(1828) 3 W&S 352
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1828.
2 d Division.
Subject_Title to Pursue.—
Held, (affirming the judgment of the Court of Session), 1. That a party pursuing, as heir of entail in possession, a reduction of a sale of part of an entailed estate, sold under a private Act of Parliament and relative decree of the Court of Session, had no title to pursue, in consequence of having made up his titles to and possessed the entailed estate in contravention of the original entail on which he founded his action; and, 2. That the principal pursuer having concluded that the defender should deliver up the lands to the pursuer, as heir of entail in possession, the substitute heirs of entail, who insisted with him in the same summons, were also barred.
John M'Culloch (who may be called the first) of Barholm, executed certain deeds of settlement of that estate in favour of his grandson, John M'Culloch the second, whom failing, on a certain series of heirs. These deeds John M'Culloch the second (under a contract with his sister) reduced, and executed a strict deed of entail, on the 29th December 1762, which was recorded on the 13th January 1763, granting the lands of Barholm and others, in favours and for new infeftment of the same, “to be made, given, and granted in due and ample form, to me, the said John M'Culloch, in liferent, and to John M'Culloch, my eldest son, and the heirs-male of his body; whom failing, to the heirs-female of his body; whom failing, to William M'Culloch, my second lawful son, and the heirs-male of his body; whom failing, to the heirs-female of his body; whom failing, to Henry M'Culloch, my third lawful son,” and a long series of substitutes. The entail then provided, that “it shall not be lawful to nor in the power of the said John M'Culloch, my son, nor any of the heirs of taillie and provision, male or female, appointed by me, to alter, innovate, or change this present taillie and order of succession before prescribed, or to be prescribed by me, by any nomination, or other deeds, as aforesaid, nor to do any other deed that may import or infer any alteration, innovation, or change of the same, directly or indirectly.” Further, the deed, after the prohibitions against selling or contracting debt, required “that the said John M'Culloch, my eldest son, and whole heirs general or of taillie, named, or to be named by me, shall possess and enjoy the said taillied lands and estate by virtue of this present taillic or nomination
“The person or persons contravening, by failing to obey the said conditions, or acting contrary to the said prohibitions, or any of them, shall, for himself or herself only, ipso facto amit, lose, and forfeit all right, title, and interest, which he or she hath to the said lands and estate; and the same shall become void and extinct, and the said taillied lands and estate shall devolve, accresce, and belong to the next heir of entail, albeit descended of the contravener's own body, in the same way as if the contraveners were naturally dead.”
On this entail titles were completed in favour of the entailer, John M'Culloch the second, in liferent, and his son, John M'Culloch the third, in fee.
John M'Culloch the second having contracted debts both before and after the completing of this entail, he and his son adopted various methods to defeat it, but unsuccessfully. They then applied to Parliament, and obtained a private Act, for the purpose of selling part of the entailed estate for payment of the debt contracted prior to the completing of the entail; and an action of declarator, sale, and ranking, was thereupon brought in the Court of Session by John M'Culloch the second, John M'Culloch the third, and by the latter as administrator-in-law for Anne M'Culloch, his infant daughter. It is unnecessary to detail the precise steps which followed, but the result was the sale of a large proportion of the estate, of which a considerable
John M'Culloch the second having died during the dependence of the action, the residue of the estate came to John M'Culloch the third, who, as “heritable proprietor of the lands and others underwritten,” executed, on the 18th January 1791, a procuratory of resignation for new infeftment in the remainder of the estate, “to be made, given, and granted, in due and ample form, to me the said John M'Culloch in liferent, and to John M'Culloch, my eldest lawful son, and the heirs-male of his body; whom failing, to the heirs-female of his body; whom failing, to James Murray M'Culloch, my second lawful son, and the heirs-male of his body; whom failing, to the heirs-female of his body; whom failing, to William M'Culloch, my third lawful son, and the heirs-male of his body; whom failing, to the heirs-female of his body,”—and so forth, to his other sons and daughters; and he then called the substitutes in the entail of 1762. A Crown-charter followed on the 13th December, by which the lands were conveyed “semper cum et sub diversis oneribus, conditionibus, provisionibus, restrictionibus, limitationibus, clausulis irritan. et resolutivis, reservationibus aliisque content, in literis dispositionibus talliæ, lie deed of entail, de data 29no. die mensis Decembris Anno Domini 1762, et registrat. in Archivo Talliarum de data 13.die mensis, postea script, quarum omnes in resignationis instrumento cartis et sasinæ instrumentis super presentibus sequend. et in omnibus subsequend. servitiis retornatibus procuratoriis, et resignationis instrumentis, cartis, præceptis, verbatim inserendæ sunt, viz.” &c. After which followed verbatim the conditions in the original entail. On this deed infeftment was taken on the 13th of August 1792. At this time John M'Culloch the fourth (the appellant) was a minor, and alleged that he knew nothing about, and had not been consulted as to theso proceedings. On his father's death he entered into possession under the entail of 1791.
