(1844) 3 Bell 128
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1844.
Subject_Superior and Vassal. — Non-Entry. — Tailzie — Found
that a superior having granted a charter under the procuratory in a strict entail, and received a year's rent on the entry of the first party taking under the investiture, is not entitled to a similar payment on the entry of subsequent heirs of entail, not heirs of line of the party last entered, on the ground that they are singular successors; but that he can claim only the relief duty payable on the entry of an heir, and this notwithstanding the superior, at granting the first charter under the entail, may have inserted in it a clause declaring that the granting of the charter should not exclude his claim to a year's rent, whenever the heir asking an entry should not be the heir of line of the person last entered.
On the 20th day of July, 1802, Grizel Ewart executed a disposition and deed of entail of her lands of Allershaw, whereby she granted procuratory of resignation for resigning the lands in favour of herself in life-rent, and William Cosser, her second cousin, and the heirs male lawfully to be procreated of his body in fee whom failing, to David Robertson Williamson Ewart, and the heirs male lawfully to be procreated of his body, whom failing, to Robert Ewart, grandson of Dr. Robert Ewart, and the heirs male lawfully to be procreated of his body, whom failing, to any person or persons to be named and appointed, in any nomination or other writing, to be granted by the said Grizel Ewart, at any time of her life.
In 1811 Grizel Ewart died; William Cosser then took up the succession under the deed, and on the 24th Nov., 1813, William Stirling, the superior of the lands, gave him a charter
Cosser, who was not the heir at law of the entailer, obtained this charter as a singular successor, and paid the superior at his entry a full year's rent of the lands.
Cosser died without heirs male, and without having executed the procuratory or precept in his charter, and he was succeeded by David Robertson Williamson Ewart, now become Lord Balgray, who was served heir of tailzie and provision, and in October, 1818, took infeftment under the precept in Cosser's charter.
Lord Balgray died in 1837, without heirs male of his body, and the succession then opened to the respondent, who, in August, 1837, expede a general service as heir of tailzie and provision to Lord Balgray.
In 1837 the appellants required the respondent to enter with them as superiors, and to pay the usual composition on the entry of a singular successor. The respondent refused to pay more than double the yearly feu duty, and thereupon the appellants brought against him a declarator of non-entry.
The appellants pleaded, in support of their action, that they were not bound to give the respondent an entry as vassal, except on condition of his paying a year's rent of the lands, and having refused to pay it, they were entitled to a decree of non-entry against him.
The respondent pleaded that, as he had succeeded as heir of the existing investiture, he was entitled to an entry as such.
The Lord Ordinary ordered cases, and upon advising these papers, made avizandum with the cause to the Court, accompanying his interlocutor with the following note:—
“ Note.—The Lord Ordinary reports this case as involving a question long agitated between superiors and heirs of entail, and which is now prepared for the consideration of the Court, on papers of great research and ingenuity.
The pursuers are undoubtedly superiors of the estate of Allersliaw. This estate belonged in property to Miss Ewart, who, in 1802, executed an entail, whereby she destined it under strict fetters, first,to William Cossar and the heirs-male of his body, whom failing, to the late Lord Balgray and the heirs of his body; whom failing, to the defender, Robert Ewart and his heirs-male.
Miss Ewart died in 1811, and was first succeeded by Mr. Cossar, who got a charter in 1813, from the superior; but as he was neither heir-male nor heir-of-law of Miss Ewart, Cossar paid a full year's rent for his entry. The charter was qualified with the reservation, inserted, it is believed, for upwards of half a century in the greater part of tailzied fees, that the superior, by the grant then made, should not be excluded from any claim “which we or our foresaids may have at law, to a full year's rent of the lands herein contained, whenever the heirs of entail to whom the succession shall open, shall happen not to be heirs-of-line of the person last entered and infeft by us and our foresaids.”
Mr. Cossar did not take infeftment on his charter, and having died in 1817, Lord Balgray was infeft on the precept still unexhausted in the first charter. On Lord Balgray's death without issue in 1837, the succession under the tailzie opened to the present defender. It is admitted that the defender is not an heir-of-line, nor in any way lawfully connected,
either with Lord Balgray, or even with the entailer Miss Ewart.
In these circumstances, the tailzied fee having become vacant, and the succession having opened to a stranger heir and disponee, the question arises, whether the superiors are entitled to demand a casualty of a full year's rent from the defender? It is not a little remarkable that the present should be the first instance in which this question has been presented, free from any specialty, for the consideration of the Court, since the well-known case of Lockhart and Denham in 1760. Now that it has occurred, it is entitled, from its importance in practice, to the most deliberate consideration.
On a deliberate consideration of the whole case, the Lord Ordinary must own that he finds it difficult to resist the argument of the defender, and the various authorities by which it is supported. That indeed appears to be founded chiefly on the view of the same question taken by Lord Corehouse, in a very learned note attached to his interlocutor in the case of the Duke of Hamilton against Baillie, reported in 1827 (6 Shaw, p. 94). Though a specialty occurred in that case, sufficient for the disposal of the superior's claim, his Lordship delivered his opinion on the abstract question as to the superior's claim in general, under a tailzied investiture, in terms which shewed that he had very anxiously considered the point. The views briefly indicated in that valuable note, are elaborately enforced in the revised case for the defenders, the fulness and length of which are amply atoned for by the able and satisfactory exposition of the argument and authorities that it contains. The Lord Ordinary shall now explain, as shortly as the nature of the question admits of, the grounds on which he has come to the conclusion, that the defender's plea is well founded in law.
It does not seem necessary in the present inquiry to enter into any disquisition on the original or early history of feus. Although the general tradition is probably correct, that fiefs
were originally granted by military adventurers to their followers, at first for life only, and afterwards to their heirs-male, it is notorious that, with us, feus have for many centuries been descendible to heirs whatsoever. Reg. Majest. B. ii. sec. 25, &c., &c.
When rights of property became thus fixed and inheritable, the superior was of course obliged to enter the heir of the investiture on payment of the ordinary relief duty. Hope, in his Minor Practicks (tit. 4, sec. 21), describes the course which was competent to the heirs of vassals to compel subject-superiors to give this entry. A retour was expede, after which a precept issued from Chancery to compel the superior to enter the heir, and if he refused, the vassal was entitled to apply to the Crown for an entry.
While these provisions, however, were early fallen upon for securing the descent of feus to the heirs of the vassal, the superiors had influence to preserve in force restraints on the alienation and transmission of land altogether prejudicial to the improvement and prosperity of the country. Although these limitations evidently arose from the original destination and purpose of feus, the reason for them ceased when these became hereditary in the families of vassals; but as their maintenance increased the casualties exigible by superiors, it is not extraordinary that they were continued in the earlier periods of our legislation, when the interests of commerce were of little importance and ill understood. But at length, in 1469, the Statute was passed allowing land to be comprised by creditors for debt, and obliging superiors to give an entry to the apprisers for payment of a year's rent. This (as explained in the Minor Practicks, tit. v., sec. 16), indirectly enabled purchasers to change the old investiture and to complete their title, because they always had it in their power to comprise the lands for the price, and so to bring their case under the Statute. It is true that superiors had an option, by the
Act 1469, to take back the feu on paying the whole debts of the vassal; but when the debts were large, or where the price was adequate, a superior had no object, and often was not able to exercise the option. In practice it does not appear ever to have formed any serious obstacle in the attachment and transmission of land, when apprisers were willing to account fairly to the superiors for the year's rent.
When creditors or purchasers raised and obtained a comprising under this Statute, it is supposed that they could competently assign it to such persons, or their heirs and assignees, as they chose. No authority is to be found for holding that a new vassal appriser could not make the new investiture in favour of such persons as he chose. More especially, there appears to be no example of the superior being entitled to name the heir of an appriser, and no principle of law was in force in the fifteenth century, or after it, establishing that apprisers could be limited in the selection of their heirs, or forced to take a charter to heirs whatsoever instead of heirs male, or to the latter instead of heirs of provision voluntarily selected by him. The contrary is strongly indicated by Stair, 13. 2, t. 3, sec. 43.
It is true that the remedies and rights of creditors and purchasers apprising, do not apply to the case of stranger heirs claiming under mortis causa settlements and tailzies of a deceased fiar. But it is probable that such settlements, without some arrangement and agreement with superiors, were not of very frequent occurrence for many years after 1469. It was only in 1540 that the practice of authenticating deeds by seal, without the subscription of the party, was abolished, which shews that skill in writing was not before very generally diffused; and though it certainly appears from Balfour's Practicks (finished about 1580), that tailzies or destinations of a certain description were known in his time, the inference deducible from what he says is, that superiors, in general and
in practice, accepted of new heirs without any hard exaction; probably from the consideration that the casualties payable by a new set of heirs would be as lucrative to the superior as the casualties from the old series.
But, as the country advanced, the Supreme Court assumed such powers as were necessary to give effect, as far as possible, to all rights of property. Hence the process of adjudication before this Court seems to have been introduced at an early period, by usage alone, without the authority of any Statute. Accordingly, the Statute 1621, cap. 7, refers to adjudications against heirs lying out for debt, as a proceeding then in common use in the Supreme Court; and it gives all co-creditors of the proprietor, as well as to the first adjudger, a right to redeem or require possesssion in the order of their adjudications. At the same time this process before the Supreme Court was not limited, even at an early period, to adjudications for debt, but came to be sanctioned for the enforcement of irredeemable conveyances. The earliest example of such an adjudication seems to be the case of Johnston v. Carmichael, in 1611, mentioned by Lord Stair, in treating of dispositions (B. III., t. 2, sec. 53), and various other cases occurred soon after, as appears from the Dictionary (p. 54, voce Adjudications), in which the Court gave decrees of adjudication in favour of parties holding absolute and irredeemable conveyances to lands. Accordingly, at the time that Sir George M'Kenzie wrote his Institutions, he mentions adjudications as in general use before the Supreme Court, and especially refers to adjudication in implement for making dispositions effectual; and adds, that “the Lords will adjudge the lands disponed to belong to the pursuer a remedium extraordinarium, there being no other remedy competent. This adjudication extends no farther than to the thing disponed, and hath no reversion.”— Institutions, B. II., t.1, 2.
