(1767) 3 Paton 651
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.
(Mor. 14,019, et Lord Monboddo's Remarks, 5 Brown's Sup. 926, et Bell's Com. p. 659.)
House of Lords,
Subject_Entail — Registration — Act 1685 — Passive Representation. —
(1.) An entail Mas made, and charter and infeftment passed thereon some years before the Act 1685, regarding the recording of entails, Held, that in order to protect against creditors, such an entail must be recorded. (2.) An heir succeeding, not by an universal title, but as heir under a particular destination, and not hæres alioquin successurus, found only liable to the extent of the value to which he succeeded.
Sir Archibald Primrose, Bart., executed a strict entail of his estate of Carrington, or Primrose, in 1680, in favour of his eldest son, Sir William Primrose, and the heirs male of his body, with several remainders over. Charter under the great seal passed on this entail, of this date, and the infeftment taken thereupon was recorded in the proper register.
Apr. 29, 1682.
The prohibitory, irritant and resolutive clauses of the entail, which were directed against selling, alienating, wadsetting, and the contraction of debts, were repeated in the charter and infeftment, and also in all the subsequent investitures of the estate.
In 1685, four years after executing this entail, the act regarding the registration of entails was passed; and it was alleged by the appellant, that it was understood, at the time the act was passed, that it was only applicable to entails executed subsequent to its date.
In 1690, an act was passed “for the security of the creditors, vassals, and heirs of entail, of persons forfeited,” by which it is provided that the heirs of entail shall not be prejudiced by the forfeitures of their predecessors, “provided the right of tailzie be registrate, and conform to the act of Parliament in the year 1685.”
In consequence of this act, some of the old entails made before the year 1685, were produced to the Lords of Session, and recorded in terms of the act 1685.
The male line of Sir William Primrose having failed by the death of Hugh Lord Viscount Primrose, in May 1741, without issue, the succession to the entailed estate opened to the next remainder man, James Earl of Roseberry, who was served, retoured, and infeft, as heir of tailzie to the Viscount, and his infeftment duly recorded.
The Viscount Primrose died much in debt, his unentailed estate and his personal property being inadequate to pay the claims of his creditors.
After the entailed estate had been possessed by the appellant and his predecessors for 22 years, the creditors of Lord Viscount Primrose raised an action against the appellant, as heir of provision in the Primrose estate, for the payment of the balance still due to them. This they did, upon the ground that the entail was invalid against creditors, in consequence of its not being recorded, contending that the act 1685 applied to entails made before, as well as subsequent to, the date thereof.
The answer made was, that the act only applied to entails made subsequent to its date. But here the entail was completed by charter and infeftment before the statute ordering the registration of entails was passed.
June 25, 1765.
July 9, 1765.
The Lords pronounced this interlocutor:
“Find, that the tailzie of the estate of Primrose, founded on by the defender, though bearing date, and completed by infeftment, prior to the act concerning tailzies in the year 1685; yet, not having been recorded in the register of tailzies, in terms of that statute, is not effectual against creditors, and therefore the Lords repel the defence founded on the said tailzie, and remit to the Lord Ordinary to proceed accordingly.”
On further petition, in which, besides arguing the point of registration, the appellant contended, that as he took the estate of Primrose in the character of heir of provision to the Viscount, and not by a universal title, he could only be liable to the creditors in valorem of that succession. The Court adhered as to the registration of the entail; and as to the second point, remitted to the Ordinary. The Lord Ordinary thereafter ordained the creditors
Dec. 11, 1765
Jan. 25, 1776.
July 18, 1766.
But on representation, in which much discussion took place as to the debts of the creditors and the Earl's liability therefor, the Court, on the report of Lord Baljarg, found, that the “Earl of Roseberry is liable for the debts of the deceased Hugh Viscount Primrose to the extent only of the value of the estate of Carrington and rents thereof. But as to the quantum of the said rents for which he is liable, remit to the Ordinary.” The Court further repelled, by the same interlocutor, several objections stated by the appellant to the accounts, particularly to the promissory note due to Baird, and an English bond due to Mrs. Erskine, on the ground of prescription.
Against these interlocutors, in so far as unfavourable to the appellant, the present appeal was brought.
Pleaded for the Appellant.—The law of Scotland, with respect to the efficacy of entails, before the act of Parliament 1685, is fixed and clear; it was settled by the judgment in the case of the creditors of the Earl of Annandale, and by an universal acquiescence therewith for upwards of 23 years. And as the entail in question was made and completed by charter and infeftment several years before 1685, it must, in common law, have been effectual, and barred the respondents, were it not for the act 1685. But as that statute bears no retrospect on the face of it, the words and the evident meaning as to registration, are clearly confined to future entails, or entails made after its date. The legislature clearly understood it so, for no anterior entails were recorded in consequence of the act. The Courts of justice likewise followed the same construction, for in every question, in regard to entails so made, the entail was sustained as effectual. Even the respondents were of the same opinion in 1741, when their debtor died, and they continued of this opinion for 22 years thereafter. A contrary construction would undo every old entail; for if registration be necessary, as the law does not enforce the recording of old entails, it would rest entirely with the heir of provision whether any of these entails should be effectual—a state of things which the law never intended.
Pleaded for the Respondents.—By the express words of the statute 1685, no tailzies are to be effectual against purchasers and creditors, but such only as have the prohibitive, irritant, and resolutive clauses inserted in the original and progressive title deeds, and where the tailzie itself is produced judicially to the Lords of Session, and by them allowed of and recorded in the register of tailzies; and, therefore, as this tailzie of the estate of Primrose was not produced judicially to the Lords of Session, nor by them allowed nor recorded in the register of tailzies; it cannot affect creditors contracting with
Counsel: For the Appellant,
C. York, Al. Wedderburn.
For the Respondents, Jas. Montgomery, Thos. Lockhart.
Note—The 2nd point was not appealed, as is supposed by Professor Bell, (Com. vol. i. p. 659, n. 1.)