In 1823 the appellant, John M'Culloch the fourth, his three daughters, (his only issue), his sister and brother, brought an action against Sir Alexander Muir M'Kenzie, who had succeeded to his father, for the purpose of reducing the above sale in 1777 and 1783, and recovering the lands. The summons called for production of the whole procedure in the declarator, sale, and ranking, with the titles made up to those
A similar action was raised against other parties who had acquired right to other portions of the estate in the like manner.
Sir Alexander Muir M'Kenzie gave in preliminary defences, which were overruled, under reservation of all objections to the pursuers' title, in so far as they might be blended with, or might arise out of the discussion of the merits of the cause:
* And certain procedure took place, which it was alleged, deprived
_________________ Footnote _________________ * The Lord Ordinary found Sir Alexander liable in the previous expenses, (except of the summons); but the Court altered, and reserved entire all question of expenses hinc inde till the final issue of the cause. This point was also appealed.
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* The Lord Ordinary found Sir Alexander liable in the previous expenses, (except of the summons); but the Court altered, and reserved entire all question of expenses hinc inde till the final issue of the cause. This point was also appealed.
The pursuers appealed.
Appellants.—1. The defence which the Court sustained was raised too late. A defender cannot offer first one and then another dilatory defence, but must make them all at once. But the respondent's dilatory defences had all been already disposed of, and of these the present did not form a part.
2. But the defence has no solid foundation. The appellant, John M'Culloch the fourth, has two distinct and independent titles to pursue:—1. The entail of 1762: Under it an effectual and indefeasible right, a jus crediti, vested in him ipso jure the moment he was born. On this entail the appellant founded: to it he referred for his character of heir of entail; and on it he claimed the right he is vindicating. The summons merely mentioned the charter 1791 and sasine 1792, in order to shew that the appellant is heir of entail at present in possession.
† 2. Under the
_________________ Footnote _________________ * See 4. Shaw and Dunlop, No. 377. p. 598. † In support of this plea, the appellant referred to the instance of the summons, (ante, p. 355.), and to the fourth reason of reduction. “Quarto, The foresaid deed of taillie, granted by the said deceased John M'Culloch, elder, on the 29th day of
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* See 4. Shaw and Dunlop, No. 377. p. 598.
