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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> James Joseph Hope Vere - Lord Advocate (Murray - Sir W. Follet - Dr. Lushington v. The Right Honourable Charles Hope and Others - Tinne - Stuart [1837] UKHL 2_SM_817 (14 July 1837) URL: http://www.bailii.org/uk/cases/UKHL/1837/2_SM_817.html Cite as: [1837] UKHL 2_SM_817 |
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Page: 817↓
(1837) 2 S&M 817
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1837.
1st Division.
No. 23.
[
Subject_Entail — Clause. —
A deed of entail was executed in 1708, and an heir of entail expede a charter of resignation and infeftment in 1733, referring to the entail, as if the charter were intended to be in conformity therewith, but which in fact altered the destination; and in an action raised in 1822, it was decided that the charter was fortified by prescription, and was not controlled by the reference to the entail: Held in another action to try whether the fetters of the entail were effectually laid on the heirs of the investiture under the charter, (affirming the judgment of the Court of Session,) that, although the charter was in various respects inaccurately framed, it was, on the whole, effectual to oblige the heirs succeeding in virtue of it to hold the estate under the conditions of entail particularly recited, and to prevent them from altering the order of succession laid down in the dispositive clause, and from holding the estate, in other respects, free from the fetters against selling or contracting debts.
On the 31st of July 1708 the lands and barony of Craigiehall were entailed by Sophia Marchioness of Annandale to herself and her husband in life-rent, and to her second son and a series of heirs in fee. The destination, after calling the sons of the Marchioness
Page: 818↓
“Whilks failzieing, to Lady Henrietta Johnston Countess of Hopetoun, our daughter, and the second son to be procreated betwixt her and Charles Earle of Hopetoun her husband, and the descendants of the body of the said second son, without division.”
The destination followed in favour of various other heirs, and was fenced with the usual prohibitory, irritant, and resolutive clauses. It was expressly declared that every contravener should amit, lose, and tyne all right to the estate, not only for himself, but for the descendants of his body. The entail was recorded in the register of tailzies on the 14th of February 1727.
The succession having opened to the Countess, she made up titles by charter of resignation and infeftment as heiress of tailzie and provision, dated 8th September and 27th October 1727.
On the 25th of July 1733 a contract of marriage was entered into between her second son the Honourable Charles Hope and Miss Katharine Weir, heiress of the estate of Blackwood, to which the Earl and Countess were contending parties; and by which they propelled the estate of Craigiehall to Charles Hope in the following terms:—
“They both, with one mutual advice and consent, have given, granted, and disponed, and by these presents, with and under the burdens, reservations, powers, faculties, conditions, declarations, provisions, and clauses irritant underwritten, allenarly and no otherways, give, grant, and dispone, heritably and irredeemably, to and in favours of the said Mr. Charles Hope, and the heirs male lawfully to be procreate betwixt him, and the said Mrs. Katharine
Page: 819↓
Weir of this intended marriage; whom failing, to the heirs male to be procreate of the body of the said Mr. Charles Hope of any subsequent marriage; whom failing, to the heirs female to be procreate betwixt him and the said Mrs. Katharine Weir of this intended marriage; whom failing, to the heirs female to be procreate of the body of the said Mr. Charles Hope of any other subsequent marriage, without division; whom failing, to the next immediate younger son successive to be procreate of the marriage betwixt the said Henrietta Countess of Hopetoun and the said Charles Earl of Hopetoun, and the descendants of the body of the said younger son successive, also without division; whom failing, to the heirs male of the body of the said Henrietta Countess of Hopetoun of any other lawful marriage, and the descendants of their body, without division; whom all failing, to the nearest and lawful heirs and assignees whatsomever of the deceased Lord William Johnston, second lawful son procreate betwixt the deceased William Marquis of Annandale and the also deceased Sophia Marchioness of Annandale his wife, and brother german to the said Henrietta Countess of Hopetoun, in fee; conform to the destination of succession contained in the bond of tailzie of the estate of Craigiehall made by the said deceased Sophia Marchioness of Annandale, with consent of the said (deceased) William Marquis of Annandale her husband, dated the 31st day of July 1708 years, registrate in the register of tailzies upon the and in the books of council and session upon and no otherways.”
In the obligation to infeft the Countess becomes bound “duly and lawfully to infeft
Page: 820↓
“And also providing and declaring, like as it is hereby expressly provided and declared, and appointed to be insert in and provided and declared by the instruments of resignation, charters, and infeftments appointed to follow hereupon, that it shall not be leisum nor lawful to the said Mr. Charles Hope, nor any of the heirs or members of tailzie above mentioned, to alter, innovate, or change the foresaid
Page: 821↓
tailzie and order of succession before mentioned, or to do any other deeds, directly or indirectly, in any sort, whereby the same may be anywise altered, innovate, or changed.”
This prohibition was also duly fenced with clauses irritant and resolutive, the contravener forfeiting for himself and the descendants of his body. There were likewise clauses prohibitory, irritant, and resolutive against selling, or contracting debt, expressed, mutatis mutandis, in the same way with those against altering the order of succession, the provision being always “hereby” specially made, so as to apply all these prohibitions, conditions, limitations, and fetters to the grant to the heirs of the destination of the marriage contract and tailzie.
The estate of Blackwood was destined to the same series of heirs, and the contract contained a variety of other provisions.
Charles Hope made up titles by charter of resignation and infeftment, dated 26th July and 18th August 1733, containing all the clauses in the contract of marriage, and referring also to the original entail.
