liferent, and the deed itself having been recorded by him in the register of tailzies, it must be held as having been delivered, and therefore the service of Robert Graham to his brother William was an effectual and proper mode of completing his title, and the defender having connected himself with this entail by service to his father, is bound by its conditions.
“With regard to prescription, as the pursuer was the next substitute to the defender, and entitled by his contravention to take the estate, it is thought that agreeably to the principle adopted by the House of Lords in the Bargany case, the minority of the pursuer must be deducted in counting the years of prescription.
“There were two entails, one of Gartmore, and the other of Culbowie, &c. which, mutatis mutandis, were identical in every important clause, and they were both duly recorded. Robert Graham, in expeding a charter upon these entails, did not keep the conditions of the one separate from those of the other, but combined them as if there had been but one estate and one entail; and this charter was not recorded in the register of tailzies. Hence, ex figura verborum, a contravention of the entail
The Court directed the following questions to be put to the other Judges:—“Whether the titles completed by Robert Graham, the father of the defender, W. C. C. Graham, by the crown charter in 1776, and the sasine following thereon, were framed in conformity to the deeds of entail executed by Nicol Graham in 1767 and 1774? Or whether the entail contained in the said charter and sasine is the same with, or different from, both or either of the entails contained in both or either of the said deeds of entail of 1767 and 1774; and if different, what is the legal effect and consequence of such difference? And whether, by the titles so completed by the said Robert Graham, and by those completed by his son, W. C. C. Graham, the lands contained in the entail 1767 (which entail had been previously recorded in the register of tailzies), are effectually secured against the debts and deeds of the said W. C. C. Graham? and whether the said entail is binding and effectual against him in questions with the substitute heirs of tailzie?”
A hearing in presence of the whole Court was afterwards ordered.
“The first question, on which the opinions of the consulted Judges are required, is, whether the titles, completed by Robert Graham by the Crown charter, 1776, and the sasine following thereon, were framed in conformity with the deeds of entail, 1767 and 1774; or, whether the entail, contained in that charter and sasine, is the same with, or different from, both or either of the entails contained in both or either of these deeds?
“The defenders have specified various particulars, in which they say, that the entail in the charter and sasine is different from the entails in the deeds. In our opinion, the pursuer has, with one exception, satisfactorily accounted for all those differences, and has shown, that, either necessarily, or in strict conformity with the correct principles and usual practice of conveyancing, they took place in the preparation of the investiture. Thus, although there are lands contained in the deeds of entail, which do not appear in the investiture, the lands so omitted held of a subject superior, and were, therefore, necessarily excluded from a charter
_________________ Footnote _________________ of Gartmore would, under the charter, forfeit not only that estate, but the estateof Culbowie also; and in like manner, a contravention of the estate of Culbowie would forfeit the estate of Gartmore. In an ordinary deed these conditions would be construed, applicando singula singulis, agreeable to the obvious meaning of the granter, a rule arising out of the usual forms of expression, and generally adopted with regard to every species of writing. But whether this rule obtains in the case of an entail is more doubtful, as that instrument is construed with a strictness and rigour Unknown in every other case. If the ordinary license is not to be allowed, the entail in the charter of 1776 is different from those executed in 1767 and 1774; and as the entail in the charter enters the register of sasines only, while the two entails are recorded in the register of tailzies only, the estates are not protected against the diligence of the defender's creditors, some of whom are parties to this action. As the point is new, and the interest at stake considerable, the Lord Ordinary has thought it right to report the cause.”
“But the exception to which we allude, and upon which the defenders seem now exclusively to rely, relates to the structure of the irritant and resolutive clauses in the investiture. In framing the charter 1770, the entails 1767 and 1774, instead of being kept separate, as they ought to have been, were combined, so that if the charter, with the sasine upon it, is alone considered, a contravention of the provisions in the entail of Gartmore would apparently infer a forfeiture, not only of that estate, but of the estate of Culbowie also; and vice versa, a contravention of the entail of Culbowie would apparently infer a forfeiture of the estate of Gartmore. To that extent, it is clear that the entail, as it stands in the investiture, is not in form absolutely identical with the entails in the deeds 1767 and 1774; and this the pursuers do not dispute.