In that way, stranger disponees and heirs of provision had
a compulsitor for obtaining infeftment from superiors, without being liable even for a year's rent, by giving them a charge to enter disponees on decrees of adjudication taken before this Court, and as the Act 1469 applied only to parties following the ancient course of apprising before the Sheriff, and not to adjudgers before this Court, the superiors for a long time had no authority for exacting a year's rent. This, however, was remedied by the Act 1669, c. 18, which declared, that superiors should be entitled to a year's rent for entry of all adjudgers, as well as apprisers; and from that period adjudgers, both for debt and in implement, before the Court of Session, as well as creditors and purchasers apprising under the old form, were held liable for a year's rent and no more. This is clearly stated by Lord Stair as the rule, when his Institutions were first published in 1681. As he says (B. II., tit. 4, sec. 32),— “The Statute (1469) was by custom extended to adjudications, being the same in effect, but different in form from apprisings; for the design of the Statute being to satisfy creditors by judicial alienation of the debtor's lands ex paritate rationis, it was extended against the debtor's appearand heir, who being charged to enter heir, did not enter; and therefore lands were adjudged from him, to which he might have entered, either for his predecessor's debt or his own; whereupon the superior is decerned to receive the creditors adjudgers, whether for sums of money, or for implement of dispositions and obligements to infeft”. But the custom allowed “not a year's rent to superiors for receiving adjudgers, 21st July, 1636, Grier., till the year's rent was also extended to adjudications by Act of Parliament, Dec. 3, 1669.”—See first edition of Stair, vol. 1, p. 305.
Thus, in practice, all vassals were enabled, long before 1685, to change the old investiture of their estates, and to establish a new investiture under the superior, by paying him a year's rent. That high composition was the utmost extent
of the superior's claim for changing the investiture, and there is no indication in any of our authorities, that superiors, after the rights of property and inheritance were well understood, had any control over vassals in the destinations they made, or in the number of substitutions under which they chose to settle their fees. The limitation necessarily imposed on vassals consisted in this, that substitutions (which truly are special assignations), fell all to be fixed before infeftment.—See Stair, B. II., t. 3, sec. 5.
Indeed, the ancient custom and the right of vassals to alter subsisting destinations and tailzies, and to make new ones, is mentioned very clearly by Balfour in a chapter before referred to (pp. 173, 174). It is well known, also, that the same doctrine has been confirmed by more recent cases of unquestionable authority, as in those of Captain Johnstone against the Marquis of Annandale, in 1759 ( Dict. p. 4356); and in that of the Magistrates of Aberdeen against Burnett in 1808 (App. voce Superior and Vassal, No. 5), both referred to in the papers in the present case. And therefore, when a fee was once settled, and an entry given for the usual composition under a new investiture; the substitutes became heirs of provision, and in fact members of the investiture, and the superior could demand no more for the entry of any succeeding substitute than the ordinary relief duty exigible from heirs of investiture.
These views are not inconsistent with the doctrine of Craig and others, that tailzies could only be made with consent of the superior. In one sense this was correct. Heirs of tailzie not alioqui successuri, certainly could not demand an entry as ordinary heirs, without the consent of the superior. But some time elapsed in the early history of the law, before the operation and effect of the process of adjudication, whereby heirs of provision and disponees could compel an entry from the superior, under a new institution, on an absolute and irredeemable disposition,
were well ascertained. Craig (whose treatise was published in 1602), expressly states that that process was unknown to his predecessors, and Lord Stair observes (B. III. t. 2, sec. 45), that “adjudications being but recent in his (Craig's) time, and few decisions thereupon, the nature and effect of it was but little known, but is now in course of time farther illustrated.” When it was afterwards found, therefore, that adjudgers had it in their power to obtain an entry by payment of a year's rent, it is not strictly correct to say that a tailzie could not, at least, by due process of law, be made effectual without the consent of the superior. Indeed, the competency of an adjudication by heirs of tailzie, is distinctly explained by Lord Stair (B. II., t. 3, sec. 43.)
The Act 1685, giving validity to entails, certainly did not extend the rights of superiors. The object of it was to secure and render permanent the tailzied destinations in previous use, by giving effect to prohibitory, irritant, and resolutive clauses, but while it declared that superiors should not be prejudged of their casualties, it did not enact that any new casualties should be leviable from heirs of tailzie, which could not have been demanded from heirs of investiture, according to the former practice.
It would appear, however, that superiors and their agents, very soon after 1685, took up the notion that they might set up a claim for a composition from every substitute of tailzie who was not heir-at-law of the preceding possessor of the estate. Accordingly, a clause to that effect was inserted in a charter granted soon after 1711, by Mr. Lockhart of Carnwath to Sir Archibald Denham of Westshiell (the first substitute under the tailzie), though on every occasion the superior got a composition from the vassal as a singular successor. That charter was reduced on a ground immaterial in the present question; but the next substitute, Sir Robert Denham, got a new charter in the same terms, the superior being allowed to retain
the old composition. Then, when a third renewal of the investiture was required in 1760, in favour of the substitute who then succeeded, he not being the heir alioqui successurus, the superior demanded a second composition, which the Court repelled, “in respect the pursuer had acknowledged the entail by granting charter and infeftment thereon to the late Sir Robert Denham.”
It rather appears to the Lord Ordinary, that the real meaning of .the Court in the preceding decision has been sometimes misunderstood, perhaps because the ratio set forth in the interlocutor is not expressed with due accuracy and precision. It is not easy to understand how a superior could be said to have acknowledged an entail, merely by granting a charter containing the very express reservation, which appears on the face of both the charters in the Westshiel's case; but when it is attended to that the superior had, prior to granting the first charter, received the composition of a singular successor, for the entry and acknowledgment of the first heir under the tailzie, he was thus properly barred from claiming a new composition from a succeeding heir of the investiture, which he had already acknowledged for the highest legal consideration that the law gave him a right to exact. In other words, he had acknowledged the entail for an onerous consideration; and no reservation could give him any farther claim; as it was on its face a reservation of a demand plainly illegal and unjust, and not effectual against heirs of entail, as they did not represent the party who had acquiesced in its insertion in the primary charter. In that view, the case of Denham is an authority decisively in favour of the defender in the present case.
It is obvious also, that the late cases are not opposed to the preceding decision. In the case of M'Kenzie, in 1777, the heir of entail who demanded an entry, being the heir alioqui successurus of the party deceased, refused to pay the composition of a singular successor; and the Court held that
he was entitled to an entry for the ordinary relief duty of an heir, “reserving to the superior and his successors in the superiority, any right which they may have to a year's rent on the entry of any future heir of tailzie not an heir of investiture prior to the tailzie.” It is almost implied in this reservation, that the payment of a composition by any substitute of entail as a singular successor, would exhaust the claim of the superior, as the tailzied destination would then be acknowledged by him for the legal consideration exigible on a change of investiture. Accordingly, in the deliberations on the Bench, in M'Kenzie's case, Lord Braxfield made this important observation, that “the granting of the first charter is an enfranchisement of all the subsequent disponees.”
The case of the Duke of Argyll v. Lord Dunmore, in 1798 ( Dict. p. 15,068), was certainly different from the preceding; for there the institute of tailzie who demanded an entry was confessedly a singular successor; and having offered the year's rent, he was entitled, according to the view of the law now taken, to insist on an unqualified entry of the whole tailzied destination; but as Lord Dunmore, who then demanded an entry, had a family of his own to succeed him, he was probably advised that the superior's contingent claim might never arise, and therefore he declined to try the question, farther than to insist on the superior's future claim being reserved in case it should ever emerge; and the Court found that the superior was not entitled to demand more at that time, in consequence of which the determination of the question which here occurs, was of course superseded.
The late case of the Duke of Hamilton against Lord Hopetoun (8th March, 1839), is also referred to in the present question; and certainly there are some expressions, in the opinion of the consulted Judges in that Report, which at first sight might afford an inference in favour of the superiors' argument here; but truly the plea now raised was altogether unnecessary
in that instance. The superior had granted a charter in the ordinary terms to a purchaser, and his heirs and assignees. No special substitution was set forth in the charter; but the vassal having got the charter in the preceding general terms, assigned it in his son's contract of marriage to his heirs male and other heirs of tailzie, excluding heirs of line. As the superior was not a party to the assignation, it was contended that he had given no consent to the new investiture, and was not bound to give a new investiture under it, without a new composition. But it was held sufficient for the determination of the case, to state that, in any view of a superior's right, a purchaser was entitled to substitute all his own heirs in any order he chose, without the superior's consent. The question, whether he could not have insisted on a new investiture being granted to any series of heirs of provision he chose to substitute, at the very time the charter was taken out, was of course not decided by the Court, but was reserved for consideration when the case should occur.
Now, however, that the question arises under circumstances which render its decision unavoidable, the Lord Ordinary, on the grounds already detailed (perhaps at too much length), is humbly of opinion, that the superior having already received a composition for the entry of the first disponee under the present tailzie, and having thereby acknowledged the entail for an onerous cause, is bound to enter the defender as an heir of the subsisting investiture, for the ordinary relief exigible from an heir.
The Lord Ordinary has the less hesitation in coming to this conclusion, when it coincides so entirely with the opinion expressed by Lord Corehouse in the case of Baillie in 1827, before referred to. His Lordship remarked, most properly in that case, that if superiors were entitled to a casualty in every transmission of a tailzied fee to a stranger substitute, “it would make a tailzie greatly more preferable to a superior, than a fee
simple.” It may be added, that when a proprietor, by following out implicitly the directions of the Act 1685, may make the tailzied fee perpetual in his own family, or to his own kindred, by a destination to the vassal, and his heirs whatsoever, always secluding heirs portioners, it is very difficult to see how the condition of the superior can be made worse by any special substitution of stranger heirs, any more than it would have been by the perpetual inheritance of the heirs-at-law.
It deserves notice also, that the Act of Geo. II. enabled vassals to change their old investitures, by executing procuratories of resignation in favour of such disponees as they thought proper, on which they were entitled to give a charge to the superior to enter them on payment of the customary casualties exigible from the heir or purchaser. If the charge was in favour of a singular successor, and a specified series of substitutes in fee simple, it never was supposed that the superior could object or claim a new composition from any of the substitutes allowed to succeed under a simple destination unfenced with irritant and resolutive clauses. There appears to be no pretence for such a claim under the ancient law of Scotland. Is the claim, then, the more maintainable that the institute under a tailzied investiture, purchased from the superior, has succeeded by the protection of irritant and resolutive clauses? There appears to be no room for any distinction.