The material parts of this charter were as follow:—
“Quæ quidem terræ et baronia de Craigiehall, comprehenden. ut prædicitur, cum decimis earund. inclusis, et lie cruive et salmonum piscatione super aquam de Almond, perprius hæreditarie pertinuerunt ad dict. Henrettam Comitissam de Hoptoun tanquam hæredem talliæ et provisionis, servit. et retornat. dict. quond. Domino Gulielmo Johnston, virtute dict. obligationis talliæ dict. terrarum et baroniæ de Craigiehall, per dict. quond. Sophiam Marchionissam de Annandale, cum consensu dict. quond. Gulielmi Marchionis de Annandale ejus mariti, et virtute cartæ et
Page: 822↓
infeofamenti sub sigillo postea specificat. super dict. obligationem talliæ in favorem dict. Comitissæ de Hoptoun sequen.; et per dict. Comitissam de Hoptoun, ejusque legitimos procuratores ejus nomine specialiter constitut., virtute procuratoriæ resignationis specificat. et content. in contractu matrimoniali facto et inito inter dict. Magistrum Carolum Hope, cum consensu dict. Comitis et Comitissæ de Hoptoun, ex una parte, et dict. Magistram Katharinam Weir, cum consensu curatorum inibi nominat., ex altera parte, ad hunc effectum. De data die mensis Julii, hoc præsenti anno 1733, debite et legitime resignat. fuere in manibus dict. Matthæi Lant, Armigeri, Capitalis Baronis, et reliquorum Dominorum Baronum dict. nostri Scaccarii pro tempore potestatem nostram haben. recipiendi resignationes et desuper nova infeofamenta concedendi, prout in manibus nostris immediate legitimi superioris earund.,—in favorem, proque novis infeofamentis earun. facien., et conceden. dict. Magistro Carolo Hope et hæredibus masculis legitime procrean. inter eum et dict. Magistram Katharinam Weir; quibus deficien., reliquis hæredibus talliæ supramentionat., eis substitutis per prædict. originalem obligationem talliæ modo supra express.; idque omnimodo cum et sub onere, reservatione, potestate, et facultate, conditionibus, declarationibus, provisionibus, et clausulis irritantiis suprascript., specificat. in prædict. originali obligatione talliæ dict. baroniæ de Craigiehall per dict. quon. Marchionissam de Annandale fact., et non aliter, vizt.; Providen. et declaran. omnimodo, sicuti per dict. obligationem originalem talliæ specialiter providetur et declaratur, et destinatur inseri Page: 823↓
et provideri et declarari per cartas et infeofamenta desuper sequen., quod dict. terræ, baronia, aliaque prædict. cum pertinen., et carta et infeofamenta desuper sequen., affectabuntur et onerabuntur cum omnibus justis et veris onerosis debitis et summis monetæ quæ per dict. Sophiam Marchionissam de Annandale, cum consensu dict. Gulielmi Marchionis de Annandale et Hartfel ejus mariti, contracta erunt, et quæ restan. non soluta erunt tempore ejus decessus. Nec non providen. et declaran., sicuti per dict. originalem obligationem talliæ expresse providetur, et destinatur declarari per cartam et infeofamenta desuper sequen., quod licitum et legitimum erit dict. Sophiæ Marchionissæ de Annandale, cum avisamento et consensu dict. Gulielmi Marchionis de Annandale, seu dict. Sophiæ Marcbionissæ de Annandale per seipsam, in casu decessus dict. Gulielmi Marchionis de Annandale ante illam, dict. terras, baroniam, aliaquè præscript., in toto vel in parte, hæreditarie et irredemabiliter, vendere et disponere, et prædict. talliam et ordinem successionis, ut dict. Sophiæ Marchionissæ de Annandale idoneum visum fuerit, per scripturam vel instrumentum sub manu ejus mutare et innovare; sub hac provisione solummodo, quod dict. potestas et facultas vendendi et disponendi, mutandi seu innovandi, solummodo exerceri potuisset per illos conjunctim, vel per dict. Sophiam Marchionissam de Annandale in casu decessus dict. Marchionis ante illam, si contigisset quod dict. Dominus Gulielmus Johnston non habebit descenden. ex ejus corpore (secundum ordinem mentionat. in dict. originali obligatione talliæ dict. terrarum et baroniæ de Craigiehall, et infeofamento desuper sequen.) et ullo alios filios Page: 824↓
juniores ex corpore dict. Sophiæ Marchionissæ de Annandale procrean. et descenden. ex eorum corporibus modo inibi mentionat., et quod Jacobus Dominus Johnston, postea Marchio de Annandale defunctus, et descenden. ex ejus corpore, etiam ad successionem provis. modo inibi express., deficere contigerit; ita quod dict. Sophia Marchionissa de Annandale,—ejus facultas disponendi, mutandi, et innovandi, solummodo locum attineret, si modo successionem ad alia membra talliæ devolvere contigisset quam ad dict. Dominum Gulielmum Johnston, et descenden. ex ejus corpore, et alios filios juniores ex corpore dict. Sophiæ Marchionissæ de Annandale procrean. et descenden. ex eorum corporibus, et descenden. ex corpore dict. Jacobi Domini Johnston, secundum ordinem successionis inibi specificat.; absque præjudicio verumtamen dict. Sophiæ Marchionissæ de Annandale debita contrahere, et onerare dict. terras, baroniam, aliaque suprascript., cum eisdem, etiam in persona dict. Domini Gulielmi Johnston, et omnium aliorum membrorum talliæ modo inibi express. Necnon providen. et declaran., sicuti per dict. originalem talliam specialiter providetur et declaratur, et destinatur provideri et declarari per cartas et infeofamenta desuper sequen., quod dict. Magister Carolus Hope et hæredes ex ejus corpore, et omnes alii hæredes et membra talliæ supramentionat., eorumque successores, qui succedere contigerint virtute dict. talliæ ad dict. terras, baroniam, aliaque prædict., tenebuntur et obligabuntur, immediate super eorum successionem ad easdem, insignia armoria de Fairholm cum eorum armis quadrare, lie quarter, omni tempore futuro, et insignia armoria de Fairholm Page: 825↓
cum eorum armis quadrata portare, gerere, et uti omni tempore deinceps; et si ulli dict. hæredum et membrorum talliæ supramentionat., quos succedere contigerit ad dict. terras et statum de Craigiehall, aliaque prædict., in eodem defecerint vel in contrarium fecerint, dict. hæres et membrum talliæ ita contraveniens, et descenden. ex corpore contravenientis, desuper ipso facto amittent et perdent eorum jus ad terras, baroniam, aliaque prædict.; et proximus hæres et membrum talliæ qui succederet ad easdem, si contraveniens et descenden. ex corpore contravenientis naturaliter essent defuncti, succedet et jus habebit ad dict. terras, baroniam, aliaque prædict., similiter et eodem modo ac si contraveniens et descenden. ex corpore contravenientis naturaliter essent defuncti; et hoc, vel per deservitionem hæredis personæ qui obiit ultimo infeodat. et sasit. immediate ante contravenientem, seu per actionem declaratoriæ, vel adjudicationem, aut ullo alio modo consisten. legibus et praxi hujus regni, sine subjectione ullis debitis seu summis monetæ contract. seu per contravenientem debit., vel ullis factis aut actis contravenientis: Ad quam irritantiam quadrandi, lie quartering, insignia armoria de Fairholm cum eorum armis dict. Magr. Carolus Hope et bæredes ex ejus corpore, et omnes alii hæredes et membra talliæ ad dict. terras et statum de Craigiehall antedict. succeden., astricti et obnoxii erunt omni tempore futuro sub irritantia supramentionat. Ac etiam providen. et declaran., sicuti per dict. talliam specialiter providetur et declaratur, et destinatur provideri et declarari per cartas et infeofamenta desuper sequen., quod si dict. Mr. Carolus Hope, vel hæredes masculi ex ejus corpore, Page: 826↓