“We come, therefore, to the second point to which our attention is directed, namely, what is the legal effect and consequence of this difference? which, reversing the order suggested, we think may best be considered, 1st, As in a question between the pursuer and W. C. C. Graham, that is, between the substitute heirs and the heir in possession; and, 2dly, between the pursuer and the other defenders, who appear in the character of third parties or creditors.
“In a question between the substitute heirs and the heir in possession, it will be observed, that the estates contained in the two deeds of entail are conveyed separately in the charter; and it is declared, that they are conveyed under the conditions and provisions, and under the irritant and resolutive clauses in two deeds of tailzie; that Robert Graham and the other heirs of tailzie shall enjoy and possess the estates by virtue of the said two deeds of tailzie; that he shall insert the conditions of the said tailzies in the charters and infeftments which are to follow on these tailzies; that no acts of contravention shall prejudice the heirs destined to succeed by the deeds of tailzie, and so forth, keeping both deeds constantly in view; and in the clause of quæquidem, the progress of the separate estates contained in each tailzie is set forth, and both tailzies are specially described by the respective dates of their execution, and of their registration in the books of Session. In answering this first question, which arises between the substitutes and the heir in possession alone, and in which, therefore, the provisions of the act, 1685, do not enter into the case, it is necessary to consider upon what principle the charter, 1776, is to be construed. We conceive that the special references in that charter to the two entails under which it is declared that the two estates shall be held and enjoyed, are sufficient authority for taking into view both those entails, for the purpose of ascertaining its import. If that be granted, it makes way for the rule, quod singula singulis sunt applicanda, for materials are given upon which that rule can operate. We do not mean to say, that, in every case, an investiture may be construed by reference either to prior investitures, or to the warrants on which it proceeds. But when, in the investiture to be construed, express reference is made to those warrants, as explaining or authorizing the rights which it confers, we think that this is a legitimate mode of construction. Nor is this opinion at variance with the recent decision in Hope Vere's case, because there the destination in the old entail, 1708, could not possibly be reconciled with the destination in the new entail, 1733, and it was manifest that those who framed the latter laboured under the mistake that
“If, instead of the present action, a declarator of irritancy had been brought against the defender, W. C. C. Graham, to forfeit Culbowie, on the ground that he had contravened the entail of Gartmore, we do not think that he could have been precluded, by the form of his investiture, from showing that he had violated no condition of the entail, under which that very investiture provided that he should exclusively possess and enjoy that estate; and so vice versa if a contravention as to Culbowie were pleaded as a forfeiture of Gartmore. But if a plea, which necessarily infers that the entails are still in force, would have been available in his favour in that action, it must be so against him in this action, in which he maintains that the same entails are extinguished.
“The question assumes a different shape when it occurs with third parlies, and when the provisions of the act, 1685, come into operation. A purchaser or creditor is entitled to look for the conditions and fetters of an entail, either in the register of tailzies, or in the record of sasines exclusively. He is not bound to compare the one with the other, nor can he be referred to any deed, not part of the registered entail, or recorded sasine, to explain either of them. In his case, therefore, it may be plausibly argued, that there is no place for the rule singula singulis; because the recorded investiture contains nothing to show that the conditions and fetters of each of the deeds of entail are not identical with the conditions and fetters of the entail set forth in that investiture, and, if they are not the same, that he is entitled to hold that the entails are not duly recorded in the register of sasines.
