Scottish Court of Session Decisions

In the year 1804, the estate of Thirdpart, in Fife, was purchased by Miss Catherine Anstruther, for behoof of her brother, the late Sir Alexander Anstruther, then resident in Bombay. Miss Anstruther received a disposition from the seller, upon which she was infeft. In 1808 she executed a disposition of the estate “to and in favour of the said Sir Alexander Anstruther, and his heirs whomsoever and disponees, heritably and irredeemably, all and whole the lands,” &c. This deed contained precept of sasine, and also a procuratory of resignation, for resigning the lands in the hands of her immediate superiors “in favour and for new infeftment thereof to be granted to the said Alexander Anstruther and his foresaids,” &c. No feudal title was ever made up by Sir Alexander under this disposition.

In 1810 he executed a deed of entail of the lands in question in favour of himself and the heirs of his body, whom failing, certain other parties, in the form of a procuratory of resignation. This deed, proceeding on the assumption that Miss Anstruther was so connected with the titles that it was proper she should be made a party, bore to be granted with her consent, and ran in the name both of Sir Alexander and of her, but was never signed by her. It provided for the heirs of entail completing a title to the lands, and assigned and disponed to Sir Alexander and his heirs, “under the conditions, provisions, declarations, and clauses irritant and resolutive therein contained, all and sundry writs, evidents, rights, title-deeds, &c. made, granted, and conceived in favours of us and our ancestors and authors,” &c. It likewise provided that these presents should stand good and continue effectual and obligatory “to compel my heirs-at-law and other heirs to make up and complete titles in their persons to any part of the said lands and others to which I shall not have completed my own titles.” By a subsequent deed in 1814, Sir Alexander made certain alterations on and additions to the previous deed of entail. He died in 1819, the defender, Major Robert Anstruther, being his eldest son and heir, and at that time a minor. Both deeds were duly recorded.

Robert Anstruther's titles were thereafter made up as follows:—He was served heir of line and also heir of tailzie and provision to his father before the Sheriff of Fife, the claim and the retour following thereon embodying the whole clauses of the deeds of entail. A charter of resignation and confirmation from the Crown was then obtained, proceeding upon the procuratory of resignation contained in the disposition by Miss Anstruther to Sir Alexander, and disponing the estate to Robert Anstruther and the other heirs of entail in their order, under burden of the provisions and restrictions of the entail. Upon this charter infeftment passed in his favour.

After Robert Anstruther came of age, he adopted and acted upon these titles. In 1829 he executed a conveyance of the estate to certain trustees for uplifting the rents and applying them in payment of his mother, the defender Lady Anstruther's annuity, payable under the entail, and of other annuities and debts for which he had become bound. Thereafter the trust was transferred to the pursuer, Renton, as a new trustee, who, in 1836, received from Anstruther two bills, at one day's date, for £1000 and £184.

In these circumstances, Renton raised action against Robert Anstruther, setting forth the progress of deeds and titles already detailed, stating that he, as in right of the bills above mentioned, had brought an adjudication of the lands of Thirdpart, and concluding to have it found and declared that no effectual deed of entail had ever been executed, and that these lands were liable to be adjudged, or otherwise affected by diligence, in the same manner as if the deeds of 1810 and 1814 had never been executed by Sir Alexander,—or, at all events, that no feudal title had been validly made up under the said deeds, and that the lands remained liable to be adjudged or affected for the debts contracted by Robert Anstruther, and particularly for that due to the pursuer, who was entitled to follow forth the said adjudication, and obtain himself vested as adjudging creditor in the lands; and concluding, farther, to have the charter of resignation and confirmation in favour of Robert Anstruther, with any instrument of resignation on which the same may have passed, and the instrument of sasine following thereon, reduced, in so far as they vest, or may be held to vest any other than a title in fee-simple in Robert Anstruther. The ground of reduction was, that the charter and resignation on which it followed, and the infeftment taken thereon, were without any legal or sufficient warrant, “the same having proceeded on a procuratory of resignation, which gave no warrant for any such charter and infeftment, or for any resignation being made in favour of the parties in whose favour they were granted and executed, or for the limitations, restrictions, and qualifications therein contained, and being otherwise irregular and inept.”