seu ulli alii membrorum talliæ supramentionat., succedere contigerit et jus habere ad statum et dignitatem de Annandale, quod tunc et in eo casu eorum jus et titulum ad dict. terras et statum de Craigiehall, aliaque antedict., desuper devolvent, accrescent, cadent, et pertinebunt ad proximum membrum talliæ supramentionat., si ulli tunc existent, vel per deservitionem, seu actionem declaratoriæ, aut adjudicationem, aut ullo alio modo competen. per legem et praxem hujus regni. Nec non providen. et declaran., sicuti per dict. originalem obligationem talliæ specialiter providetur et declaratur, et destinatur inseri, provideri, et declaran per cartas et infeofamenta desuper sequen., quod si modo ulli dict. hæredum vel membrorum talliæ supramentionat. descenden. ex corpore dict. Comitissæ de Hoptoun, et succeden. virtute dict. originalis talliæ ad dict. terras et statum de Craigiehall, etiam succedere contigerint et jus habere ad statum de Hoptoun, et quod ulla substituta membra tunc existent,—tunc et in eo casu eorum jus et titulum ad dict. terras et baroniam de Craigiehall, aliaque prædiet., desuper ipso facto devolvent, accrescent, cadent, et pertinebunt ad proximum membrum talliæ qui succederet ad easdem si dict. hæres et membrum talliæ ita succeden. ad statum de Hoptoun naturaliter esset defunctus; et hoc, vel per deservitionem hæredis personæ qui obiit ultimo infeodat. immediate ante dict. hæredem vel membrum talliæ succeden. ad statum de Hoptoun, seu per actionem declaratoriæ, adjudicationis, vel ullo alio modo consisten. cum legibus et praxi hujus regni. Ac etiam providen. et declaran., sicuti per dict. originalem obligationem talliæ expresse providetur et declaratur, Page: 827↓
et destinatur inseri, provideri, et declaran per cartas et infeofamenta desuper sequent., quod non licitum aut legitimum erit dict. Magistro Carolo Hope, neque ullis hæredum vel membrorum talliæ supramentionat., prædict. talliam et ordinem successionis supramentionat. alterare, innovare, seu mutare, aut aliqua alia facta, directe seu indirecte, ullo modo facere, per quæ eadem ullo modo alterari, innovari, seu mutari poterit; et quod non licitum erit illis aut ullis eorum dict. terras et baroniam de Craigiehall, aliaque antedict., seu ullam partem earun., vendere, disponere, vadiare, vel impignorare, nec debita contrahere desuper, nec ullum aliud factum omissionis vel commissionis, seu civile vel criminale, agere, per quæ dict. terræ, baronia, aliaque antedict., aut ulla pars earundem, possunt appretiari, adjudican, evinci, caduciaria escheta fieri, vel confiscari; et si dict. Magister Carolus Hope, vel ulli dict. hæredum vel membrorum talliæ supramentionat., in contrarium fecerint, tunc et in eo casu omnia et singula dict. acta et facta, cum omnibus quæ desuper sequi contigerint, ipso facto vacua et nulla et nullius roboris, vis, aut effectus forent, similiter et eodem modo ac si dict. acta et facta nunquam facta, acta, aut commissa fuissent; et per dict. talliam declaratur quod persona ita contraveniens, et descenden. ex ejus corpore, immediate super contraventionem dict. provisionum vel ullorum eorum, amittent et perdent omne jus quod illi habuerunt aut pretendere potuissent ad dict. terras, baroniam, aliaque prædicta, cum pertinen.; et eadem in casu prædict. ipso facto cadent, accrescent, et pertinebunt ad proximum hæredem et membrum talliæ ad easdem succedere destinat., similiter ac in eodem modo ac si Page: 828↓
dict. persona ita contraveniens et descenden. ex ejus corpore naturaliter essent defuncti, et quod licitum erit proximo hæredi talliæ jus terrarum, baroniæ, aliorumque antedict. cum pertinen. in ejus persona stabilire; idque, vel per declaratoriam, aut deservitionem hæredis personæ qui obiit ultimo vestit. et sasit. in dict. terris et baronia de Craigiehall, aliisque antedict., immediate ante contravenientem, vel per adjudicationem, vel ullo alio modo consisten. cum legibus et praxi hujus regni pro tempore, sine respectu personæ contravenien. vel descenden. ex ejus corpore, et sine respectu ullius innovationis, alterationis, seu mutationis prædiet. per personam ita contravenien. facien., et sine onere ullorum actorum omissionis vel commissionis, aut ullorum aliorum actorum vel factorum qualiumeunque, quæ secundum legem interpretan vel inferre poterint contraventionem dict. clausularum irritantium seu ullarum earum; et persona ita succeden. super dict. contraventionem eisdem irritantiis subject. et obnox. erit quibus omnes hæredes talliæ supramentionat. subjecti et obnoxii sunt; except. et reservan. omnimodo ex dict. clausulis irritantibus suprascript. plenam potestatem et libertatem dict. Magistro Carolo Hope, et hæredibus et membris talliæ supramentionat. infeofamenti, providere vitalis annui redditus eorum uxoribus, et earum maritis, vice curialitatis, lie courtesy, (a qua per dict. originalem talliam excluduntur,) non exceden. justam et æqualem tertiam partem liberi annui redditus et divoriæ terrarum, baroniæ, aliorumque prædict., in quantum eædem liberæ et non affectæ sunt pro tempore cum prioribus vitalibus redditibus vel realibus debitis, et post deductionem usurævel annui redditus personalium Page: 829↓
debitorum quæ easdem affectare possunt; et similiter except. et reservan. potestatem et libertatem dict. Magistro Carolo Hope, aliisque hæredibus et membris talliæ, providere eorum liberos juniores, præter hæredem, ad trium annorum liberum redditum dict. status, quatenus idem liberum et non affect. sit vel oneratur pro tempore cum vitalibus redditibus et realibus debitis, et post deductionem annuorum reddituum personalium debitorum quæ idem affectare possint, ut dict. est. Nec non except. et reservan. ab et ex dict. clausulis irritantibus plenam potestatem et libertatem dict. Magistro Carolo Hope, et dict. hæredibus et membris talliæ, si opus fuerit, talem partem dict. terrarum, baroniæ, aliorumque prædict. vadiare, seu vendere et disponere hæreditarie, quantum satisfaciet et persolvet debita contract. per dict. Sophiam Marchionissam de Annandale, cum avisamento et consensu dict. Gulielmi Marchionis de Annandale ejus mariti, vel per dict. Magistrum Carolum Hope, seu alios bæredes et membra talliæ supramentionat., virtute facultatis et libertatis supra script. in eorum favorem concept., pro providendis uxoribus et liberis junioribus solummodo, et non ultra; et similiter providen. et declaran., sicuti per dict. originalem obligationem talliæ providetur et declaratur, et destinatur inseri et provideri et declarari per cartas et infeofamenta ordinat. desuper sequent., quod si ulla appretiatio, adjudicado, aut alia diligentia deducetur contra dict. terras, baroniam, et statum de Craigiehall, aliaque antedict., ullamve partem earund., pro ullis debitis contract. per dict. Sophiam Marchionissam de Annandale, cum avisamento et consensu dict. ejus mariti, vel per dict. Page: 830↓
Magistrum Carolum Hope, ullosve alios hæredum talliæ supramentionat., virtute potestatum et facultatum illis reservat., modo supraspecificat., tunc et in eo casu dict. Magister Carolus Hope, et hæredes talliæ qui possidebunt dict. terras et baroniam de Craigiehall, aliaque prædict., cum pertinen., pro tempore, tenebuntur et obligabuntur purgare et redimere dict. diligentias tres annos ante expirationem legalis earund., si modo dict. hæres contigerit succedere tres annos et sex menses ante expirationem legalis earund.; et si ille vel illa non succedet tam cito, obligabuntur easdem purgare infra sex menses post eorum successionem; et si eædem non purgatæ vel redemptæ erunt infra tres annos ante expirationem dict. legalis, saltem infra sex menses post eorum successionem, persona ita contraveniens, et descenden. ex ejus corpore, ipso facto amittent et perdent eorum jus dict. terrarum, baroniæ, aliorumque prædict., cum pertinen., et eædem immediate cadent, accrescent, et pertinebunt ad proximam personam qui succederet tanquam proximus hæres ad dict. terras et statum si contraveniens et descenden. ex ejus corpore naturaliter essent defuncti, et jus habebit purgare et redimere dict. diligentias; idque sine subjectione debitis et factis contravenientis; et hoc, vel per declaraloriam, seu deservitionem hæredis hæredi vel membro talliæ qui obiit ultimo vestit. et sasit. in dict. terris, baronia, aliisque prædiet. ante contravenientem, vel per adjudicationem, ullove alio modo cum legibus et praxi hujus regni consisten.; et persona succeden. super dict. contraventionem subject. et obnox. erit eædem irritantiæ, si non purgaverit easdem diligentias infra Page: 831↓