“We are of opinion, that this argument is not conclusive. The object of the act, 1685, plainly is, that all the conditions and fetters of entails, by which purchasers or creditors can be endangered, should be disclosed by means of two records, on either of which they may rely for information. But while they are secured that no restriction can exist unless it be so recorded, they are not secured, nor are they entitled to infer, that every restriction which is recorded must therefore be operative. On consulting the register of tailzies, the irritant and resolutive clauses in a deed may appear impregnable, while a defect in the record of sasines may render them utterly ineffectual; and so, on the contrary, a defect in the register of tailzies may defeat the most accurately recorded investiture. And as all the restrictions in a tailzie may thus become inoperative, so may any one restriction in whole or in part. This can be of no prejudice to third parties: They are certiorated fully of all dangers to which they can be exposed, but they are not informed whether, or to what extent, those dangers may be avoided. Thus, if part of an estate, which is placed under an entail, be sold by the entailer, or evicted from him before the entail is recorded, the register will show all the prohibitions and irritancies as if they affected that subject, although it has been withdrawn from their operation. On that principle, in one case, the Court refused to allow a tenement to be omitted in recording an entail, Which the entailer had disposed of before his death. In similar
“Let the statute, so construed, be applied to the present case. On the one hand, it is admitted that the entail, 1767, is recorded in the register of tailzies with perfect accuracy, and on the other hand, it is incontestable that the record of sasines exhibits every prohibition and fetter in that entail, by which the estate can be affected to the prejudice of purchasers or creditors. The only objection to the record of sasines is, that the forfeitures under both entails, inserted in a combined form, are more extensive in appearance than they are in reality, an objection which, on the grounds now stated, we consider of no validity. Thus it appears, that when the heir in possession pleads prescription on the entail, 1776, against the entails, 1767 and 1774, the pursuers can show that, by a rule of construction legitimate in that question, the import of the former is identical with that of the latter; and when the creditors plead, that the fetters of the entail, 1767, do not enter the investiture in terms of the statute, 1685, it is a good answer that the provisions of that statute are fully complied with.
“The entail, 1774, was not recorded, and in consequence of that neglect the estate was sold. But this circumstance does not in any respect affect the argument in so far as the entail, 1767, is concerned.
“We are of opinion, therefore, that by the titles completed by Hubert Graham and his son, W. C. C. Graham, the lands contained in the entail, 1767, are effectually secured against the debts and deeds of the said W. C. C. Graham, and that the said entail is binding and effectual against him in questions with the subsequent heirs of entail.”
“This case has appeared to me to be attended with very considerable difficulty. But, after giving all the attention in my power to the argument in the papers and from the bar, and considering deliberately the views taken in the above opinion, I am inclined to concur in it, being, on the whole, satisfied that the investitures completed under the charter 1776 are consistent with the strictest application of the rule of the statute 1685. I only think it necessary to add, that I could not
“We concur in the conclusion arrived at in the preceding opinion, viz. that under the titles completed by Robert Graham and his son, William Cunninghame Cunninghame Graham, the lands contained in the entail, 1767, did, and still do remain, subject to the fetters of that entail; and we also concur in the greater part of the reasoning by which that conclusion is supported. The entail 1767 contains all the prohibitions and restrictions necessary for the protection of the estate against the acts and deeds of the heirs in possession. To render such conditions effectual against third parties, it is necessary that they should appear in the titles by which the heirs possess; it being provided by the act 1685, ‘that such tailzies shall only be allowed in which the foresaid irritant and resolutive clauses are insert in the procuratories of resignation, charters, precepts, and instruments of seasing.’ In regard to creditors then, the only question here is, whether the irritant and resolutive clauses of the entail 1767 can be held to be ‘insert’ in the charter and infeftment of 1776?
“For the reasons assigned in the preceding opinion, and even upon the view there taken, viz. that the resolutive clause, as expressed in the charter, embraces certain other lands in addition to those contained in the entail 1767, and may therefore have a more extensive operation, we think that the question ought to be answered in the affirmative.
“But, further, we must be permitted to question whether that view be correct, and whether there is any necessity for resorting, in the present case, to those grounds of decision. It rather appears to us, that the resolutive clause in the charter, the only clause which raises any difficulty, has not, according to the legitimate construction of the charter itself, any more extensive meaning in regard to the lands of Gartmore, than the original entail 1767.
