(1828) 3 W&S 344
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1828.
1 st Division.
Held, (affirming the judgment of the Court of Session), 1. That the omission of the words ‘for new infeftment’ in an entail made in form of a bond and procuratory of resignation is not fatal to it, the deed being otherwise sufficiently expressed; 2. That a declaration, that in case an heir substitute succeed to another estate requiring the assumption of a name and title inconsistent with those provided by the entail, he shall execute a conveyance of the entailed property to the next heir, subject to the fetters, does not free an heir not taking under such conveyance,—the fetters being held, on a sound construction of the whole clause, to apply to the heirs universally; and, 3. That a declaration that debts and deeds shall be null and void, so far as they affect the estate, is sufficient, without declaring that they shall be null and void as against the contravener.
Sir Harry Munro, proprietor of the estate of Fowlis, executed, in 1776, a deed of entail, in form of a bond of taillie and procuratory of resignation, whereby he bound and obliged himself, and his heirs whatsoever, to “make due and lawful resignation of all and sundry my lands, &c. in the hands of my immediate lawful superiors of the same, to be made, given, granted to myself; whom failing, to the said Hugh Munro, my eldest lawful son, and the heirs of his body;” whom failing, certain substitutes; “but with and under the reservations, conditions, provisions, restrictions, limitations, clauses irritant and resolutive, powers, faculties, and declarations after-mentioned, and no otherwise;” and for that end he constituted procurators “for me, and in my name and behoof, duly and lawfully to resign and surrender,
Sir Harry died in 1791. His eldest son, Sir Hugh, served heir of taillie to him on the 13th of May of the same year,—executed the procuratory in the taillie,—and obtained a Crown charter in terms of the deed, containing the following quæquidem clause:—
Quæquidem terræ baroniæ, decimæ, aliaque suprascript. perprius hæreditarie pertinuerunt ad diet. Dominum Henricum Munro,” &c.
“per illum ejusque legitimos procuratores, ejus nomine ad hunc effectum specialiter constitut. virtute procuratoriæ resignationis antea et postea mentionat. super diem et datam præsentium, debite et legitime resignatæ fuerunt in manibus dicti Domini Capitalis Baronis pro seipso ac in nomine remanen. Baronum Nostri dict. Scaccarii, tanquam in manibus Nostri immediati legitimi superioris earund. pure et simpliciter per fustim et baculum uti moris est in favorem et pro novo infeofamento earund. dict. Domino Hugoni Munro, et hæredibus masculis ex ejus corpore, quibus deficien. aliis hæredibus talliæ et provisionis supra mentionat. secundum ordinem successionis supra specificat. faciend. et concedend.; sed cum et sub singulis conditionibus, provisionibus, restrictionibus, limitationibus, clausulis irritan. et resolutivis, potestatibus, facultatibus, et declarationibus, reservationibus, aliisque supra mentionat. et non aliter; idque virtute et secundum procuratoriam resignationis et talliæ dict. terrarum baroniæ decimarum aliorumque prædict., concess. per dict. Dominum Henricum Munro,” &c. In virtue of this Crown charter he took infeftment and entered into possession of the estate. Conceiving that he was not bound by the fetters, he raised, in 1824, an action of declarator, subsuming, “that, in consequence of the death of Sir Harry, the succession to the lands, and barony, and others, devolved on the pursuer, and belonged to him as proprietor: that he had right to the lands, barony, and others, as absolute and unlimited fiar, and was entitled to sell, dispose of, and burden them, to alter the order of succession, and exercise every other act of ownership regarding them, as fully and freely as if the deed of entail had never been made or granted;” and concluding that “it ought and should be found and declared, by decree of the Lords of our Council and Session, that the pursuer is the absolute and unlimited fiar or proprietor of the lands, barony, and others before-mentioned, and that the reservations, conditions,
Sir Hugh Munro appealed.
Appellant.—1. The deed of entail is drawn in the form of a procuratory of resignation; but from the manner in which it is expressed, there is no warrant for any new title to be granted by the superior in favour of the heirs of entail. The deed does not state what the superior is to give to the heirs. The granter, no doubt, binds himself to resign the lands, and to resign them in the hands of his lawful superiors; but he has not said what is to become of them after they are so resigned. The words, “for new infeftment,” have been left out, and this omission leaves the instrument as completely ineffective to the purpose of creating or obtaining a title by new infeftment from the superior, as if there had been no obligation to resign at all. It is no answer to say, that this may have been a clerical error; for this is a question concerning the conveyance of a land estate,—a question on a title of property—on an act of technical conveyancing; and the inquiry must be, not what Sir Harry intended to do, but what he did.
2. The prohibitory, irritant, and resolutive clauses in this deed, or the clauses intended to be of this nature, are so expressed in
_________________ Footnote _________________ * 4. Shaw and Dunlop, No. 306.
_________________ Footnote _________________
* 4. Shaw and Dunlop, No. 306.