sex menses post devolutionem successionis per priorem contraventionem; cui obligationi purgandi infra sex menses, tam cito ac dict. diligentiæ sunt infra tres annos expirandi, dict. universi hæredes talliæ, successive post alios, sub periculo earundem irritantiarum, subjecti et obnoxii erunt per omnem successionem omni tempore futuro; cum et sub onere cujusquidem reservationum, provisionum, et conditionum supra mentionat. inseri in cartis et infeofamentis desuper sequend., prædict. procuratoria resignationis in contractu matrimoniali supramentionat. fact. erat per dict. Henrettam Comitissam de Hoptoun, cum consensu dict. Caroli Comitis de Hoptoun, ejus mariti, et virtute ejusdem resignatio facta erat in favorem dict. Magistri Caroli Hope, aliorumque bæredum supramentionat. illi substitut. secundum originalem talliam dict. status supra mentionat., et non aliter; prout authentica instrumenta in manibus Alexandri Hay, notarii publici, sumpta, 26to die mensis Julii anno Domini 1733, in seipsis latius proportant; tenen. et haben. dict. terras et baroniam de Craigiehall, molendina, salmonum piscationes, aliaque suprascript., cum pertinen. jacen. ut prædicitur, dicto Magistro Carolo Hope, et hæredibus talliæ illi substitut., modo suprascript., de nobis et successoribus nostris, in libera baronia, feodo, et hæreditate in perpetuum, cum et sub omnibus provisionibus, conditionibus, reservationibus, oneribus. et clausulis irritantibus,” &c.
Charles Hope possessed the estate under these titles, with the exception of a small portion which he conveyed to his son, William Hope Weir, till his death, which happened on the 19th December 1751, a period of about fifty-eight years.
Page: 832↓
His son William Hope Weir, made up titles by special service to his father, as heir male of tailzie and provision, in virtue of the entail of 1708, and the marriage contract of 1733, and in terms of the destination contained in the Crown charter following on that contract, but without subjoining to the last substitution any reference as conform to the destination of the entail of 1708. The retour contained all the prohibitory, irritant, and resolutive clauses, and especially the clause against altering the order of succession under the contract and charter of 1733. He possessed the estate (with the exception of a part conveyed to his eldest son, James Joseph Hope Vere, for the purpose of creating a vote,) until his death.
Upon this event his son made up titles by special service and infeftment in the year 1812, in precisely the same manner as his father had done; and in the year 1822, he brought an action of declarator and reduction against the substitute heirs of entail, in which he concluded to have it found, that the destination in the contract of 1733, did not operate as an alteration of the destination in the original entail of 1708, that his grandfather and father, and he himself, had possessed the estate under the original entail, and alternatively to have the contract of marriage, and all the subsequent titles reduced, so far as containing a destination different from that entail.
In defence it was maintained, first, that the pursuer, being a descendant of Henrietta Countess of Hopetoun, was barred from insisting in any reduction of her deeds as in contravention of the entail, because the contravener forfeited not only for himself or herself, but also for his or her descendants. Secondly, that supposing the pursuer were not barred from insisting in the reduction, the action was excluded by prescription.
Page: 833↓
The Lord Ordinary (Mackenzie), on the 4th of February 1823, sustained the defences, assoilzied the defenders, and decerned. After a variety of procedure, the Court, on the 12th of February 1828, adhered to this interlocutor generally, but, remitted to the Lord Ordinary to hear parties as to the small portions of the estate, embraced within the titles, by which votes were created in favour of the pursuer and his father. 1 No further procedure took place in that action; and the pursuer then raised another action of declarator, for having it found, that he was entitled to hold the estate of Craigiehall in fee simple, or at least subject to no valid prohibition against altering the order of succession.
The Lord Ordinary reported the question on these cases to their Lordships of the First Division, who, in respect of the importance and difficulty of the question, resolved to take the opinion of the other Judges. With this view the following queries were laid before their Lordships:—
“First, Whether, under the circumstances stated on the record, there is a valid subsisting entail of the estate of Craigiehall, whereby the pursuer of the present action, Mr. Hope Vere, is effectually prohibited from altering the order of succession, contracting debt, and selling the said estate?
Secondly and separately, Whether, in so far as regards the lands of Upper Craigie and others, of which a Crown charter was passed in 1758, upon the resignation of Charles Hope Weir, Esquire, in favour of himself in life-rent, and William Hope Weir his son in fee, there is a valid subsisting entail whereby the pursuer is effectually prohibited from altering the
_________________ Footnote _________________
1 6 S. D. 517.
Page: 834↓
The cause being afterwards heard in presence of the whole Court, an opinion in writing was given in by the Lords of the Second Division and Permanent Lords Ordinary 1 to the following effect:
“The summons in this action bears, that the pursuer is entitled to have it found and declared, “that he now holds, or may hold, the said lands and estate of Craigiehall and others, subject to no fetters, conditions, or restrictions of entail, or at least that he holds or may hold the said lands subject to no valid prohibition against altering the order of succession;” and therefore, it concludes for a decree of declarator against the heirs called by the destinations of the estate, “that the pursuer does hold, or is now entitled to hold, the said lands of Craigiehall and others, subject to no fetters, conditions, or limitations whatever, at least subject to no valid prohibition against altering the order of succession.”
The particular question which is raised under this conclusion is, Whether, by the form and construction of the investitures of the estate constituted by the charter of resignation of date the 26th of July, 1733, the restrictions and limitations of entail therein expressed, are effectually applied to the heirs to whom the estate is destined by that deed, and the marriage contract on which it proceeds, and for the protection of the course and order of succession thereby laid down?
_________________ Footnote _________________
1 Lords Glenlee, Cringletie, Meadowbank, Mackenzie, Medwyn, Corehouse, Fullerton, Moncrieff. The Lord President declined himself, as did also the Lord Justice Clerk.
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There is no doubt, that in this question the pursuer is entitled to a strict construction. For though this is a declarator inter hæredes only, the question relates to the imposition of fetters or restraints upon the right of property, and in all such questions a strict interpretation must be given. We understand this principle, as established by the authorities and decided cases, to mean, not merely that without direct words such limitations cannot be imposed from presumed or implied intention, but that even where there are words within the deed having a certain tendency to indicate the intention of the granter, they may, under the strict construction of the law of entail, fail of effect, either from want of technical precision, or from error in the form and manner in which they are introduced.