This certainly raises the question suggested towards the close of Lord Corehouse's note in Baillie's case, whether the superior is not entitled to “an equivalent for admitting a condition into the charter which destroys the chances of singular succession in future;” while his Lordship most naturally adds, “that it is very difficult to put a value on that chance.” It humbly appears to the Lord Ordinary, that any claim of the superior on this ground is altogether inadmissible and contrary to principle. It is established by the writings of all the
great lawyers of the seventeenth century (including Hope, M'Kenzie, and Stair), that tailzies, at least with prohibitory clauses, and often with irritant and resolutive clauses,, were known long before 1685. These conditions laid the vassals under a certain obligation, in honesty and good faith to respect the tailzie, and they were effectual against gratuitous alienation, though possibly not sufficient to exclude the claims of creditors; the superior was also bound to insert these prohibitions in his charter, it being remarked by Lord Braxfield, in M'Kenzie's case, that a superior “was always obliged to grant a charter with prohibitory clauses.” This being the case, it would be alike anomalous and unusual to give superiors a compensation to any extent, merely because a law was passed making prohibitions long sanctioned, and held obligatory inter hœredes, more operative and secure, it being quite clear that vassals were previously entitled to frame such prohibitions, and. that superiors ab antiquo, were bound to repeat them in their charters. Indeed, when an investiture of old was once established under a superior, the principle and bearing of the feudal system was, rather to retain the vassal and to maintain the rule de non aliendo, than to enable the superior to make a profit by its violation.
This point was briefly adverted to in the opinion delivered by the Judges in the late case of the Duke of Hamilton against Lord Hopetoun, already referred to. The consulted Judges stated, that they were “not aware of any ground on which a superior can be held bound to admit clauses irritant and resolutive into the investure on payment of a composition or casualty of one year's rent, or on which he can claim such a casualty on account of having admitted such clauses.” But it was added, that the claim of the superior on that ground was excluded by the form of that action, and if so, it is equally incompetent in the present case.
In every view, therefore, if the Lord Ordinary had given his own decision in this case, he would have been disposed to sustain the pleas of the defender.”
The Court, after hearing counsel, ordered the cases to be laid before the other Judges for their opinions, which were delivered in the following terms:—
“We are of opinion that the pursuer is bound to enter the defender upon the terms offered by the latter, viz. on payment of a year's feu duty in name of relief as in the ordinary case of the entry of an heir; and that he is not entitled to demand a year's rent, in name of composition, as in the case of the entry of a singular successor.
We come to this conclusion upon the general ground, that, where the superior, as in the present case, has already received, upon the change of investiture, the composition of a year's rent at the entry of the first member of entail not being heir of the previous investiture, he is bound throughout to deal with the entail as the existing investiture of the estate; and to carry out and give effect to the destination therein contained, as the rule of that investiture in regard to succession,—and consequently to receive the whole series of substitute heirs ( without distinction of one from another), as the line of succession thus fixed respectively opens to each in the express character, and as entitled to all the privileges and rights of heirs of the investiture.
In other words, we adopt unqualifiedly the doctrine of Erskine,II. 7, 7, as a correct statement of the rule of law applicable to this question ; that “though singular successors, whether adjudgers or voluntary purchasers, are liable in payment of a year's rent to the superior for changing the former investiture; yet, where a proprietor entails his lands, the superior is not entitled to the composition of a year's rent from every successive heir of entail, who is not heir of line to him who stood last infeft, on pretence that he is a singular successor. The heir of the last investiture cannot be called
a singular successor, and he is founded in a right to demand an entry, upon payment to the superior of the sum due to him by law, in name of relief, upon the entry of an heir.”
Accordingly, had it not been for the clause of reservation, which the superior in the present case inserted in his charter of resignation, it is altogether indisputable that every successive heir of entail, whether heir of line to him who stood last infeft or not, must have been received and entered upon this footing. The pursuer himself concedes this. It was for the express purpose of avoiding such a result that the clause of reservation was resorted to. And it had been the same in all the former cases: For example,
In Lockhart v. Denham, 10 th July 1760 ( Dict. 15,047), the Court, even in the face of an express clause, which, if the report be correctly stated, had been embodied in the charter, “that every heir of entail shall be obliged to pay a year's rent for his entry, unless he be at the same time heir of line to the person who died last vest and seized:” “ Found, that, in respect the pursuer had acknowledged the entail, by granting charter and infeftment thereon, he was obliged to enter the defender as heir of entail, and not as singular successor.”
So, in M'Kenzie v. M'Kenzie, 4 th July 1777 ( Dict. v. Superior and Vassal, Appendix, No. II.), the Court, doubting, it is true, whether the judgment in Lockhart's case might not perhaps have gone too far, in refusing effect to the clause just quoted (which, in one sense, it might be contended, was made a positive condition of the new investiture, and as such, while it remained unreduced, ought to have received effect against all claiming right through that investiture), had still no hesitation as to the general doctrine,—That, were the entail once to be embodied in any charter to be granted by the superior, without some express clause qualifying this recognition, and reserving the superior's rights, the whole series of substitute heirs—no matter how much strangers in blood to each other—must become from
that moment heirs of the investiture, and quâ such would be entitled to an entry, not as singular successors, but as heirs. In point of fact, in this case nothing was decided: and in order to solve the difficulty, the question was kept open for future discussion. But a reservation—saving the legal rights of both superior and vassal—was inserted in the judgment, just because the Court felt that otherwise an unqualified charter would, by force of the law itself entitle a stranger to enter without paying a composition.' Indeed nothing can be more instructive on this head than the words of Braxfield, as they are reported by Hailes. “ Query—May not the superior throw in a reservation? If he does not, he cannot afterwards claim; for the granting of the first charter is the enfranchisement of all the subsequent disponees.”
The case of Duke of Argyle v. Earl of Dunmore, 19th November, 1795 ( Dict. 15,068), is to the same effect. The superior there insisted, that it should be made an absolute condition of the entail investiture, “that he should not be obliged to enter such of the substitutes as were not heirs male or of line to the vassal last entered and infeft, without receiving a year's rent from them, as singular successors also;” and he did this, ‘ because,’ as he argued, after acknowledging an entail, “ by granting a charter upon it, although it contained the reservation proposed by the defender,” (one similar to that in Mackenzie's case,) “he would be precluded from making his present claim.” But the Court refused what the superior thus demanded; and “in respect the reservation proposed by the vassal leaves the question entire when it shall occur,”— ordained the charter to be given upon that footing.
At last, the precise question occurred, under a charter, which had been granted without any special clause, either of reservation or obligation, in the superior's favour: D. Hamilton v. Baillie, 22 d Nov. 1827 (6 S. D. 94.) The superior endeavoured to shake himself rid of the implied recognition, by
pleading that the charter had been granted a non habente potestatem to that effect, and that he did not represent the granter, —but this again was met by the answer, that the investiture had since stood unchallenged for more than forty years, and so was fortified by prescription:—and the Court had to dispose of the point immediately before it, as if the charter had been validly granted from the first. It was held that the entail having been simpliciter recognised, and embodied into the investiture, the superior, who had “refused to receive as his vassal a party claiming entry as an heir of entail under the charter— except in the character of singular successor, and on payment of a year's rent,— was bound to enter him as heir.”
Whether, therefore, the superior may at first refuse to grant a charter embodying a tailzied destination,—or whether, granting it, he may be entitled so to qualify the right, as to leave it open to him afterwards, to insist, on a departure from the direct lineal line, for all that he might competently have demanded, had he originally refused,—may or may not be made a question. But it is settled law,—as regards every charter wherein the tailzied destination shall once unqualifiedly have been embodied—that under that destination, all are to be received as heirs, and that no distinction whatever can be taken among those heirs, as being, some, heirs of line, and some, strangers, to the vassal last infeft—the investiture alone affording the rule of succession in the fee—and all being alike heirs of the investiture.
Without proceeding farther, then, we think this sufficient of itself to expose the whole fallacy of the pursuer's reasoning, inasmuch as his argument appears to assume throughout, that, whoever is not an heir of line, must, of necessity, in the eye of law, as applied to the constitution and construction of feudal rights, be regarded and dealt with as if he were a singular successor. The truth is, that in feudal succession, the very question, Who is heir of line? can never to any practical effect
arise, unless where the feu-right itself is conceived in favour of heirs of that class. The essential question always is, Who is heir of the investiture? Indeed, even where the investiture is in favour of heirs of line, it is only as being heirs of the investiture thus conceived, that the heirs of line themselves succeed.
Nor is it out of place here to remark, that this view of the matter seems also to dispose of the pursuer's argument, upon the supposed reservation of the superior's rights as connected with the present question, contained in the statute 1685, introducing and authorizing strict entails. For, if it were, indeed, vi statuti, that the superior's rights were saved, it could require no special clause of reservation, ex pacto privato, to be engrossed in the tailzied investiture in order to work out that end. In such case, a clause of this kind would be mere supererogation. The entail itself, as it is constituted into a legal right only by force of the statute, must of necessity have carried the statutory reservation along with it, as parcel of the right, if not, indeed, an express condition of its existence. Since, therefore, the law holds that, notwithstanding the statutory reservation, there is nothing whatever saved to a superior, who simply obeys the statute by giving a charter unqualified in græmio, it follows, that it is not by force of the statute, but by force of some express clause embodied in the writ,—in other words, by the positive private stipulation of the parties inter se,—that the superior's rights in this respect are to be saved, if, indeed, he have any legal rights belonging to him in the matter.
This brings the whole question to the point,—Is or is not the superior entitled to refuse a charter, where the vassal demands an investiture entailing the feu?