3. The irritant clause in the entail, or what was intended to be an irritant clause, is not so expressed as to annul onerous deeds done, or debts contracted in contravention of the prohibitory clause. They are not declared null ab initio, but only against the other heir of entail, and the said lands. They should,
Respondents.—The objection to the form of the procuratory rests on a mere clerical error, and does not invalidate the deed; for, as the clause is expressed, there are words sufficient to warrant the resignation of the lands in terms of the procuratory.— ‘To give and grant infeftment of the lands,’ and “to give and grant the lands,” are, in an instrument of this kind, completely synonymous; and on accepting a resignation from his vassal, a superior would be as effectually tied down by the one set of words as by the other. Besides, the expressions which follow, although elliptical, import the granting of new infeftment in favour of the resigner and the heirs called. But the objection is inadmissible in the present action. The appellant executed this very procuratory, and holds the estate by that title. The very charter he accepts from the Crown sets forth, that the lands were ‘duly and lawfully resigned,’ &c. A declarator, therefore, was quite out of place, even if the appellant had not, by homologation, abandoned the objection.
Next, the appellant maintains, that the prohibitory, irritant, and resolutive clauses do not affect him; and that the present deed is not in itself an entail under irritant and resolutive clauses, but merely an injunction, that an entail of that kind shall be made in a certain event, which event, he says, has not yet arrived. But when the deed is carefully perused, the construction attempted to be forced on very clear words, becomes palpably untenable; for the deed of entail destines the lands to a series of heirs, with complete and effectual prohibitory, irritant, and resolutive clauses, directed in express terms against the whole heirs and substitutes called by the deed, and the appellant among the number. There is no doubt that fetters must be clearly expressed, and they have here been so. It is the appellant who would get quit of the fetters upon a bare problematical possibility, and apply rules of interpretation which have no authority in law. The respondents only demand a reading according to the ordinary rules of law and grammar. They neither rest their case on implication nor presumed intention, but on the obvious and legal meaning of the words themselves.
Then, as to the irritant clause, the objection is equally groundless. The Act 1685 does not require that the prohibited acts and deeds shall be declared null and void against the contravener himself, but that the deeds are ‘in themselves null and void.’ No doubt, the acts and deeds are, in the present case, declared
The House of Lords ordered and adjudged, “that the appeal be dismissed, and the interlocutor complained of affirmed.”
Lord Chancellor.—My Lords, There is another case which was argued some time since at your Lordships' Bar, the case of Munro against Munro. This case turns upon the construction of a Scotch deed of entail. Objections were made in point of form to the procuratory of resignation, and also to the irritant and resolutive clauses of the deed. I attended minutely to the arguments on both sides at the time they were advanced. I have since looked into the case with great care and attention, and have read the instrument over and over again, and bestowed very considerable attention upon it; and have also looked into all the authorities cited at the Bar which appear to bear upon the case; and keeping, at the same time, in mind, the principle applicable to instruments of the kind, that they are to be strictly construed—keeping that in mind, and looking at the instrument, after the best consideration I have been able to give to it, I am bound to say, that I feel no reasonable doubt with respect to the construction of it. Without, therefore, going into the arguments upon the subject, which might occupy your Lordships a considerable time, and would not be very intelligible unless the instrument were before you, I should recommend to your Lordships that the judgment of the Court below be affirmed.
Appellant's Authorities.—Henderson, June 10. 1795, (4489.); Ross, July 4. 1809, (F. C.); Robertson, Feb. 16. 1816, (F. C.); Rowand, June 30. 1824, (3. Shaw and Dunlop, 141.); 3. Ersk. Inst. 8. 29.; Edmonstone, Nov. 24. 1769, and House of Lords, April 15. 1771, (4409.); 2. Bank. Inst. 149.; Bell's Cases, 188.; Erskines, Feb. 14. 1758, (15,461.); Gordon, July 8. 1777, (15,462.); Wellwood, Feb. 23. 1791, (15,463.), and May 31. 1797, (15,466.); Marchioness Titchfield, May 22. 1798, (15,467.); and House of Lords, Jan. 20. 1800; Miller, Feb. 12. 1799, (15,471.); Brown, May 25. 1808, (19. App. Taillie); Henderson, Nov. 21. 1815, (F. C.); Syme, Feb. 27. 1799, (15,473.); and House of Lords, April 26. 1803, (No. 1. App. Tailzie); Bruce, Jan. 15. 1799, (15,539.); Dalziel, May 30. 1809, (F. C.); Mowat, Feb. 6. 1823, (2. Shaw and Dunlop, No. 170); Dick, Jan. 14. 1812, (F. C.); Adam, May 18. 1821, (1. Shaw's App. Cases, No. 8.); Hope's Minor Practics, 404. 407.; 3. Mack. 8. 3.
Respondents' Authorities.—Syme, Feb. 27. 1799, (15,473. and House of Lords, April 26. 1803, 5. App. Taillie); Steele, May 12. 1814, (F. C.); Douglas, Nov. 14. 1823, (3. Shaw and Dunlop, No. 476).
Solicitors: Moncreiff, Webster, and Thompson— Richardson and Connell,—Solicitors.