But taking this principle to be undoubtedly fixed, we hold it to be clear, on the other hand, that the necessary clauses of limitation may be imposed on the heirs called in various forms. There are certain technical words in general use, some of which are essential in the clauses themselves. But there is no fixed rule as to the place or form in which they may stand in the deed. It is not even essential, in the first constitution of an entail, that the clauses should be within the deed itself, though, under the statute 1685, it is necessary to make it effectual against third parties, that they should be engrossed in the investitures following on it. For it has been repeatedly decided, that an entail may be effectually made by reference—by declaring that the lands shall be taken and held under all the conditions, prohibitory, irritant, and resolutive, expressed in an entail
Page: 836↓
In the present case, the question appears mainly, if not exclusively, to depend on the charter of resignation 1733, and the seisin following on it, which have been found to constitute a prescriptive title in favour of the series of heirs therein mentioned. It may perhaps admit of some doubt and difference of opinion, whether, as the charter proceeds expressly on the procuratory of resignation in the marriage contract which immediately preceded it, it may not be competent to look into that contract for an explanation of any thing which may appear to be doubtful in the charter itself. But as the pursuer and his predecessors have possessed, by charter and seisin, far beyond the years of prescription, according to the terms of the investiture on the charter, and as that has been found to constitute a
_________________ Footnote _________________
1
Don v. Don,
Feb. 5, 1713, Forbes, 654. Mor. 15591.
2
Lawries v. Spalding,
July 24, 1764, Fac. Coll. 3. 324. No. 140. Mor. 15612.
Page: 837↓
It seems, however, to be very clear, that if the pursuer is allowed to hold by the charter exclusively, he must take it as it is, and stand by it absolutely and consistently. If we are to go out of it all, the most material deed referred to is the marriage contract; and if that be looked into, the intention at least is perfectly certain. But if all explanation by means of the contract is to be excluded, neither can the old entail of 1708, be considered in its particular clauses, to the effect of qualifying or affecting the operation of the limiting clauses in this charter.
In the cause which was decided between the same parties, by the Lords of the Second Division, it did certainly appear, that there was a discrepancy in legal effect between the destination in the entail 1708, and the destination in the marriage contract and charter 1733. And, notwithstanding the reference from the one to the other, it was held that the charter must regulate the succession, that is, that the lands were effectually resigned, and charter and seisin given, in favour of the series of heirs therein specified.
In the present question, it does not appear that the discrepancy between the two destinations is material, or competent for the consideration of the Court. The point settled is, that the heirs called are the heirs expressed in the dispositive clause of the charter. And the single question now is, Whether the fetters, as laid down in that deed, are effectually applied to the heirs so called, and to the order of succession so appointed?
Page: 838↓
There is difficulty in this question, arising from the peculiar structure of the charter. It has not been framed, as it ought to have been, according to a correct system of conveyancing. The dispositive clause, as it stands in the commencement of the deed, makes no mention of conditions or limitations. The grant and disposition is made to Charles Hope and the series of heirs particularly mentioned, and then there is a reference to the entail 1708, which reference may either relate to the whole destination under a mistake as to the effect of it, or only to the heirs who come after the special heirs of Charles Hope in his marriage with Katherine Weir, or in any subsequent marriage—the words admitting of either construction. But, however it be taken, it is settled that this reference does not qualify the destination. The lands are then inserted by general description.
The clause of Quæquidem is very inaccurately framed. It bears that the lands had belonged to Countess Henrietta, and that they were resigned in virtue of the procuratory granted by her in the marriage-contract, specified by its date, ‘in favorem,’ &c. Then follows what ought to have been an exact recitation of the procuratory. But it is not so; and to this cause we attribute all the difficulty, or appearance of difficulty, which there is in the case. It does not insert the destination. But it must clearly be held, in consonance with the former decision of the Court, that the words “reliquis hæredibus talliæ supramentionat.,” and the words “modo supra express.,” relate to and take in the destination, as given in the dispositive clause, notwithstanding the inter veiling words of reference to the original bond of
Page: 839↓
It seems to be unnecessary to go into a minute analysis of the whole clauses. There are some of them, in which, from the awkward manner in which the sentences are framed, the purpose of the parties, in so far as it may be legitimate to collect it from the marriage contract, might fail of effect. As an example, we may refer to the provision for the event of any of the heirs succeeding to the honours and estate of Hopetoun. But, attending to the conclusions of the present action, it seems not to be at all necessary to resolve every particular case which might in possibility arise. The material point is to consider, whether the ordinary clauses, prohibitory, irritant, and resolutive, are applied to the heirs in whose favour the resignation was made and the charter of resignation granted, and for the protection of that destination.
These clauses are “Ac etiam providen. et declaran., sicuti,” &c. Under this word ‘sicuti’ there is a reference to the old entail, but the “providen. et declaran.” are clearly part of the procuratory of resignation narrated. And what is provided and declared? “Quod non licitum aut legitimum erit dict. Magistro Carolo Hope, neque ullis hæredum vel membrorum talliæ supramentionat. prædict. talliam et ordinem successionis supramentionat. alterare,
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The prohibitory clause, therefore, appears to be sufficient, and it is not said that it does not contain all the necessary words. A question has been raised on the resolutive clause. There is perhaps some difficulty in the construction of the words and sentences, but we think that the words providen. et declaran cover all these clauses. The ‘sicuti’ reaches them also, adopting the clauses of the old entail, but applying them to the heirs of the charter itself. And the words ‘et per dict. talliam,’ &c. might perhaps be considered as a continuation of that part of the sentence which forms the irritant clause, beginning “et si dict. Magister Carolus Hope,” &c. shall do in the
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The powers reserved are clearly reserved to the heirs of the charter, and then the conclusion of the quæquidem bears—‘Under the burden of which 1 reservations,’ &c. the resignation was made in favour of Charles Hope ‘aliorumque hæredum supramentionat.,’ where this last word must necessarily be a genitive, and refer to the heirs as before mentioned, and of course, according to the previous decision, not qualified by the reference to the old entail which follows.
The quæquidem clause being finished, the clause of tenendas is then brought in, and this undoubtedly is very clear and precise. The lands are to be held by Charles Hope, and the heirs of tailzie substituted to him “modo suprascript., cum et sub omnibus provisionibus, conditionibus, reservationibus, oneribus, et clausulis irritantibus particulariter supra express.,” without any reference to the old entail. And, finally, the precept of seisin refers to the conditions in similar absolute terms.
On a review of the clauses of this charter, we are
_________________ Footnote _________________
1 There is a mistake in the word cujusquidem, but is is of no consequence.
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The restraining clauses are not in this case engrossed in the dispositive clause. But as a charter of resignation is not an original writ, but the act of the superior, upon the resignation of the vassal, we are of opinion, that, in a title-deed of this nature, it is sufficient, to render the clauses effectual, that they are clearly laid down in the recitation of the terms on which the resignation was made, and referred to in the clause of holding and in the precept of seisin.
On the whole, in answer to the first question proposed to us, we are of opinion, that, under the circumstances stated on the record, there is a valid subsisting entail of the estate of Craigiehall, whereby the pursuer of the present action, Mr. Hope Vere, is effectually prohibited from altering the order of succession, contracting debt, and selling the said estate.