“The entailer, Nicol Graham, executed two procuratories of resignation, each forming a deed of entail. The first, that of 1767, included various lands which shall be termed the lands of Gartmore; and the other, that of 1774, contained the lands which may be designed the lands of Wester Culbowie. Robert Graham, the entailer's second son, executed both procuratories, and expede the Crown charter 1776, obviously for the purpose of making up titles under those entails, to both sets of lands, in so far as they held of the Crown. Accordingly, the charter distinguishes the two estates and the two entails with the greatest precision. There is a separate dispositive clause, first, of the lands of Gartmore, &c.; and, secondly, of the lands of Wester Culbowie, Broich, Broichmiln, &c.; and these dispositive clauses bear to be granted, ‘cum et sub particularibns reservationibus, provisionibus declarationibus, exceptionibus, et clausulis irritantibus et resolutivis postea express, et non aliter, in duabus syngraphis talliae postea mentionat., content., &c’
“By the expression,'postea mentionat.,' reference is clearly made to the quaequidem clause, which is also a double clause, distinguishing the entail of 1767 from that of 1774, There is, first, the mention of the entail 1767: ‘Quaequidera
Combining, then, the descriptions of the entails in the quaequidem, with the close of the dispositive clause, expressly referring to those descriptions, the two sets of lands bear, ex facie of the dispositive clause, to be disponed under the provisions and restrictions and clauses irritant and resolutive after expressed, contained in two deeds of entail, the one dated 1767, of the lands of Gartmore, and the other dated in 1774, of the lands of Wester Culbowie. The charter then enumerates, in detail, the prohibitions and restrictions; and it is of some importance to observe, that, in the clause immediately preceding that which raises the present question, there is a clear reference to both entails. It is there provided, that Robert Graham, and the other heirs, shall possess the entailed estate ‘virtute dict. duarum syngrapharum talliæ et infeofamentorum desuper consecutorum,’ &c, and shall be bound to insert in the instruments of resignation and infeftments, &c., ‘totas provisiones, declarationes et irritantias dict. talliarum.’ Then follows the combined irritant and resolutive clause, which declares, that if the said Robert Graham, and the other heirs, shall fail to assume the name and arms prescribed, or shall fail to perform the other provisions and conditions, then, and in any of those cases, not only shall all the acts and deeds of omission, commission, &c., be void, and of no effect against the said lands, and no part of the same shall be affected or burdened by those acts, &c, ‘in prejudicio haeredum talliae et provisionis supra specificat. destinat. succedere virtute dict. talliae syngrapharum, cum et sub provisionibus supra specificat. sed etiam persona vel personae ita contravenien. vel deficien. implere conditiones et provisiones suprascript. vel quamlibet earundem, pro seipsis ipso facto, amittent, perdent et forisfacient eorum jura et interesse in dict, terrar. et statum,' &c.
Considering the form and general tenor of this charter, it appears to us, that in reading this clause, as well as the other clauses in the deed, the construction, applicant singula singulis, is not only legitimate, but is the only construction which.
Upon these grounds, and in addition to the opinion already expressed on the subsistence of the entail 1767, we are of opinion that the titles made up by Robert Graham, by the Crown charter 1776, involve no disconformity to the deeds of entail executed by Nicol Graham in 1767 and 1774.”
When these opinions were returned the case was again advised.
The rest of the Court intimated that they also concurred with the majority of the consulted Judges; but
The Court pronounced this interlocutor:—Find in terms of the opinions of the consulted Judges, that the titles completed by Robert Graham, the father of the defender, by the Crown charter, in 1776, and the sasine following thereon, were framed in conformity to the deeds of entail executed by Nicol Graham, in 1767 and 1774, and that the entail contained in the said charter and sasine is the same with each of these entails; and that by the titles completed by the said Robert Graham, and those completed by the defender, the lands contained in the entail 1767 are effectually secured against the debts and deeds of the said defender: and that the said entail is binding and effectual against him in questions with the substitute heirs of taillie, and decern. Quoad ultra, remit to the Lord Ordinary to hear parties on the remaining points of the cause.”
Solicitors: Ker and Dickson, W. S— E. M'Millan, S. S. C.—Agents.