† In support of this plea, the appellant referred to the instance of the summons, (ante, p. 355.), and to the fourth reason of reduction. “Quarto, The foresaid deed of taillie, granted by the said deceased John M'Culloch, elder, on the 29th day of
3. But even if the title under the entail 1792 had been different from the title under the entail 1762, that is jus tertii to the respondent. No doubt each substitute heir of entail may protect his right from infringement by the act of the heir in possession; but the substitute heirs need not make the challenge unless they please, and if they do not, no other person can. The cases of Little Gilmour, and Gordon, were marked by the specialty (which does not occur here) that the contravener forfeited for his descendants; and, in pronouncing these judgments, the Court overlooked the judgment in the House of Lords in the case of the Duke of Roxburghe. Even, however, if there had been a contravention pleadable by others than the heirs of entail, it can have no effect until declared by decree of the Court to have been incurred. But there was no contravention. The destination in the title of 1792 corresponded with the destination in the entail 1762. If an heir-male of the body be called, no person can take who is not an heir, a male, and of the body. But the appellant's brother, alleged by the respondent to be preferred by the deed of entail 1762 to the appellant's daughters, although a male, and of the body, is not the heir. The instant the appellant dies, then the heirs-male of the body of John M'Culloch the third are extinct, and the appellant's daughters come in, both as heirs-female of John the third, and of the appellant, John the fourth. The whole tenor of the deed of 1762 demonstrates that this construction is correct. The entailer never could intend to put the institute in a more unfavourable situation than the substitute. At all events, even if there has been a contravention on the part of the appellant, John M'Culloch, there has been none on the part of the other appellants, the next heirs substitute, and therefore they have sufficient title to insist in the action. The title vests in them at their birth, and it is of no consequence whether they be near or remote. It is a mistake to suppose that the other appellants insist for John M'Culloch's
_________________ Footnote _________________ December 1762 years, was a valid, complete, and effectual, and also an onerous deed, &c.; and also entitles the pursuers, and all other substitute heirs under it, to insist for reduction of every thing done, act committed, or deed granted, inconsistent, or in any degree at variance, with the said deed of taillie, or in contravention or violation thereof; and in particular, the whole foresaid process, sales, and other proceedings, and the subsequent conveyances and transmission of the parts of the estate of Barholm, sold as aforesaid.”
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December 1762 years, was a valid, complete, and effectual, and also an onerous deed, &c.; and also entitles the pursuers, and all other substitute heirs under it, to insist for reduction of every thing done, act committed, or deed granted, inconsistent, or in any degree at variance, with the said deed of taillie, or in contravention or violation thereof; and in particular, the whole foresaid process, sales, and other proceedings, and the subsequent conveyances and transmission of the parts of the estate of Barholm, sold as aforesaid.”
Respondent.—1. There is no foundation for the allegation, that the plea maintained by the respondent is too late. All objections to the title were reserved, and the present one was therefore stated in time. It is indeed not properly a dilatory defence, because it goes directly to the merits; for if the appellant has no title to found on the entail of 1762, then the respondent's right cannot be challenged.
2. The entail of 1762 called the heirs-male of John the third, the institute, in preference to the heirs-female. But the appellant's brothers are the heirs-male of John the third, and must come in before the appellant's daughters. The entail, therefore, of 1792 is a direct contravention of the entail 1762. This contravention is admitted in the very summons raised to protect the provision of the entail 1762, thus confessing the vice in the appellant's title. It is true, that a party having two titles in his person, may possess on both, but only where they are not inconsistent with one another. But here it is declared, that the heir shall possess upon a particular title, and no other; and if, nevertheless, the heir makes up a different title, he cannot ascribe his possession to the entail excluding the other title. Now, the appellants found, as their title, on the entail of 1792, on which they have been infeft, and which is in direct contravention of that of 1762. It is absurd to pretend, that a person cannot hold the character of heir-male without being also heir of line; and therefore, the attempt to shew that there is truly no inconsistency between the titles necessarily fails. But if the deed of 1792 is inconsistent with, and in contravention of the entail of 1762, then the appellant, John M'Culloch, is a contravener, has forfeited his right under the entail, and holds at variance with it all that remains of the estate. He has therefore disclaimed that entail as the estate of his possession. But if so, how can he found on that entail for the purpose of affecting the rights of parties dealing with a former heir? His summons is grounded on the alleged contravention, by his father and grandfather, of the provisions of the entail 1762. But all the appellant's right under that entail is not only forfeited, but abandoned. The cases of Little Gilmour, and Gordon, rule this case. The previous case of Roxburghe proceeded on the supposed impossibility of enforcing a resolutive clause after the death of the contravener. But the appellant is himself the contravener.