We do not understand that our opinion is now required on the second question originally submitted
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In consequence of no answer being returned to the second of the queries, the case was remitted back for an opinion upon that question. This additional opinion was given:”
“We understand it to be the desire of the parties expressed in the minutes that we should make some answer to the second question which was proposed for our opinion by the Lords of the First Division, in order that the cause may be exhausted in this Court, so far as it can be now exhausted.
That question is, Whether, in the particular situation of the lands of Upper Craigie, in respect of the Crown charter in 1758, as described in the question, there is a valid and subsisting entail as to these lands by which the pursuer is effectually prohibited from altering the order of succession, contracting debt, or selling the lands?
We are of opinion that it is impossible to give any satisfactory judgment on that question in the present action until some further proceedings shall have been taken by the pursuer, or by one of the parties, for finally disposing of the previous action referred to in the record, which, in so far as it related to these lands of Upper Craigie, is still in dependence in the Second Division of the Court.
By the summons in that action the pursuer concluded to have it found, that he was entitled to possess the lands comprehended in it by the title of the old entail of 1708, under all the conditions and limitations of that deed. But when the Court decided the question
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which was there raised in regard to the other lands, they remitted “to the Lord Ordinary to hear counsel for the parties further on the effect of the conveyance by Charles Hope Vere, the pursuer's father, dated the 11th of February, 1758, and titles following thereon,”—“and to do therein as his lordship shall see just.” The titles thus referred to, are those, which apply to the lands of Upper Craigie. But we do not find that any farther discussion has taken place under the remit; and the action is still in Court, but before the Second Division. Attending, therefore, to the nature of the conclusions in the present action, compared with those in the former, and to the grounds of argument employed in support of them, it seems to us to be altogether impossible to give any judgment on the question now submitted to us until it be first determined, in the previous depending action, whether the pursuer must be held to have possessed these lands of Upper Craigie by the title of the old entail, or by what other title he has possessed them, or at least until that other action shall have been in some manner disposed of in its application to the lands in question.”
The judges of the First Division concurred in that opinion, and the Court, on the 5th of March, 1833, pronounced the following interlocutor:—
“The Lords sustain the defences, and assoilzie the defenders, so far as respects all the lands and estate mentioned in the summons of declarator, except the lands of Upper Craigie and lands of Standanstain, with the teinds contained in the charter 23d February, 1758, and decern; and as to the lands and teinds in the said
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charter 1758, they reserve the consideration of the entail of these, until the issue of the action of declarator, and reduction, still in dependence in the Second Division of this Court: Find the pursuer liable in expenses, appoint an account to be put in, and remit to the auditor to tax the same, and to report.” 1
Thereafter, on the 22d June, 1833, decree for expences was pronounced.
Mr. Hope Vere appealed.
Appellant.—1. By the true construction of the deeds constituting the investiture under which the appellant holds the estate of Craigiehall, no fetters or limitations of entail were effectually imposed on the heirs of that investiture, but only on the heirs under the old entail of the Marchioness of Annandale, which has long since been extinguished by prescription.
All the judges agree that in the present question the appellant is entitled to the benefit of a strict construction of the investiture in his favour. This principle has been illustrated in the late case of Morehead against Morehead 2, which so far resembled the present, that there the question was, whether the fetters of entail were imposed on the institute, or merely on the substitutes? while here the point in dispute is, whether they are imposed on the heirs of a new investiture, or of the old?
Although it were conceded, that the intention of the Countess of Hopetoun, was to create a new entail by the marriage contract of 1733, still, if the charter
_________________ Footnote _________________
1 11 S., D., B, 520.
2 1 Shaw and Maclean's Ap. C. p. 28.
Page: 846↓
The structure of the charter of resignation, which forms the basis of the investiture, is of a very peculiar and anomalous nature. In the usual form, where it is meant to impose the fetters of an entail, they are introduced into the dispositive clause as conditions of the grant. But in this case the dispositive clause contains no limitation; it simply dispones the lands to Charles Hope and the other heirs therein mentioned. Then comes the quæquidem clause, or recital of the former holding of the lands, which is merely narrative, and neither does nor is it intended to impose any substantive fetters. The tenendas clause, merely declares, that the lands given by the dispositive clause are to be held “cum et sub omnibus provisionibus, conditionibus, reservationibus, oneribus, et clausulis irritantibus particulariter supra express.”
The appellant does not admit, that an entail can be effectually made by a narrative of the conditions of entail in the quæquidem clause, coupled with a declaration in the tenendas that the lands are to be held under all the above conditions. The usual and natural course is to insert the limitations in the dispositive clause. But, waiving this objection, it is plain, that unless the provisions and limitations are set forth in the quæquidem as clearly applicable to the series of heirs introduced by the dispositive clause, they never will be made applicable to them by the tenendas. That clause takes them as they stand, and substantially reimposes
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But all the provisions and conditions as set forth in the quæquidem clause are declared applicable only to the heirs of the tailzie 1708; and consequently, as there is no clause declaring, that these shall be applicable, mutatis mutandis, to the heirs of the marriage contract, there is no substantive imposition of any fetters upon them.
The only deed mentioned in the charter of 1733, is a tailzie, the entail of 1708. It is described in the outset of the charter as “obligatio talliæ status de Craigiehall per dict. quondam Sophiam Marchionessam de An nandale.” Next, in the quæquidem, the Countess of Hopetoun is described as “hæredem talliæ et provisionis,”—
“virtute diet, obligationis talliæ,”
—“per dict. Sophiam Marchionessam de Annandale.” In these cases the terms “talliæ” and “hæredem talliæ” apply entirely to the old entail.
But further, it must be observed in whose favour and for what purpose the resignation is stated to have been made. The deed expressly bears, that it was for new infeftment to Charles Hope and his heirs male; whom failing, “reliquis hæredibus talliæ supramentionat. eis substitutis per prædict. originalem obligationem talliæ,” and that on the conditions “specificat. in prædict. originali obligatione talliæ dict. baroniæ de Craigiehall per dict. quon. Marchionessam de Annandale fact. et non aliter.”
This express declaration cannot be explained away, by saying that its meaning is, that resignation was to be made in favour of the heirs mentioned in the dispositive clause, whom the grantor believed to be identical
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In the opinion of their Lordships it is said the words “heirs and members of tailzie ‘supramentionat.’ are so put in opposition to the provisions of the original entail, that the ‘supramentionat.’ must relate to the heirs of tailzie above mentioned, and cannot relate to the entail of 1708.” The words of the clause, appear to lead to an exactly opposite conclusion:—
“Except. et reservan. omnimodo ex dict. clausulis irritantibus supra script. plenam potestatem et libertatem dict. Magistro Carolo Hope et hæredibus et membris talliæ supramentionat. infeofamenta vitalis annui redditus eorum uxoribus et earum maritis vice curialitatis, lie courtesy, a quâ per dict. originalem talliam excluduntur.”