Thereafter, Robert Anstruther having put in defences, Philip Anstruther, Sir Alexander's second son, and Lady Anstruther, his widow, sisted themselves as parties to the process, and also lodged defences, pleading, in limine, that all the proper parties interested had not been called. The Lord Ordinary, in respect of this defence, “allowed the pursuer to call the heirs of entail.”

Against the conclusions of the action, the defenders pleaded, that Sir Alexander Anstruther had a sufficient title to enable him to make an entail in the form in which he made the entail of Thirdpart, and that Robert Anstruther's titles have been regularly and effectually completed.

The Lord Ordinary having ordered cases, it was maintained in support of the action;—Without admitting that Sir Alexander's merely personal right was sufficient to entitle him to make the entail in 1810, or that this deed was valid, although not signed by Miss Anstruther, Robert Anstruther's titles are otherwise objectionable on the principles of the feudal law. In order to constitute a valid charter of resignation, there must have been a sufficient warrant for it; i. e. there must have been a duly executed procuratory of resignation in favour of those parties to whom the charter was subsequently granted. A procuratory of resignation for infefting in fee-simple will not support a charter of resignation burdened with the conditions of an entail. The conveyance in the charter is necessarily restricted to those persons in whose favour the procuratory runs. Resignation is made to the effect of a charter being granted to those, and to no other persons. In the present case, the procuratory of resignation granted by Miss Anstruther in favour of her brother, was a procuratory for infefting him and his heirs-at-law in fee-simple. Resignation is made on this procuratory by Sir Alexander's eldest son and heir of line, and a charter follows, conveying the lands not in fee-simple, but under the fetters of an entail. The title is therefore invalid. A mere general assignation to writs and evidents, such as that contained in the deed of 1810, when standing alone, conveys no legal right by the law of Scotland, and cannot be founded on, per se, to any effect whatever. ¹

The defenders contended in answer;—

Miss Anstruther's signature was unnecessary to the deed of 1810, she having already by the disposition of 1808 conveyed away the lands to Sir Alexander. Although his right to the lands was merely personal, it is now settled law that he could notwithstanding make an effectual entail. ²

There might have been room for the pursuer's argument, if the procuratory of 1810 had been acted upon, to the effect of making up the title by resignation under it alone. But Sir Alexander held at that time, under the deed of his sister, an unexecuted procuratory of resignation in favour of himself, his heirs or disponees, which he could either execute himself or convey to others, with power to them to execute it; and he could so convey it either simply, or under such limitations and fetters as he might think proper to impose. Accordingly, by the clause of assignation of the writs, &c. in the deed of 1810, he conveyed that procuratory and all the other title-deeds and rights of the estate to his heirs of entail, under the conditions, provisions, declarations, and clauses irritant and resolutive, contained in that deed. In virtue of the procuratory so conveyed, and under an express recognition of the entail in which it was conveyed, Robert Anstruther has made up his title to, and now holds the estate. It might farther be said that Sir Alexander having undoubted right to the procuratory in his sister's deed, and conveying and assigning all writs and evidents as to the estate, the procuratory granted by him in the circumstances stated is to be regarded truly as an assignation of his right to execute the procuratory in Miss Anstruther's deed. Upon these grounds it is clear—1st, That Sir Alexander had complete power to make an entail of the lands of Thirdpart; 2d, That he effectually exercised that

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¹ Grahame v. Don, Dec. 15, 1814, F. C.

² Napier v. Livingston, July 20, 1762; Brown's Sup. 888, and Bell's Cases, p. 184 (Note).

power by conveying the unexecuted procuratory under the fetters of entail; and, 3d, That the titles were validly made up by executing that procuratory under these fetters.

The Lord Ordinary reported the cause, adding to his interlocutor the subjoined note. ^*

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* “ Note.—In considering this case the Lord Ordinary has all the inclination and leaning which the law has so often manifested to liberate the proprietor in possession from the fetters of the entail, if it has not been executed in a manner duly consistent with the strictest rules of law and form. But, on the other hand, the Court must take care that no plea is sustained, in order to effect this, which will put to hazard or unsettle any rules long understood by parties and men of business as fixed in the law of title, and on which innumerable parties and their families depend for the security of their property. The Lord Ordinary entertains no ordinary apprehensions that there is a risk of this from some of the pleas of the pursuer. His views will be best understood from adverting to the pleas of the pursuer in their order.