In the first place, there is nothing in the mere circumstance of the estate's being settled under the fetters of a strict entail, which entitles him to refuse. The entail may be fenced in the most effectual manner with all the clauses authorized by the act 1685, and, provided the destination do not extend beyond
the body of lineal heirs, the superior has no choice. This the pursuer concedes; and it is the necessary consequence, besides, of all those cases, wherein the superior has been ordered to embody the tailzied destination, with no other reservation but one affecting the succession of substitutes, who appear to be strangers to the direct line. As laid down by Braxfield in Mackenzie's case, “strip the deed of substitution to strangers, and the superior might be obliged to grant a charter, even with prohibitive clauses, &c. The superior does not suffer by the line of succession being continued.”
Nor is this the case only, where the direct lineal line of succession is preserved. The destination may even be broken in favour of strangers to this line,—and still, if the destination thus broken and interrupted in favour of strangers was also the destination of the prior investiture, it may be changed from a fee-simple to a strictly fenced entail destination,—and (as was substantially decided in Mackenzie supra) the superior be obliged to grant a charter in terminis, and to receive even the stranger substitutes as the heirs of investiture, notwithstanding the change effected through the fee's being now constituted into a proper tailzied fee.
But, if it be thus true, that the superior's right of refusal in no respect depends upon the circumstance, that the estate has been tied up from future alienation, by the fetters of a strict entail, it must be upon some ground wholly apart from the operation of the statute 1685, that that right, if such indeed there be, must rest. In other words, it must rest upon some ground, applicable not less to an ordinary destination in favour of heirs of provision before the statute, than to the most strictly fenced and protected destination in favour of heirs of entail since.
This would, indeed, give a very large and indefinite operation to the principle contended for by the pursuers. For it would just come to this, that wherever—no matter whether by
strict entail, in fee simple, or under clauses merely prohibitory and therefore defeasible at pleasure—the legal order of succession should come to be in the slightest degree broken in upon, the superior might reject the destination as an encroachment on his feudal rights, and refuse a charter.
It is difficult to conceive that so very broad and widespreading a principle as this should have been the law, and a question for the first time come to be stirred in regard to it, under the Statute 1685. Conjunct fees,—destinations to heirs of a marriage,—the succession of heirs of provision generally, —in short, every case where land came to open in favour not of the hæres natus, but the hæres factus, must equally have raised the question under this more general aspect. But we are not aware of a single instance, among all these classes of cases, where a mere departure in the destination from the direct lineal order of succession was ever set forward as a ground entitling the superior to refuse a charter.
The principle, indeed, is excluded by that very case of Duke of Hamilton v. Earl of Hopetoun, 8th March, 1839, with reference mainly to the bearing of which the present consultation has been thought necessary. It was there expressly laid down in the opinions, that, “a purchaser of land from the vassal of a subject superior is entitled, on payment of a casualty, or composition of one year's rent, to obtain from the superior a new charter, and a precept of sasine of the fee. This charter and precept, we think, he is for that composition entitled to demand, shall be granted in favour of himself and all his heirs-at-law, in any order of these heirs he pleases, provided only he shall not in this destinotion go beyond his heirs-of-law to strangers. He may equally name to the superior heirs-of-law simply, or heirs-male, whom failing, heirs-female, or any other arrangement of the body of his heirs-of-law.”
It is very true that the opinion thus delivered is qualified by the proviso that the vassal “shall not in this destination go
beyond his heirs-of-law to strangers.” But this, it is thought, must be held to have been introduced merely to save and keep open a case which was not at the moment before the Court. The particular destination there to be dealt with was one which did not go beyond the body of the heirs-of-law, and it was of course right to confine the judgment to the individual destination on which the question had arisen.
The important consideration, as regards the judgment actually pronounced is, that it completely negatives the pursuer's main position in the present case, viz., that the superior is entitled to refuse a charter, wherever the destination calls the substituted heirs in other than the direct line of blood,—and this upon the general principle, that every one who would not take as an heir in the common order of law, must of necessity be dealt with as a singular successor.
In this respect, indeed, we can recognise no distinction whatever, in point of principle, between a departure from the legal order of succession within “the body of heirs-of-law,” and a corresponding departure by going out of that body. If the pursuer be right in his argument, that a substitute heir, who is not heir of line to the last entered vassal, must be held a singular successor, because the destination in such a case substantially operates a conveyance from the last heir, and is not in the proper sense to be dealt with as at all a legal succession—this applies in its full force wherever the order of law is broken in upon in the least degree. If a father convey to a second or any younger son,—or one of several brothers to a sister,—the disponee, in such case, must enter and pay composition as a singular successor, although “within the body of the granter's heirs of law.” So, if a father or brother in the two cases supposed, take a grant to himself in the first instance, whom failing, to the second or younger son in the first case, or to the sister in the second,—the substitute in this destination could not, of course, though within the general body of heirs of law, take as
heir of line to the last entered vassal; and the legal order of succession would just be as much defeated,—and the necessity ( but for the destination in the investiture) of a fresh deed of conveyance to carry the estate over the proper heir of line would just be as palpable,—as if the destination in its second branch had been in favour of a total stranger to the blood. But had this departure from the line of blood been effected by conveyance, instead of being brought about by the operation of the investiture, as a destination once for all, the superior must have had his composition as from a singular successor: and so on to the end, wherever the direct line was at all or to any effect departed from. Now the judgment in Lord Hopetoun's case authoritatively excludes this, in every possible variety of case, but the single one of introducing a stranger. The superior's right, therefore, cannot turn upon the distinction of heir and singular successor in the sense that the pursuer contends for. Yet putting aside that distinction, what legal principle is there, which discriminates between a singular successor within the line of blood, and a singular successor out of that line?
Accordingly, we have the authority of Lord Stair, where he treats of tailzied destinations, such as they were known before the statute 1685,—for holding, that the superior could not protect himself against them by refusing a charter. Indirectly, and by force of adjudication, any destination whatever could be forced upon him. If “the debt and decreet whereupon the same proceeded, be conceived in favour of heirs of tailzie, in that case the apprising or adjudication and infeftment thereon must be conform” ( Stair 2, 3, 43.) And again, (§ 59), “It is a general rule that quisque est rei suæ moderator et arbiter, every man may dispose of his own at his pleasure, either to take effect in his life, or after his death, and so may provide his lands to what heirs he pleaseth, and may change the succession as oft as he will, which will be completed by resigning from himself and his heirs in the fee, in favour of himself, and such
other heirs as he pleaseth to name in the procuratory, whereupon resignation being accepted by a superior, and new infeftment granted accordingly, the succession is effectually altered; yea, any obligement to take his lands so holden, will oblige the former heirs to enter, and to denude themselves for implement of that obligement, in favour of the heirs therein expressed; and if the superior refuse to accept the resignation, or to give confirmation, there will follow an adjudication for implement of the disposition, which is ordinary, and thereupon the superior must receive the adjudger; so that the first constituter of a tailzie, or any heir succeeding to him, may change it at their pleasure.” That this did not mean heirs of tailzie merely within the line of blood, is made clear by another passage a little farther on in the section last quoted, where his Lordship speaks of “a tailzie of a sum of money, lent in these terms, “to be paid to the creditor and the heirs of his body; whilks failing, to the father and heirs of his body; whilks failing, to a person named, and his heirs and assignees whomsomever.””
“We are therefore of opinion—1 st, That independently of the statute 1685, the superior was not entitled to refuse a charter, though demanded in favour of heirs of provision, or such tailzied destination generally as the law then recognized; 2 d, That the introduction of strict entails by that statute, made no difference in this respect, the superior not being entitled, where he would otherwise have been compellable to embody the destination in his charter, to refuse doing so merely because of the fetters of entail; and 3 d, That from the moment the destination came thus to be embodied in the charter, and thereby became the rule of that investiture quoad the succession, every substitute within the destination became thenceforth an heir of the investiture, and as such, whether heir of line of the last entered vassal or not, was in all cases alike entitled to an entry,
John A. Murray.
I concur in all the views expressed by Lord Ivory on this question; and beg to add, that it humbly appears to me that his Lordship has obviated satisfactorily the argument founded on the reservation of the superior's rights, inserted in the charter granted to the first vassal, who was entered under the present tailzie, after the form suggested by Lord Braxfield in the case of M'Kenzie, and allowed by the Court in the case of Argyll, and adopted in practice in other modern instances.
It is clear, as observed by Lord Ivory, that such a clause cannot have any other or more extensive effect than to reserve the rights of the superior, as they stand reserved by the saving clause at the end of the act 1685, which provided, that “nothing in this act shall prejudge his Majesty, or any other lawful superior, of the casualties of superiority which may arise to them out of the tailzied lands.”
This reservation it is thought imported no more than a saving of such rights as superiors had prior to the act. No new right was given to superiors. Their subsisting and ancient right, as it existed before the passing of the statute was recognised. But the whole authorities prior to 1685, concur in declaring, that old vassals could at that time, by adjudication, if not by the acceptance of the voluntary composition by the superior, establish the validity of any new investiture he chose to make of the fee, by paying a year's rent to the superior. Still, in order to preserve that casualty, the reservation at the close of the act 1685 was proper. As tailzied investitures were then expressly sanctioned and declared to be effectual by statute, a plea might possibly have been set up, that superiors
The following are the opinions of Lords Mackenzie, Jeffrey, and Gillies; of Lord President Boyle, and of Lord Fullerton:
“I think that the pursuer is entitled to demand from the defender a year's rent, as for the entry of a singular successor. The clause of reservation prevents the defender from founding on the rule, that all destinees of investiture must be admitted to entry as heirs—a rule which in itself I fully recognise, but which is excluded from governing this case, which depends on the general question, whether a superior in landed property is bound, on offer of one year's rent, to grant new infeftment to a disponee or singular successor of the vassal, with a destination of heirs of investiture including not only all the heirs of law of the disponee, but including as many strangers as the disponee chooses to have made heirs of investiture in the fee, by the act of the superior. Now that question, I think (though not without difficulty), must be answered in the negative.