The original entail prohibited terce and
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It is then clear, that the terms “tallia” and “hæres talliæ,” as used in the charter of resignation, are uniformly applied to the entail of 1708, and that there is no one instance in which they can be shown to have been used as applicable to the marriage contract, or to the destination which it contains.
2. But independently, of the view that none of the restrictions are imposed on the heirs of the contract, there is a defect in the present entail which entitles the appellant to have it found, that he is laid under no effectual prohibition against altering the order of succession. Assuming that the prohibitory and irritant clauses are effectual to reach the heirs of the marriage contract, and that these are complete in themselves, there is a palpable defect in the resolutive clauses.
The prohibitory and irritant clauses are introduced thus:—
“Ac etiam providen. et declaran, sicuti per dict. originalem obligationem talliæ expresse providetur et declaratur,”
—“quod non licitum aut legitimum erit,” &c., and then follows the enumeration of the acts prohihited, and a declaration in the irritant clause that such acts shall be void; that is to say, (keeping in view the structure of the deed, and the fact that all the
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“Et per dict. talliam declaratur quod persona ita contraveniens et descen. ex ejus corpore, immediate super contraventionem dict. provisionum vel ullarum earum, amittent et perdentomne jus quod illi habuerunt aut pretendere potuissent ad dict. terras, baroniam, aliaque prædict., cum perlinen., et eadem in casu prædict. ipso facto cadent, accrescent, et pertinebunt ad proximum hæredem et membrum talliæ ad easilem succedere destinat., similiter ac in eodem modo ac si dict. persona sic contraveniens et descend. ex ejus corpore naturaliter essent defuncti.”
The difficulty arising upon this clause has been thus solved by the judges.
They say, “There is perhaps some difficulty in the construction of the words and sentences, but we think that the words ‘providen. et declaran.’ cover all these clauses. The ‘sicuti’ reaches them also, adopting the clauses of the old entail, but applying them to the heirs of the charter itself; and the words ‘et per dict. talliam,’ &c. might perhaps be considered as a continuation of that part of the sentence which forms the irritant
Page: 851↓
“Providing and declaring, as it is provided and declared by the original entail, that it shall not be lawful, &c.; and if any of the heirs shall do in the contrary, their acts shall be void; and, as it is declared by the said tailzie, that the person so contravening shall forfeit,” &c.
This reading can only be arrived at by a stretch of construction which, after the judgment in the late case of Sharpe 1, cannot be supported. It can only be made out either by leaving out the words “et per diet. talliam declaratur quod,” and inserting the word “et,” so as to make the resolutive clause connect with the irritant, and thus to bring both under the operation of the words “providen. et declaran, sicuti per dict. originalem obligationem talliæ declaratur,” with which the prohibitory clause is prefaced; or else by inserting in the commencement of the resolutive clause, the words “providen. et declaran. sicuti,” so as to give it a substantive force. As the words stand, they cannot be construed as is done in the opinion of the judges, for there is no warrant for the insertion of the word, “as,” by which they connect this clause with those which preceded it.
If the appellant be right in holding that there is properly no resolutive clause in the charter, he is entitled to decree finding that he holds the lands without any
_________________ Footnote _________________
1 1 Shaw & Maclean, Ap. C., p. 594.
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Respondents:—The ground, upon which the appellant seeks to have it found that he is free of the fetters of the entail, generally is, that from the form of the charter of resignation of 1733, the fetters, instead of having been directed against the heirs called by that deed, have been imposed upon the heirs of the old entail of 1708, who are a different series from those called by the destination of 1733. The appellant has endeavoured to show that there are principles of law, as affecting the construction of deeds of entail, involved in this question. Yet it is one purely of technical Scotch conveyancing; neither is the unanimous opinion of the Court below upon such a matter upon light grounds to be disturbed.
_________________ Footnote _________________
1 Stewart v. Fullerton, 23d Feb. 1827, 3 S. & D., p. 418 & p. 396, (new edit.); Reversed in House of Lords, 16th July 1830, 4 Wilson & Shaw, p. 196.
2 Bruce v. Bruce, 15th Jan. 1799, Mor. 15539.
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The respondents do not dispute the plea of the appellant, that deeds of entail must be strictly interpreted, that fetters are not to be reared up, or imposed by implication, and that the intention of the party, however clear or explicit, is immaterial in a question of this kind, unless that intention has been carried into effect by a deed properly expressed in clear technical language. Their plea is, that, looking rigidly to the terms of the charter of 1733, and construing that deed according to the true sense of the words actually used, the fetters have been imposed Upon the heirs of the destination thereby called to the succession. There are two ways in which that deed may be construed, by viewing it either with reference to the other deeds which preceded it, and with a due regard to its meaning and purpose, or by viewing it as it stands, without going beyond its four corners. In the opinion of the judges it is held that the sounder mode of determining the question is to look at the investiture of 1733, per se, without reference either to the terms of the marriage contract or to the tailzie of 1708. On that strict view of the case, the respondents are quite ready to put their argument, but they are also equally ready to argue the case upon the sound construction of the charter, looking at the contract as its warrant, and to all that preceded it.
Whether by the contract of 1733, it was intended to alter the destination of 1708, and purposely to commit an act of contravention or not, (which might have been done with perfect safety, as nobody could have challenged that act of contravention,) it is not material to inquire. One thing is perfectly plain, that the contract of 1733, imposed fetters on the heirs of the destination, called by that contract. Whether the fetters
Page: 854↓
Upon the procuratory contained in that contract, the Crown charter of resignation was expede, and infeftment
Page: 855↓
Now, while on the one hand it is admitted, that defects in a tailzie are not to be supplied by inference, and, on the other, effect is not to be given to strained or oversubtle constructions, it is to be observed, that the act of 1685, contains no form or order in which the various clauses of a deed of entail are to be set forth. There must no doubt be effectual prohibitions, with irritant and resolutive clauses, with such provisions and conditions “as the granters may think fit,” and these provisions and irritant clauses, must be set forth in the subsequent investitures, and the tailzie recorded in the register of entails. But if the maker of the tailzie comply with these requisites, and express each prohibition in proper language, and fence it with irritant and resolutive clauses, he has satisfied the statute, and it is of no importance in what order or form the different provisions of the deed may be arranged. Nay, it has been
_________________ Footnote _________________
1 Duntreath case, 1771, Mor. Feb. 1, 1799; Mor. 15452; Jan. 19, 1804, Mor. 15559; Feb. 26, 1801, Mor. App. voce Taillie, p. 15; July 13, 1722.
Kennedy v. Arbuthnot;
July 13, 1722, Kames, It. Dec. 1. 65, No. 33; Mor. 1681, Feb. 1725; Kames, R. Dec. 1. 109, No. 57; Mor. 12615, July 8, 1725. Edgar, 185. Mor. 1477.
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But, looking at the terms of the charter of 1733, exclusively, which, with the infeftment following upon it, has been found to constitute a prescriptive title, it seems impossible to make out that it has not effectually imposed the fetters of a strict entail upon the heirs of the destination which it contains.