“I. It is said, that when Sir Alexander Anstruther executed the first of the two deeds now in question in 1810, he was not in titulo to grant any procuratory of resignation, as he was not infeft, and did not validly assign the procuratory to which he then had right in his sister's disposition of 1808.

“Now, as to this deed of 1810, though it certainly runs in the name both of Sir Alexander and his sister, and was intended to be executed by both, yet, as Miss Anstruther never signed it, it can only be held as the deed of Sir Alexander alone. This the pursuer seems to admit. Nevertheless, utile per inutile non viliatur. The procuratory, as the deed of Sir Alexander, is not inept, because the consent of a party was not adhibited, whose consent was not necessary.

“Viewing this then as a procuratory of resignation by Sir Alexander alone, was it in any respect ineffectual? He then had an unquestionable personal right to the lands. He held the disposition of his sister, who had been infeft, setting forth, that the lands had been acquired with his money, and therefore she disponed the lands to him with procuratory and precept. He clearly, therefore, had the right either to use Miss Anstruther's procuratory himself, or to assign it to others, to he used under any conditions and limitations that he thought fit. For example, he could have assigned it to as many parties successively, in liferent, as he thought fit, and to others thereafter in fee.

“If he could do this, there seems to have been nothing to prevent him from transferring the procuratory to heirs and substitutes, under the conditions and restrictions of an entail. The precedent of Napier and Livingstone, quoted in the defender's case, is sufficient to show that it was decided both by this Court and the House of Lords, as an incontestible point, that a tailzie by a party holding only a personal right to lands is effectual. The question, therefore, is, if Sir Alexander Anstruther made his entail in the valid and effectual form which the state of his own title at the time required?

“Now, while the deed of 1810 was, in fact, a, procuratory of resignation flowing from Sir Alexander himself, it contained also the usual general assignation of ‘all and sundry writs, evidents, rights, title-deeds and securities, whatever, both old and new, made and conceived in favour of us,’ &c., and the first, and, indeed, the main question raised by the pursuer is, whether Sir Alexander can be held under the general assignation of writs and evidents in the deed of 1810, to have validly assigned to the heirs and substitutes of tailzie the unexecuted procuratory in Miss Anstruther's disposition of 1808? If this is decided affirmatively, much of the difficulty supposed to occur in these titles must disappear.

“The pursuer's argument on this head is founded, in a great measure, on the case of Graham of Gartmore and Don in 1815, in which it was found that the general assignation of writs and evidents, in a conveyance of lands and teinds, did not import the transference of a tack of teinds, to which the disponee had right at the date of the conveyance.

“But the Lord Ordinary views that as an entirely different question from the present. In fact, it is applicable to very few cases, except, perhaps, in questions of teinds which are some time possessed by parties under various peculiar rights very different from each other. In Graham's case, for example, the question came to be, whether it ought to be held, that when a proprietor made an entail of the fee of his lands and teinds, and assigned all writs and evidents in regard to these subjects, he could be held to have also entailed a tack of teinds held by him at the date of the tailzie? The Court, keeping in view the difference between rights of property and tacks, found that such a construction could not be put on the general assignation of writs and evidents in the estate of Finlayston. The import and extent of that decision was well explained by Lord Glenlee in a late case, in which he said,—‘The Court held that, though the right in question was a tack of teinds which may be carried by assignation, yet the assignation to writs could only be used to support the right actually conveyed, but could not convey the tack itself.’

“This view of the ground of decision in Graham's case is also borne out by the argument of the successful party, as reported in the Faculty Collection. ‘The clause,’ said he, ‘assigning the writs and evidents, never had the force ascribed to it by the pursuer. It has been introduced merely in subserviency to the purposes of the disposition, and to carry to the disponee the particular documents by which the rights conveyed may be completely feudalized.