The general rule of feudal law in Scotland was, that a superior could not be forced to admit into a feu any persons but the heirs of the vassal to whom he had given infeftment. By the statute 1469, c. 36, an appriser got right to demand from the superior infeftment in the feu on payment of one year's rent. And so purchasers of the estate were enabled to force an entry by becoming apprisers. Nothing is said in the statute regarding
the heirs of the appriser; but by fair interpretation it was evident, that the appriser or purchaser must obtain infeftment to himself and heirs, not in liferent only, but in heritage. But there exists not in the statute the least shadow of foundation for holding that the appriser or purchaser, on payment of one year's rent, had right to demand from the superior infeftment in favour, not only of himself and all his heirs, but of other persons who were not his heirs at all, but wholly strangers to his blood. By other statutes, adjudgers in implement, and other adjudgers and purchasers at judicial sales, were in like manner entitled to obtain from the superior infeftment, on payment of one year's rent. And lastly, by 20th Geo. II., the superior was bound to give infeftment in the feu to any disponee or singular successor having a procuratory of resignation in his favour. These statutes, in like manner as 1469, c. 36, say nothing of the heirs of the adjudger or singular successor; but on evident grounds of rational interpretation, these parties had right under the statutes to infeftment in favour of themselves and their heirs. And in reference to these statutes it is just equally clear, that they afford no grounds whatever for holding that the adjudger or disponee had any right to demand from the superior infeftment in favour, not only of himself and of his heirs, but farther in favour of other persons, who were not his heirs at all, but mere strangers. A superior might, if he chose add such strangers to the destination of heirs granted to his new vassal, and if he did so, he made them heirs of investiture. But there exists not in the statutes any ground whatever for saying, that the superior was bound, for payment of one year's rent, to admit strangers in this way.
And the superior, besides the right, had a strong interest to object. For anciently the feu reverted to the superior himself on failure of the vassal and his heirs. And after the Crown's right as ultimus hæres prevailed, still the Crown's donatory paid one year's rent to the subject-superior for an
entry. Vide Ershine, B. iii. tit. 10, §. 1 and 2; Jur. Styles, vol. i. p. 346. This interest was indeed comparatively weak, until fetters against alienation, &c., were added to destinations of succession; because, if the vassal obtained a destination reaching to mere strangers nowise connected with his heirs by blood, without any fetters, it was highly probable that, by alienation or alteration of the succession, the tailzie would be put an end to before they succeeded; and therefore, when there were no fetters, the right of the superior might often not be rigidly insisted on. But when fetters were added, the interest of the superior became certain and important.
There are, however, conditions on which it might reasonably be held that a superior ought to grant a destination in favour of strangers. These are, that the charter shall bear a provision, that each stranger, who thus, being in truth no heir but a singular successor, should obtain infeftment for himself and his heirs as destinees of investiture should, for that infeftment, pay one year's rent; or, what in truth is equivalent, in the view that the superior's claim is good in law, a provision, that the superior's claim for a year's rent, as a composition for giving infeftment to each stranger, should be reserved. Under these conditions, accordingly, I believe it has been usual in practice to grant infeftment to singular successors, with destinations including strangers, as well as their own heirs. But without such clauses, I do not believe the practice has prevailed; and still less has the right of the singular successor been recognized, either in conveyancing or in judicial opinion. On the contrary, all the authorities our decisions afford lie the other way.
In the case of Lockhart against Denholm, decided 10th July, 1760, both Sir Archibald and Sir Robert Denholm, in the early part of the last century, took charters from the superior, with a clause, “that every heir of entail shall be obliged to pay a year's rent for his entry, unless he be at the same
time heir-of-line to the person last vest and seised;” and Sir Archibald, accordingly paid 200 l. to Mr. Lockhart as a composition for a year's rent,—pretty good evidence of the understanding of conveyancers on the subject. True it is, that, notwithstanding this provision, the Court, on some reason that is not explained, found that “the pursuer ( i.e. Lockhart) had acknowledged the entail, by granting charter and infeftment thereupon to the late Sir Robert Denholm, he was obliged to enter the defender (a substitute, not heir-of-line) as heir of entail, and not as singular successor.” This decision has since been declared by the Court, and universally understood, not to be good authority on the point decided. But it is material to observe here, that it does not rest at all on any right the entailer originally had, to have obtained on payment of one year's rent, new infeftment to himself and heirs of investiture, not being his heirs of law, though that was argued; but solely on this, that being actually admitted into the investiture by the superior, they must have entry as heirs, not as singular successors, the clause of reservation being, on some ground not explained, held not to be effectual.
The next case, Mackenzie against Mackenzie, 8th July, 1777, Mor. 15,053, is thus abridged in the Dictionary:—
“The Lords found, that a superior of entailed lands was obliged to enter the heir of entail, who in this case was likewise the heir of the former investiture, and lineal successor in the lands, on receiving a duplicando of the feu-duty, and was not entitled to demand from him a year's rent, or other composition; reserving to the superior, and his successors in the superiority, any right which they may have to a year's rent, or other composition on the entry of any future heir of tailzie, not an heir of investiture prior to the tailzie.”
It is plain from this, that the Court were not satisfied that the superior, though bound to admit Mackenzie and his heirs, was bound to admit strangers as heirs of investiture, without payment of a
year's rent for that admission. From the fuller report of the case in the Appendix, it rather appears that the entailer had been himself vassal before the entail, and so was not under the necessity of paying one year's rent for new infeftment to himself and his heirs of law, and of the former investiture. But if it was so, that makes little difference, since there is no doubt in practice, nor was it denied, that a vassal resigning may, without payment of any casualty, demand new infeftment to himself and his own proper heirs of law and of the former investiture. The demand of the superior, therefore, in Mackenzie's case, was rested, and the reservation admitted, solely in reference to the introduction of a stranger as heir of investiture. In this case, it is said, “the Court seemed very much inclined to get complete information concerning the practice; but the practice was discovered to be various.” That is exactly what was to be expected, on the understanding that the superior's right in law was good. Still there were many considerations which would, in many cases, induce the superior not to insist on that right.
The next case is that of the Duke of Argyle against the Earl of Dunmore, 19th November, 1795. In that case, “the defender” (who was the institute, or disponee) “was willing to pay a year's rent for his entry as singular successor; but the pursuer further insisted, that, the charter should contain a declaration, that he should not be obliged to enter such substitutes as were not heirs-male, or of line, to the vassal infeft, without receiving a year's rent from them as singular successors also.” The defender offered to take a charter, with a clause reserving the superior's claim to a full year's rent, on the entry of an heir of the tailzied investiture who was not heir of line to the last infeft; and he contended, that while he made this admission, “it was an unnecessary hardship on the defender to oblige him to discuss a general point of law, the decision of which cannot affect the interest of himself or of his
descendants.” And on that ground evidently, the Court, holding the case of Denholm to be wrong decided, and that the reservation was effectual, adhered to the finding of the Lord Ordinary in favour of the Earl of Dunmore. Their interlocutor was—“In respect the reservation proposed by the Earl of Dunmore leaves the question entire, when it shall occur,” (unanimously) ‘adhered.’
Next is the case of the Duke of Hamilton against Baillie, 22nd November, 1827, Shaw and Dunlop, vol. vi. p. 94, which is thus summed up:—
“A superior possessing under an entail, having granted a charter of resignation in favour of a vassal, embracing an entail containing a series of heirs; and sasine having been taken, and possession enjoyed for forty years; and an heir of entail having succeeded to the superiority, and refused to receive as his vassal a party claiming entry as an heir of entail under the charter, except in the character of a singular successor, and on payment of a year's rent,—held that he was bound to enter him as an heir.”
“The opinions of the Court are brief and clear:—
Lord President,—In this case the superior, by granting the charter, has agreed to give the heirs of tailzie an entry as heirs; and this has been acted on for forty years. It may be another question, whether a superior is bound to admit of an entail by a vassal.”
I have not yet noticed the case of the Magistrates of Aberdeen against Burnett, 17th June, 1808, Fac. Coll., because I do not consider it at all in point here. It is thus abridged:—
“A singular successor of the vassal in a feu, on payment of one year's rent to the superior (a royal burgh) has a right to demand a charter to himself and heirs whatsoever, though
the charter of his author was to heirs male, burgesses of that burgh, with a clause in the redendo, that they should perform burgh services, and that the fee should not devolve on the feminine sex.”
Your Lordships know, that the words “heir whatsoever” in a charter, have no meaning different from “heirs,” or “heirs at law.” The vassal disponee in that case made no demand of a tailzied fee at all, or any admission of destinees beyond his own heirs of law.
Lastly, I may notice, though not as a decision in point, the case of the Duke of Hamilton v. the Earl of Hopetoun, 8th March 1839. In that case too, the present question was not presented for decision. The expression, in the opinion of the Court touching it, is but accidental in giving a general exposition of law. Still I cannot say it was not their opinion. It was the opinion of myself, who wrote it, and I cannot doubt was so also of the other Judges who signed that opinion.
I may only add, in reference to recent practice, that I have made some inquiries among conveyancers, and believe the practice to have continued to this day, of superiors refusing to grant a destination beyond heirs of law, unless upon condition of a clause of reservation in favour of the superior's right, to have effect in case the stranger destinees shall succeed, and as often as they shall succeed.
In these circumstances, I am not able to think, that there is any thing like sufficient authority for rejecting the fair and reasonable interpretation of the statutes, giving to the singular successor, for his one year's rent, right to obtain new infeftment to himself and his heirs of law, but not to other persons wholly strangers to his blood, as destinees of investiture. And if I be right in that opinion, then it is not, I think, denied, and at any rate is clear, that the superior must be successful in the present case.
It only remains for me to notice a passage in Stair's Institutions, B. ii. tit. 3, § 43, which appears of importance at first
J. H. Mackenzie.
I concur entirely in this opinion of Lord Mackenzie: Only I give much more weight than he appears to do, to the recent decision in the case of the Duke of Hamilton and Lord Hopetoun, of March, 1839; which, though it does not find, in express or direct terms, seems to me necessarily to imply, that while a vassal might require his superior to grant an investiture to the whole of his natural heirs, in whatever order he might choose to arrange them, his right at all events went no farther; and that it was an indispensable condition in any series of heirs so sought to be enfranchised, that they should all hold that character jure sanguinis; and not provisione hominis. If the judgment did not proceed upon this assumption, or rather fundamental principle, I really do not know upon what it proceeded; and cannot perceive any connection between the reasoning, so ably deduced in the unanimous opinion of the consulted Judges, and their conclusion. For myself at least, I can say, that I conceived this limitation of the vassal's right to be as distinctly fixed by the decision, as its extension to the case more immediately in question; and that I could not now adopt the views of the defender, without feeling that I was going directly against the authority of that most deliberate decision. In strictness of principle, indeed, and especially in
I concur in the opinions of Lord Mackenzie and Lord Jeffrey.