It proceeds upon the procuratory contained in the marriage contract,—gives to the heirs of that contract the lands, which are duly resigned for new infeftment “in favour of Charles Hope, and the other heirs above mentioned, and that always Under the conditions underwritten, and no otherwise, viz.” Then, after the conditions with the different irritancies are verbatim set forth, the charter declares that the resignation was made with and under the burden of the conditions so above inserted, in favour of the heirs above mentioned, to be holden under the conditions above expressed. The grant is thus to the heirs of the marriage, and it is made only under the conditions set forth in the investiture.
It is true that the conditions are not inserted in the dispositive clause, and merely appear in the quæquidem. The style, as given in the present style-books, no doubt inserts the conditions in the dispositive clause. But if the grant be given under certain conditions, and these are expressed in the deed, it cannot be said that this is an unconditional grant. Upon this point the appellant argues most inconsistently, for he does not
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_________________ Footnote _________________
1 Dallas's Styles, Part ii. pp. 600, 614.
Page: 858↓
Now if it is incompetent to go beyond the charter of 1733, how does it appear that there ever was an entail in 1708, at all, or, that that deed contained a destination different from the charter of 1733? The charter says, it is provided hereby, as it was provided by that old entail, “sicuti providetur.” The charter therefore necessarily leads to the conclusion, that the provisions were the same. The destination is set forth as contained in the contract of marriage, and in the old entail, so that from this also it must be concluded that the destinations were identical. Two opposite and conflicting destinations—two inconsistent deeds of entail.—cannot be gathered from the charter of 1733, to have existed. Looking at the charter alone, they must be held to be one and the same; and if prescription has set its seal upon that charter, as excluding all inquiry beyond it, then it is even incompetent to aver that there is a discrepancy betwixt the two investitures which that charter treats as identical. If there had been no entail in 1708, or had the entail of 1708, been liable to some radical delect in its prohibitions, or had all or any of the conditions set forth in the charter, been different from the corresponding conditions in the tailzie of 1708,—had it been a mistake to say “sicuti providetur et declarator,” either because there was no old entail at all, or no effectual entail, or because the entail provided differently, it clearly could not have been maintained, that in any of these events, the heirs of the contract of 1733, were not bound. The erroneous reference never could have taken away the force of the direct binding words, and no substitute could have contended that he was freed from the conditions
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The investiture of 1733, having been declared to be a prescriptive investiture, the effect of that declaration is to exclude all inquiry into the state of the prior titles, and all reference to the entail of 1708. The existence of the old entail, therefore, and its terms, are matters as irrelevant to the succession of this estate, as the terms of any other entail, with which the lands of Craigiehall have no connexion. But if the reference to the destination in the old entail cannot control the destination called by the deed of 1733, that reference cannot have the slightest effect, with the view of working off the fetters of the deed of 1733. That deed does not set forth the destination of the entail of 1708; and if it once be admitted, as it seems impossible to deny, that fetters are imposed by the charter of 1733, and if that charter is the prescriptive title, beyond which it is incompetent to look, it can never be held that the fetters thereby imposed, are wrought off because, a prescribed and extinct investiture can be shown by inquiry, extrinsic to the investiture of 1733, to have a different destination; nor can this be maintained, because the deed contains a reference to that extinct investiture, for it is res judicata, that that reference is
Page: 860↓
By the judgment in the former case, it was decided that the investiture of 1733, being fortified by prescription, it was incompetent to go beyond that investiture, even for the purpose of explaining it, and if so, still less can such reference be permitted for the purpose of contradicting it. The same principle has guided the determination of the Court in various cases. Thus in the case of the Duke of Buccleuch v. Cunynghame, 30th November 1826, 1 it was held, “that a party having possessed an estate on a title from the Crown for upwards of forty years had acquired a prescriptive right, although his title bore that the Crown had right by virtue of the act of annexation, in which there is an express exception of the right of the Crown to such lands.” The same rule was followed in the case of Forbes against Livingston. 2
_________________ Footnote _________________
1 Duke of
Buocleuch v. Cunynghame,
Nov. 30, 1826, 5 S. & D. p. 57, (new. edit.) p. 53.
2
Forbes v. Livingston,
Jan. 31, 1822, 1 S. & D., p. 282, (new edit.) p. 263; 1 W. & S. App. C. p. 657; Rem. Nov. 29, 1827; 6 S. & D., p. 568, (new edit.); Feb. 16, 1832, 10 S. & D. p. 341, (new edit.)
Page: 861↓
From the course, however, which we are about to recommend to your Lordships in both of these cases, the impossibility of entering into a detail of those reasons in the one case, or of giving any thing more than a mere general statement of opinion in the other, is the less to be regretted upon two accounts: first, because we are prepared to recommend to your Lordships, to affirm in both appeals: secondly, because in the course of the very elaborate arguments which were held
Page: 862↓
My Lords, the case of Vere v. Hope, the first of these cases, arose from an action of declarator brought by Mr. Hope Vere the present owner, under an entail of the estate of Craigie Hall, in which the other heirs of entail were called to appear for the purpose of having it declared that he was free from the fetters of an entail said to have been constituted in a charter executed by the Countess of Hopetoun in 1733, or at least to have it found that he was free from any fetters which should effectually prohibit him (that is to say, by prohibitory, irritant, and resolutive clauses,) from altering the order of succession in those estates. The question then, which was raised in the appeal which had been made before the Court below, upon which the opinions of the other judges had been taken, and upon which their Lordships after much deliberation had pronounced their unanimous opinion, was substantially, Whether, upon the true construction of the deed of conveyance of 1733, by itself, or the two deeds of 1733, and 1758, together, constituting the investiture under which the estates are held, there is an effectual prohibition against the heirs of entail successively, of whom the appellant
Page: 863↓
My Lords, this is a question purely of Scotch conveyancing; it would therefore have required a case very clear from any doubt,—it would have required a very strong, and unhesitating opinion, to have been found by my noble and learned friend or myself,—to have justified us in recommending to your Lordships to alter in this place, a judgment so pronounced, by such authority upon such a question; nevertheless if upon examining the case fully,—if on minutely sifting the different parts of this instrument,—we had come to the conclusion that there was error in the judgment of the Court below, that the reasons which were supposed to justify its decision were insufficient, and that the arguments tendered to your Lordships in support of that judgment were not satisfactory, we certainly should have had no hesitation in doing upon this occasion, that, which we have done on former occasions of a similar description, and which this House expects shall be done whenever it may be necessary by those filling the situations which we have held, and still hold, of advising your Lordships in matters of law, though the questions on which those
Page: 864↓
My Lords, there was another property involved in the same question on which the consulted judges in the Court below were on the second remit (not having answered on the first) again consulted,—I mean the lands of Craigie and Standingstanes,—Whether the tailzie of that estate was sufficiently constituted, and the first deed made effectual by the subsequent deed of 1758? That question, however, has not been disposed of in the Court below, but has been reserved in consequence of other proceedings in an action of declarator and reduction now pending in the Second Division. The judgment I propose to your Lordships will affirm the interlocutors appealed from of the 5th of March, 1833, and that of the 22d of June, 1833, (which merely related to the costs), and will not affect in any degree the interlocutory part relating to the estate of Craigie, and Standingstanes, on which I will not make on the present
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The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House; and that the interlocutors, so far as therein complained of, be and the same are hereby affirmed.
Solicitors: Richardson & Connell — Spottiswoode & Robertson, Solicitors.