“Now, apply these views to this case. The radical and actual right granted by Sir Alexander Anstruther in 1810 was a procuratory of resignation. He must be presumed to have known that he could only grant such a procuratory as the holder and assignee of the procuratory of a previous proprietor feudally infeft. And therefore it cannot be questioned in this particular case, that the assignation of writs and evidents must be held to include and carry that prior procuratory under which alone he could give any operative or practical effect to the right which he then granted? It is thought the present case falls directly within the illustration put by the defender in Graham's case, of the instances in which the general assignation receives effect.

“The Lord Ordinary must own that he should consider the case of Graham as a precedent of most extensive and alarming application in practice, if it were held to rule such a case as the present. Perhaps there is no class of rights understood more universally to fall within general assignations of writs and evidents, than procuratories of resignation. Many thousand charters have been passed, and are in daily progress on procuratories taken up under the general assignation clause, without any specific reference; and if this practice is now to be unsettled, or even if any doubt is to be cast on titles and progresses so completed, the consequences cannot be foreseen.

“But in what does the present case differ from those of most ordinary occurrence? It is said that there was no conveyance of the lands themselves here, but that the entail was in the form of a procuratory by a party uninfeft. The entailer however, gave no disposition, because he was not infeft himself. Looking to the state of his title if he had given a conveyance, the only clauses of it which could have been feudally acted on, would have been the procuratory and assignation of writs. But at present it is not very easy to see on what principle effect can be refused to the deed of 1810, which contains these clauses per se, in a separate deed.

“II. The next plea raised by the pursuer is, that the deed of alteration executed by Sir Alexender Anstruther in 1814 was a new entail, and that there was no assignation, general or special, of Miss Anstruther's procuratory of resignation, at least in that last deed. At present, however, the Lord Ordinary does not think that this plea is maintainable.

“It has never been held in any case that a deed of alteration, or of additional nomination of heirs, requires either a new conveyance or a new procuratory or precept. On the contrary, in such cases the prior rights or deeds, which form the basis of the title, are taken up by the institute or heirs who have first occasion to use them, for behoof of all interested in the destination, either as originally named or as afterwards altered and enlarged. The conveyance to and possession by the first heirs is a conveyance for behoof of those afterwards brought in. This accordingly was one of the points laid down by the great majority of the Judges in the Duchal case, 1 Shaw, p. 9.

“In the present case, the deed of 1814 was merely a deed of alteration, and in supplement of the deed of 1810; it did not recal it, nor was it intended to subsist as an independent right. On the contrary, the deed of 1814 expressly declared, that the deed of entail of 1810, ‘in so far as not altered by these presents, shall still quoad ultra remain in full force and virtue.’

“III. The only other question is, whether there be any thing feudally inept in the titles as completed in Major Anstruther's person during his minority?

“Here it is not enough to say, that as Sir Alexander Anstruther never completed a feudal title to the estate, a title might have been made up, which would have given the Major a right for a time in fee-simple, and so render it liable for his debts. The same might be done by every heir of entail, if he run the risk of forfeiture. But if the heir be under a personal obligation to complete a title under the limitations of a tailzie, and does so regularly, can this be afterwards reduced?

“These are the proper questions here. From what has been already indicated, the personal obligation on the Major to complete a title under his father's deed of entail, and alteration thereof, does not appear easily disputable; and if so, the Lord Ordinary does not see what form of title could have been expede other than that which was done in the present instance.

“Miss Anstruther, the last infeft proprietor, was dead. The procuratory of resignation granted by her was unexecuted. It stood validly assigned (as the Lord Ordinary assumes) to the heirs of entail. Major Anstruther took up the personal right by a general service as heir of tailzie and provision, and he got a charter expede confirming Miss Anstruther's base infeftment, and giving a charter of resignation on her procuratory, as assigned by Sir Alexander to himself, under the conditions of both the deeds of entail. The Crown charter in favour of the Major affords evidence in gremio that the title on which the resignation proceeded was correctly set forth in the instrument of resignation which preceded the charter, as required by the Act 1693, and being so, the Lord Ordinary doubts extremely if there be any grounds on which it would be safe here to set it aside.”

The case was this day put out for advising.