I concur in the opinion of Lord Mackenzie, with the addition made to it by Lord Jeffrey, though I was not present when the judgment in the case of the Duke of Hamilton against the Earl of Hopetoun was pronounced by the Second Division of the Court.
I agree in opinion with Lord Jeffrey and Lord Mackenzie, that in this case the pursuer is entitled to demand from the defender, the ordinary composition as for a singular successor. And I may be permitted to add, in explanation, that I think the conclusion thus come to, stands quite clear of certain other points, on which the defender seems to consider it to be dependent, and which I should think it quite hopeless to maintain. Thus, in the first place, I think it clear, that when a superior has once admitted, without qualification or reservation, a certain line of descent into the investiture of the vassal, that series of persons, however unconnected by blood, must be dealt with by the superior as heirs. That is the consequence of the
But these propositions do not touch the present question; because here the superior has never absolutely acknowledged the investiture. He has never, either expressly or by implication, agreed to hold the stranger substitutes as heirs. On the contrary, though granting the investiture in favour of a particular line of descent, as he was bound to do by the decision in the case of the Duke of Argyle against Lord Dunmore, he has done so only under the reservation also sanctioned by that decision, as well as that of M'Kenzie v. M'Kenzie, that his right should be entire whenever the contingency happened to which the reservation applied. No doubt, if the case of Lockhart against Denham were understood to fix the law, there would be an end to the question, because there a reservation much stronger and more express was entirely disregarded. But the authority of that decision was superseded by the clearest of all implications in the cases of M'Kenzie and the Duke of Argyle; as it is impossible to suppose that the Court could either insert in their interlocutor, as they did in the first case, or appoint to be inserted in the charter, as they did in the second, a reservation in itself utterly nugatory.
Here, then, the superior having reserved all his rights, in the event of the succession opening to an heir of investiture, not the heir by blood of his immediate predecessor, the question arises, what those rights are. If a vassal is in every case entitled, as a matter of absolute right, to demand, and a superior bound, as a matter of absolute obligation, to grant an entry, not only to the individual seeking an entry and his heirs, but to any number of stranger substitutes, then, of course, the reservation would lead to no consequence. It being clear that an heir of investiture must in the ordinary case be treated as an heir, it would follow, that if the superior has no option, but must admit into the investiture as many stranger substitutes as the vassal chooses, he can have no legal right to stipulate for a composition on the entry of any of those substitutes. But, on the other hand, if the superior lies under no such obligation,— if, in the general case, he is not absolutely bound to admit stranger substitutes into the investiture, or to do more than grant the entry to the individual craving it, and his heirs, then of course he is entitled to reserve, and to reserve with, effect, his right to claim the ordinary composition when the succession opens to a stranger substitute. And in regard to the composition, the Act 1685, authorising entails, has just as little effect against the superior, as the imposition of fetters in terms of that statute could have in creating a claim for a composition to which he was otherwise not entitled. If, in the case of an unfettered investiture, the superior was entitled to stipulate that each stranger substitute to whom the succession opened, should be dealt with by him as a singular successor, that legal right is sufficiently protected by the general reservation in the statute, of all rights of superiority.
The question, then, truly comes to be simply this, whether a superior is absolutely bound, to renew an investiture in the case of a vassal in possession, or to grant a charter to a singular successor, on payment of a year's rent, not merely in favour of
But it does not appear to me that there is authority for the affirmative of the first proposition. It is undeniable that the obligations of superiors in this matter, are the creatures of statute. The whole of the statutes from the act 1649, c. 36, regarding the entry of apprisers, to the 20th Geo. II., relating to singular successors, are limited to the entry of the appriser, or adjudger, or purchaser. They were passed for the sole purpose of compelling the superior to admit a stranger vassal, which, at common law, he was not bound to do. No doubt, as the subject of the right was heritable, the entry of such appriser, adjudger, or purchaser, necessarily implied the descent of that right to his heirs, so that the obligations of the superior to enter the first acquirer, necessarily included the obligation to enter the heirs of such acquirer as the heirs of the new investiture. In strictness this was applicable only to the heirs at law of the vassal, but in practice the particular class, of the general body of heirs to whom the original right was to devolve, seems to have been left to the option of the vassal—and accordingly in the case of the Duke of Hamilton against the Earl of Hopetoun, it is laid down in the opinion of the majority of the Court, that the vassal in getting the entry, “may name heirs of law simply, or heirs male, whom failing, heirs female, or any other arrangement of the body of his heirs at law.” But that is stated under the qualification immediately preceding, “he shall not go beyond his heirs at law to strangers.”
I cannot doubt that this was the deliberate opinion of the Judges who expressed it—and the distinction seems to be well
It is true the superior may have in general very little interest to object to such an extension of the destination, particularly when it is unfettered; because, in such circumstances, the probability of alienation, with its attendant benefit of a composition, is rather increased than diminished by it. But in many cases easily supposable, a superior may have a very clear interest. For instance, in the case of a purchaser who has no family, and beyond the age admitting the probability that he ever shall have any—or an entered vassal in the same situation, could the one demand an entry, or the other resign for new infeftment in favour of himself and the heirs of his body, whom failing, an entire stranger. Could a superior be bound to grant such an entry without a reservation of his rights; and would not that reservation entitle him to demand the composition on the estate devolving on the substitute, nominally called as heir, but quoad the superior, and in every fair view of the case, nothing but the disponee of the vassal? I think these questions would be answered in favour of the superior, and the contrary pretensions on the part of the vassal in such circumstances would neither be supported by the statutes, nor, as I understand, by any usage which has followed on them. Indeed, the principle necessarily involved in the
Now, it does appear to me that this view cannot be supported,—and that on the contrary, the rights of these parties are fairly extricated according to the other principle, namely, that although the vassal claiming the entry may have an interest, and has the right particularly under the statute 1685 to create any number of substitutions, and thus to render the parties so called, in form, the heirs of investiture quoad the form of succession, still the superior has as clearly an interest and a right to stipulate, that in relation to him, the substitutes shall be treated in their character of disponees, taking by the pure act of the vassal himself, directly operating at each successive opening of a new substitution. For it appears to me, that in regard to the superior, each successive substitution can be considered in no other light than a dispositive act of the original vassal, postponed and contingent indeed, but still his dispositive act, operating as a conveyance to a stranger, on each occasion when the contingency is realized.
While I conceive this to be the sound construction in principle of the conflicting rights of superior and vassal in this matter, I am not aware that it is contradicted by any practice
With regard to the passage in Stair (B. ii. tit. 3, § 43), it is so obscurely expressed, that I do not think that it affords any very conclusive authority; or even any clear indication of the author's own opinion upon the point now under discussion. And indeed, if it has any bearing upon the point at all, I think it affords an authority in favour of the pursuer. At the time when it was written, the superior could not be called upon to alter the existing investiture without his consent. The object was to be obtained only indirectly by means of an apprisement or adjudication. After stating this, the passage proceeds:—
“So neither in that case is he obliged to constitute a tailzie, but only to receive the appriser or the adjudger and their heirs whatsomever; unless the debt and decree whereupon the same proceeded be conceived in favour of heirs of tailzie, in which case the apprising or adjudication and infeftment thereupon must be conform, unless it be otherwise by the consent of parties.”
Here it certainly appears to be implied,
As to the passage from Erskine, the opinion there given in such broad terms, rests entirely on the case of Lockhart there referred to, which since the late decisions in the cases of M'Kenzie and the Duke of Argyle, can no longer be considered as an authority.
These opinions were laid before the judges of the second division at a time when Lord Meadowbank, one of their number, was confined to his house by severe indisposition. It being deemed expedient, however, that his Lordship's opinion on the cause should be obtained, the second division of the Court, of this date, pronounced the following order:—
“The Lords, in respect
that Lord Meadowbank was present when the Interlocutor was pronounced remitting the cause for the opinions of the Lords of the first division, and of the permanent Lords Ordinary,—had then considered the case,—that there has been since laid before his Lordship the opinions of the consulted Judges,—and that it is provided, that, in all cases where such remits have been made, the judgment to be pronounced by the division to which the cause belongs, shall be according to the opinions of the majority of the whole Judges; and his Lordship being now absent from severe indisposition; hereby require of him, if it be not incompatible with the state of his health, to communicate to this division the opinion, if any, which he may have now formed on the whole cause, in order that the same may be taken into consideration on Friday next, with the opinions of the consulted Judges, when the case stands on the roll for advising.”
In obedience to this appointment, Lord Meadowbank returned the following opinion:—
“When this case originally came from the Lord Ordinary, the opinion which I had formed concurred generally in the views of that stated by Lord Mackenzie; but, having since reconsidered the case, I have altered that opinion, and now concur in the result of that of Lords Cockburn, Cuninghame, Murray, and Ivory. And, having had an opportunity of very deliberately considering the notes of the opinion which has been formed by the Lord Justice-Clerk, I find the grounds of my own therein so clearly and luminously stated, that I am desirous that upon them mine should be understood mainly to rest. My absence, therefore, from the deliberations of the Court, can be of no importance to the parties; because it would have been impossible for me to have added any thing in further elucidation of his Lordship's judgment.
Upon these opinions coming to be advised by the Court, the Judges delivered the following opinions:—
Lord Justice-Clerk.—The great difference of opinion in the Court on this question of feudal law, and the importance of that question, involving great pecuniary consequences to such an extensive class of persons, rendering it perhaps a matter of as wide application as any question which was ever stirred, will account for the anxiety with which I approach the point awaiting judgment, although it is one in which my opinions have been long matured. It is very necessary to consider the question on strict feudal principles, else we might do great injustice to a class of rights just as much legal property of the highest kind, as the rights of vassals. But in examining what the feudal principles are which should govern judgment, I cannot concur in a remark in one of the opinions before us, that the relation of superior and vassal has received no modification whatever, except from the direct and immediate operation of special statute.