3. The plea of jus tertii does not apply. The respondent is not attempting to lead evidence of contravention to destroy the appellant's title to the estate, but is defending himself from a challenge on an entail which the appellant has disclaimed. If the appellant will enforce fetters, the question necessarily arises, Whether he has a title to found on these fetters or not? The concurrence of the other substitutes does not correct the evil. The contravention by John M'Culloch the fourth is confessed on the face of the summons, and he concludes, that the lands sought to be recovered may be restored to him, i.e. to the contravener. The only true result of the concurrence therefore is, that these substitutes having adopted his disclamation of the entail 1762, do not invalidate his title, but destroy their own. It is not necessary to have the irritancy declared by a decree of the Court, for the irritancy is set forth in the summons itself. The appellant may, or may not, be able to purge the irritancy; that, however, is not hujus loci. But independent of these considerations, the appellant, by accepting from his father a procuratory of. resignation inconsistent with the entail .1762, and possessing on titles made up on that procuratory, has rendered himself liable for all the debts and obligations of his father, and is thus barred from reducing a sale, which, as his father's representative, he is bound to warrant. If the sales were brought about by the fraudulent contrivance of John the third, he could not have reduced them; and neither can his representative the appellant.
The House of Lords ordered and adjudged, “that the appeal be dismissed, and the interlocutors complained of be affirmed.”
In the year 1791 or 1792, John M'Culloch, who is described in these proceedings as John M'Culloch the third, made a new settlement of the greater part of this property. The reason why the settlement did not extend to the whole of the property was, that a part of it had been alienated, to which I shall by and bye refer. In that settlement, John M'Culloch the third settled the property upon himself in liferent, then upon his eldest son, and the heirs-male of his body; whom failing, upon the heirs-female of his body; whom failing, upon his second son, and the heirs-male of his body; whom failing, upon the heirs-female of his body, and so on. My Lords, it is quite obvious, in the first instance, on looking at that settlement, which was made by virtue of a charter of resignation and infeftment thereon, that the provisions of that settlement were completely inconsistent and at variance with the instrument of 1762. By the settlement of the year 1762, the brothers of the present appellant, who was the son of the third John M'Culloch, were to take before any female descendant of the present appellant was to take; whereas by the settlement of the year 1792 it was provided, that the line of female heirs should come in earlier. It is quite plain, therefore, that the terras of the provisions of the settlement of 1792, were directly inconsistent with, and at variance with the terms of the settlement of 1762; and by the terms of the settlement in 1762, any party taking under that settlement, would, by contravening the provisions of that settlement, incur a forfeiture.
In the interval between 1762 and 1792, John M'Culloch the second, and John M'Culloch the third, conferred together for the purpose of disposing of a part of the property : that property was disposed of under the authority of a private Act of Parliament, and under the authority of one of the Courts in Scotland. It is submitted by the present appellant, that that disposition of the property was irregular and improper—irregular in point of form—and improper, in as much as there was fraud, as far as related to the vender, mixed up with it. The property was sold to Mr Muir, the father of the present respondent; but with respect to the merits of that sale and disposition of the property, we have at present no concern. For the question now before your Lordships for your decision, is not as to the merits of that disposition of the property, which will have to be considered, or may be considered in some future proceeding; but the question is, whether, on a title so acquired, the pursuer, who is the present appellant, has a right to proceed in this action ?
My Lords,—If we look at the summons and to the nature of the case, the point is substantially this : The party who is the pursuer in the action, is complaining that his father, holding under the deed of taillie of
The answer to this objection, which has been in the first instance stated by the present appellant, is, that the objection came too late; that it was a mere dilatory defence; and being a mere dilatory defence, the party attempting to avail himself of that defence, was out of time. But, my Lords, when we come to look at the nature of the defence, it is not a mere dilatory defence, but, as one of the Judges in the Court below stated, it goes to the merits, as far as relates to the present claim; for the effect and object of it is, the destroying the title under which the appellant comes into Court, to endeavour to recover possession of this property from the respondent. I think it is sufficient to refer to that observation to satisfy your Lordships, that it is not a mere dilatory defence, so as to deprive the defender of the right to avail himself of it.
Another observation was, that there was in fact no difference between the destination of the estate under the settlement of 1762, and the destination of the estate under the settlement 1792. I have already stated to your Lordships what I conceive to be the esential difference between these two settlements,—that the brother is postponed for the purpose of interposing another line of heirs, who would take the estate he would have enjoyed under the settlement of 1762. We heard in the course of the argument a great variety of cases cited; a few from the law of Scotland, but many more from the law of England, said to be well suited to the purpose of shewing that there was in fact no difference between these destinations. I attended to these cases at the time; I have referred to them since; and I think I may say, without speaking disrespectfully of the gentlemen who cited them, that they appear to me to have no bearing upon the present case; and the reference to them has arisen from a misapprehension of the question. I am quite satisfied that the settlement of 1792 is inconsistent with, and directly at variance with the settlement of 1762; and that, my Lords, brings us to the principal question that was intended to be agitated, and the principal question which, in point of fact, was agitated at the Bar in the course of the argument of this case; namely, whether the respondent has a right to avail himself of this defence ? The argument at the Bar was this, and it is the argument in the papers
My Lords,—There were two cases stated at the Bar, one the case of Little Gilmour, and another the case of Gordon of Carleton; one of which was, I think, as far back as the year 1749, and the other in the year 1801; both of which in point of principle, when they come to be
But, my Lords, it is said, though Mr M'Culloch himself may have no right to pursue, the other persons who are co-plaintiffs with him have that right, they being substitutes in the entail. But if your Lordships look at the summons, to which they are parties, it appears that they in fact adopt, as far as this cause is concerned, that which is done by Mr M'Culloch. They adopt his disclaimer of the original settlement of the year 1762, and join in that prayer in the summons to which I have directed your Lordships' attention, and (which is material to be considered) that the property may be delivered up to the pursuer as heir of entail in possession under the deed of 1792; and therefore, I apprehend, the Court were perfectly correct in considering that the situation in which these other pursuers stood, did not differ from the situation in which Mr John M'Culloch himself stood. It is on these grounds that I would humbly submit to your Lordships the propriety of affirming the judgment of the Court below. It is proper that I should state to your Lordships, that it was the unanimous judgment of the Court, after much argument and deliberation. It was stated at the Bar, as I observe it was also in the speeches of one of the learned Judges, that a similar case was at the time depending in the other Division of the Court of Session. That, I am informed, has been since decided conformably to the decision of this case. * I think, therefore, that your Lordships will have no difficulty in affirming this decision.
Appellants' Authorities.—4. Ersk. 1. 67.; Simpson, Jan. 6. 1697, (15,353.); Irvine, Jan. 1723, (15,369.); Dundas, Nov. 29. 1774, (15,430.); 3. Ersk. 8. 32.; Lord Ballenden, Jan. 12. 1698, (7811.); Lord Ballenden, Feb. 3. 1702, (7816.); Duke of Roxburghe, March 5. 1734, (Craigie and Stewart's Ap. Cases, No. 27. p. 126.); Campbell, Feb. 5. 1760, (7783.); Creditors of Cromarty, Feb. 25. 1762, (15,417.) Turner, Nov. 17. 1807, (App. voce Taillie, No. 16.); 2. Ersk. 5. 25.; Hamilton, July 23. 1748, (7281.); Ross, Nov. 18. 1766, (7289.); Bargany, March 27. 1739, (Craigie and Stewart's Ap. Cases, vol. i p. 237., and English Authorities quoted in the papers of that case).
Respondent's Authorities.—Little Gilmour, March 6. 1801, (App. voce Taillie, No. 9.); Gordon of Carleton, Nov. 14. 1749, (15,384.); Cromarty, Feb. 25. 1762, (15,417.).
Solicitors: Fraser— Richardson and Connell,—Solicitors.
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* His Lordship was understood to refer to the case of Dickson v. Cunninghame, in which all the Judges were consulted, and whose opinions were laid before his Lordship; but the case was not at this time decided, judgment having been delayed till the result of the case of M'Culloch should be learned.—See 7. Shaw and Dunlop, No. 257. p. 503; 3d March 1829.