The defender has raised an objection to the summons as not the proper action to try the question. In the case of Lord Hopetoun, the objection was stated in reply to an argument that the general precept granted by the Duke of Hamilton had been unwarrantably and incompetently used by one not entitled to the benefit of it; and in that case the consulted Judges held the reply to be good, viz., that in an action of non-entry, calling the party who is the heir under the existing investiture, completed by a precept granted by the superior, and the infeftment following on it, the superior cannot say that the infeftment was inept, to the heir under which he calls on to enter. He ought to disregard the infeftment, or reduce it if he held it to be bad. But as it is not disputed by the superior in this case that the investiture containing the destination in question was correctly made up, the declarator of non-entry is a competent,
and, I think, the proper action, to try the question, on what terms the entry is to be given.
I may also say, that I cannot enter into the argument, founded on a misapprehension of the ground of decision in the case of Lockhart v. Denham, viz., that the reservation is not sufficient to preserve the claim of the superior, if he could have originally refused to sanction the destination, which the vassal's procuratory contained. There is a somewhat metaphysical argument stated, to the effect that the reservation necessarily merges, and is absorbed in the sanction of the investiture, so that the defender can plead the very charter containing the new grant against the superior's reservation, which qualifies it as to this matter. But I am of opinion, that the reservation keeps the question completely open, if the claim is well founded, and that this argument rests on a misapprehension of the ground of judgment in Lockhart. Whether such a claim is consistent with the character of heir which the investiture bestows on the parties called by the substitution of heirs of provision, is another question. But I do concur with the defender in the complaint, that there is considerable vagueness and obscurity as to the precise plea which the pursuer means to maintain. His plea on the Record seems to be intentionally as general and obscure as it could be stated. It is, “that, in the circumstances condescended on, the pursuers, as superiors, are not bound to give an entry to the defender as their vassal, except on the condition of his making payment of the usual composition of a year's rent of the lands; and as he has refused to pay that composition, they are entitled to decree against him in terms of the conclusions of the summons.” Now, one of the ‘circumstances’ prominently stated in the Condescendence is, that the vassal's deed contained the prohibitions and fencing clauses of a strict entail, prohibiting sale or alteration of the order of succession. But still I must take this plea
to be that contained in the reservation of the charter, which granted warrant for infeftment on that deed:—“Saving always our own right, and the right of every other person as accords, and declaring that, by granting these presents, we shall not exclude ourselves, or our heirs and successors, from any claim which we or they may have at law to a full year's rent of the lands herein contained, whenever the heirs of entail to whom the succession shall open shall happen not to be the heir of line of the person who was last entered and infeft by us or our foresaids.”
This plea is not rested on the ground that the destination is protected by the clauses of a strict entail. To enforce that plea, I understand the argument to be directed; and although there is manifestly an attempt in various passages to derive benefit somehow from the fact that this deed contains an entail, yet the claim truly is founded on the destination not being to the heirs of line of the last vassal entered by the superior. There is no other plea avowedly stated in the case. (See p. 29, and p. 31). The same is truly the ground taken in the opinions of Lords Mackenzie, Jeffrey, and Fullerton, which necessarily extend the claim against every heir of provision not being an heir at law, without any reference to the fact that he is called in an entail. I hold it to be quite essential to settle clearly in the mind, that the question at issue in no respect whatever depends upon, or ought to be affected by, the fact, that the destination is protected by the clauses of a strict entail. In all the cases, except those of Lord Hopetoun's and Lockhart's, it is manifest that the views stated by the Court, or a portion of them, were much more affected by mixing up these two matters, wholly distinct, than they were themselves aware. A great portion of the pursuer's reasoning is founded on the alleged encroachment on, or an injury to, the superior's rights, caused by the prohibitions of an entail, and by the loss, as it is said, of the benefit to the superior of alienation, of that
very act which originally was considered a fault against the superior of the vassal.
I humbly conceive, that the prohibitions against alienation or alteration cannot in any logical or legal manner affect the question, and that the question is precisely the same as if it had occurred under an ordinary simple destination, or when such was first presented to the superior, a view of the case which, often as it occurs, has never yet been mooted by any superior. True, the motive of the superior may be stronger to try the question in the one case than the other, because the fee simple destination, if not in favour of heirs of line, will infalliby be altered whenever the vassal has only heirs female, and not heirs male of his body. But, in principle, the question is, in my opinion, the same in both cases.
A great point, however, is made when this is distinctly brought out and kept in view, not merely in avoiding the risk of undue impression on the mind from matter not relevant to the inquiry, but still more from the legal view opened up as to the rights of superior and vassal, when the proper effect of the Act 1685 is considered. To the effect of that statute on the present question, I must particularly invite the attention of your Lordships, for I own I have ever thought that its operation has not received in this question the consideration due to it. The pursuer's plea is, that, by the common law of Scotland, he can claim a composition from every party who is not the heir-of-line—of line, be it observed, under his clause, of the person last entered as vassal by the superior under the existing investiture. That, he says, is and always was the law, —the law as to every heir of provision, not being the heir of line—long before entails were introduced, and continued and preserved under the system of entails;—the law, therefore, equally as to a common destination or tailzied destination. Then, observe, the statute expressly gives the lieges power to substitute heirs in their lands by tailzies, and to enforce and
perfect them. What is the meaning of the power so granted? It is to substitute heirs, granted without any limitation; and all those substitutes are called by the statute heirs, and must be held to be heirs, as your Lordships were all satisfied in the case of Anstruther v. A. The substitution of other heirs than the heirs of line could not be overlooked. That it would be absurd to suppose. Entails originated in the preference of other heirs over heirs of line. The term tailzie is derived from the usual and common effect of all such entails, though doubtless, the direct succession might also be often fenced. Hence, the statute was necessarily framed with reference to the selection of parties by the lieges to be their heirs. It has been said by high authority, in the case of the Duke of Hamilton v. Baillie, that the statute is throughout very ill framed. I venture to differ from that remark. I think the statute is most skilfully drawn for all the objects in view, if attention is paid to its terms rather than to pre-conceived theories, which are attempted to be supported by it. But, at all events, so plain a matter as the frequent substitution of others than the heirs of line could not be overlooked in framing it.
Let us follow the power given to its consequences. Either superiors had, before that statute, the right to refuse to enter any heirs other than heirs of line—to reject heirs male for instance—or they had not. If such was the right of superiors before that statute, did it remain after that statute? The power given to substitute heirs is unqualified, co-extensive with the right to lands. Opposition by the superior is neither alluded to nor reserved. Accordingly, on this part of the statute, the superior founds no argument. Any plea he makes on the statute is founded on the special clause of reservation of certain rights at the end of the statute. What that reservation imports, we shall afterwards consider; but, at all events, the very plea founded on the reservation admits that the power
to substitute heirs is given even against superiors, (if they had any right inconsistent with it,) though it is said that their interests are protected by the clause of reservation. But is not the statute very important evidence as to the common law respecting the substitution of heirs? I believe the preservation of the rights of superiors in 1685, was just as great an object as any desire to legalize entails. Rights of superiority were regarded as the most valuable species of property. Feu-duties were thought the best income, as they could not fall in value. The various dues paid were sums of ready money when money was scarce, reckoned of great value; and, accordingly, we know, that the great lawyers of that and the former generation were very fond of the acquisition of superiorities. Great political influence arose from the possession of such, and any encroachment on the rights of superiors, I believe, never was contemplated or intended by the Legislature. This remark requires, no doubt, full effect to be given to the clause of reservation, so far as its terms can go. I regard the statute as important evidence of the common law of Scotland as then understood. If, however, the superior had the right contended for before that Act, then it made, ex concessu, a most sweeping change, whatever is the practical benefit of the reservation.
What is the fair meaning of the leading provision of the statute? That it shall be lawful to the lieges to “tailzie their lands, and to substitute heirs in their tailzies.” It is admitted, as the condition of the argument, as I before stated, that the superior cannot object to the prohibitions and fencing clauses of an entail, and that the statute does not protect him as to that matter. Is that a loss to him? It is said to be so. That is stated in the close of the able note of the Lord Ordinary in Duke of Hamilton v. Baillie, and it is thought that it was only an oversight that the superior's right was not protected from the loss of benefit by alienations. I incline to differ,
1 st, because I do not believe that the high aristocratic Parliament which passed the Act 1685, would have touched on so plain a point as the rights of superiors, which they all held as important parts of their own rights; and 2 nd, because I am satisfied that, on feudal principles, the superior never could have objected to his own grant to the vassal and the heirs called (who they could be is another question) being protected from alteration and alienation. On the contrary, I hold the prohibitions and fencing clauses of an entail to be exactly in conformity with the strictest principles as to the relation of superior and vassal, precisely because it secured the continuance of the grant to the vassal and the heirs called. The decision in the case of Hill, and the old case as to corporations, does not rest on the ground that the superior must receive compensation for losing the chance of alienation; but (see opinions in Hill) because a corporation cannot be a vassal in the proper sense of the term—there being no succession of heirs—and hence the ordinary course of feudal tenure and the leading casualty of relief could not obtain. I regard then, the right to tailzie lands as unqualified and absolute, so far as the superior is concerned, and that there either had not existed or was not left, the right to object to the perpetuation of the estate in the heirs called. But if that was the law on this point, either under common law or under this statute, observe the great importance of this fact, (viz. that the fetters of the entail cannot be objected to,) on the next part of the clause, viz., declaring that the lieges in making tailzies of their lands may substitute heirs in their tailzies. If the perpetuation of any one line of succession—if prohibitions against sale and alteration—cannot be objected to by superiors, then how very different the interest to object to the selection of one set of heirs rather than another. Whatever the order is, it may be completely fenced, and all benefit from change wholly excluded, so long as these heirs do not fail; and the case of the Duke of Hamilton and Lord Hopetoun has settled
that the vassal may call his legal heirs in any order and way he chooses, protecting their succession by the clauses of an entail. But, again, what is there to lead one to suppose that this second and very important, nay, necessary, part of the clause, is less general and unqualified than the former; “may substitute heirs in their tailzies?” This is put as co-exclusive with the right to tailzie lands. It is declared to be the right of all the subjects of the country. All these substitutes are made and declared to be heirs—heirs in every sense of the word—all equal heirs by force of the nomination in the tailzie, and no distinction is pointed at as to the separate character of legal relations or not. I see one opinion declares, that all heirs of provision, if they have no other and additional character, viz., that of blood relationship, are disponees or singular successors, on feudal principles. (His Lordship referred to the opinion of Lord Jeffrey, supra.) I hold just the reverse. I hold that the heir of provision is the character to which feudal law looks, and no other; that any other and additional character which the party possesses is of no moment, and never looked to, and is altogether irrelevant; that if the party is the heir of the grant or investiture, his right and character as such is exactly the same, whether he is a stranger in blood or the eldest son. Indeed it is entirely new to me to hear, that, in a question with the superior, there is any other character looked to than that of the heir of the investiture, or that one heir of the investiture is, in respect of the quality of blood relationship, by which he is not called at all, the proper heir, and all others in that investiture, singular successors. And under this statute, and after the opinions in the case of Anstruther as to collation, I cannot understand how that proposition can be maintained; and accordingly, in the opinion by Lord Fullerton, he, in the very outset, most anxiously disclaims that view. But, then, his Lordship's opinion in two passages, lays down the very same point, though differently expressed, where it is said that every
substitute, who has not in law a character of heir, which he could have established by service, independent of the deed, is a disponee. But whatever might be held as to this point on general speculation, surely any such notion is utterly banished out of this case in the most complete manner by the Statute 1685, which enables the vassal to put all substitutes on the same footing as heirs, whatever claim may be reserved to superiors. Now, when it is said that parties may substitute heirs in their tailzies, is that, or is it not, a power to make them heirs—heirs of investiture,—heirs in every sense of the term? That cannot be disputed, and is not disputed, by the pursuer; for his plea is, that while that is the undoubted effect of the Act 1685, the reservation at the close of it reserves the claim of the superior exactly as if they were not made heirs. But before the object and effect of the reservation can be adequately considered, we must settle what is the legal import and operation of the provision, that the lieges may substitute heirs in their tailzies; and, having settled that, must give full effect to it consistently and steadily—recollecting that the plea on the clause of reservation admits of necessity the force of this first provision. I am humbly of opinion, that, by that provision, the holders of all property obtained, if they had it not before, or now possess a right, to substitute any heirs they choose in their tailzies, and that all substitutes are legally heirs of investiture —heirs in every sense of the term—to the party making the tailzie. The more the object and meaning of this part of the statute is considered, the more clearly does this appear to be the necessary result of this provision. That this is any change in the law, or that a vassal could previously have been refused an investiture to any set of persons whom he chose to name as his heirs, I am far from holding. But whether the law was so or not, it appears to me to be the undoubted operation of the Act 1685, that all persons substituted in any tailzie, or destination of an estate, are heirs, in every sense of the term, to the
entailer—heirs also to the person last infeft—but without, by statute, the consequence of representation—whatever benefit or right may be reserved to superiors by any after clause.
What, then, is the import of the reservation? It is as follows: “It is farther declared, that nothing in this Act shall prejudge his Majesty as to confiscations or other fines, as the punishment of crimes—or his Majesty, or any other lawful superior, of the casualties of superiority which may arise to them out of the tailzied estate; but these fines and casualties shall import no contravention of the irritant clause.” The words are very peculiar. It seems to me to be very clear, that the reservation is to secure the payment of all casualties out of the estate, if not paid by the individual, and that such shall not be held debts included in the prohibition and clauses authorized by the Act, for the purpose of protecting the estate against debts. To that object I think the clause is confined. It might have been contended that the casualties of superiors arising out of the estate, being also debts of the vassal, could no longer be enforced against the estate, which was protected .against all debts; and hence for that object, to preserve the superior's rights and the protecting clauses of the tailzie, I think the reservation was introduced. Of course, taking that view, I cannot concur in the explanation given of this clause by Lord Cuninghame. The pursuer's argument on this clause is founded on three views, 1 st, That superiors had the right previously, to refuse to receive as heirs, any whom the vassal chose to name; and hence, that the right to demand a composition, as from a singular successor, was to be reserved. 2 d, That the composition for the entry of a singular successor is a casualty of superiority. 3 d, That, by the above clause, a distinction, undefined indeed,, but fundamental, was intended to be drawn by implication between one class of substitutes and another, viz., those who arc also heirs-at-law, and those who are not—a distinction of which, certainly, there is no other trace or indication
in the statute, and which is only obtained by guess out of this reservation. These three views are all essential to the plea founded on this reservation. The pursuer's argument on this clause, I must repeat, admits that the statute gave the subjects right to destine their lands in any way they choose, and and to name or substitute heirs to themselves. That is admitted in the plea founded on the reservation; and hence it follows, that, if the reservation has not the effect contended for, in drawing such a remarkable and singular distinction between the substitutes of an entail, the pursuer's claim wholly fails.
In the first place, I hold it to be quite clear, that the composition demandable on the entry of a singular successor is not a casualty of superiority,and cannot by any use of legal phraseology that is at all correct, be included within the force remaining at that time. The casualties of superiority are enumerated by the text writers. They existed long before the Act 1469, c. 36. That act introduced the year's rent as a compensation for the loss of the existing vassal, and the introduction of a new party into the fee. But such a composition is not a casualty arising out of the estate—was never enumerated or accounted among the casualties of superiority, whatever looseness there may be in modern language on the subject—and in 1685, before the Act of Geo. II., could not have been used with reference to the obligation on superiors to receive singular successors on payment of a certain fee, for such obligation, generally speaking, did not then exist. There was no general right on the part of the singular successors, taking by procuratory to demand entry on payment of a composition. Hence, if the heir of entail could not claim entry as heir under the first part of the statute, he could not obtain an entry invito domino at all. But the reservation of the casualties, if he is heir, cannot apply to him, for the composition has no reference to him. This is the meaning of President Dundas's remark as to existing casualties
in Hailes's notes of the case of M'Kenzie. Accordingly, from the time that superiors first wished to raise the question under the Act 1685, as to their claim in the event of an heir of entail not being heir of line, the composition has never been acknowledged to be a casualty in any of the cases. This appears remarkably from the terms of the charter in the Westsheill case in 1720. See Session papers reprinted in Lord Hopetoun (the casualties are first reserved, and then the claim for a year's rent). Accordingly, in the case of Lockhart, one ground firmly taken by that great lawyer, Sir Thomas Miller, is, that the composition on entering a singular successor was not a casualty of superiority, but a separate right not arising out of the relation of superior and vassal, but given by statute as a compensation for an invasion of that right; while the superior's counsel tried to make out that the composition was the casualty of relief. The composition is not debitum fundi; the superior can neither enter into possession nor poind for it. It is only a personal claim. The clause of reservation, on the contrary, clearly is intended to save to the superior, as debts against which the estate was not to be protected by the entail, the proper casualties arising out of the tailzied estate. This is clearly the view taken of the matter by the annotator on Stair, and was the foundation of the judgment in the case of Lockhart.
At page 35 of the pursuer's case, it is broadly stated that Stair and all the authorities class composition among the casualties of superiority. This is a great mistake. I observed, that, curiously enough, no particular passages are given in the reference either to Stair, Erskine, or Bankton, but whole titles are referred to. And, accordingly, on examining these titles, all that can be said is, that composition is treated of by Stair and Bankton in the same long title, which also includes and treats of, but separately, the casualties of superiority. In Erskine it is not treated of at all in the title referred to. I was
much astonished at the reference to Stair, knowing that title, the 4th of the 2nd Book, most intimately. The examination of it leads necessarily to the very opposite result. Like every other part of that most methodical and systematic writer, the title must be considered attentively with reference to its plan. It commences, first, with the superior's own right of superiority, the proof thereof, and certain limitations thereof; then as to the relative position of the vassal, the effect of subinfeudation, and the duties of the vassal under the reddendo. Then it treats of the change of the vassal, and of the mode in which an entry may be forced upon the superior, at that time limited more than Lord Stair wished. And after having shown how a stranger may get an entry upon payment of the composition of a year's rent, the title then proceeds to take up the relative position of superior and vassal, after a vassal has been received, and in reference exclusively and solely to the entered vassal and his heirs. This distinct and separate portion of the title begins at section 18, and Lord Stair then treats of the proper casualties of superiority due by the entered vassal or his heirs. Then are all these specially treated of; and first, “of the most common casualty of superiority,” non-entry, its remedies, and its consequences; under which, in title 24, he explains the general declarator of non-entry for neglect, and the special declarator for contempt, and this is wholly applicable to the heirs of entered vassals, giving right to the retoured duties or to the full duties, according to circumstances. Then the relief is treated of, or, as he says, immediately subjoined to non-entry, being due to the superior by the vassal for entering him in the fee as the lawful successor of the vassal. Then, in section 32, he mentions what it is to be paid under the statutory composition, and points out how it differs from relief in several particulars. Then he resumes the casualties, and goes through them, and in no place does he ever confound the composition with the casualties. This might have been expected in so
accurate and clear a writer, the casualties being the rights arising by common law out of the relation of superior and vassal, composition being, as its term imports, a bonus or compensation to the superior for being obliged to do something directly against the original rights of superior and vassal, by an infringement of the same introduced by statute. In no one passage is the composition ever called a casualty or enumerated. The very same remarks may be made on the corresponding title, B. II. tit. 4, of Bankton, written on a more methodical plan than usual, and plainly on the model of Lord Stair's title. There is one passage in which the composition seems to be called a casualty in the sixth paragraph; but this is obviously loosely used, for he has a separate section in that title, beginning at article 13, with a distinct heading of the casualty of non-entry, another of relief; under which he certainly treats of composition, but in such a way as to show that, as it comes in place of relief, so it differs widely from the same; and he never terms it directly a casualty, though he specially calls the relief a casualty. He mentions the remarkable distinction, that the adjudger cannot be excluded from possession till he pay a composition and enter. The title of Erskine, B. II., tit. 5, is still more distinct. The casualties beginning at the 5th section, are all separately treated of in reference to the original and proper relation of superior and vassal, including recognition; and he then resumes the enumeration of them as modelled by our customs in the 29th section, viz. non-entry, relief, disclamation, purpresture, and liferent escheat. I particularly refer to the very accurate and distinct sections on non-entry and relief, perhaps the very best of Mr. Erskine's work. Take the definition of non-entry in the 29th section, as well as the full explanation of it into the 46th, inclusive. Take the definition of relief in the 47th section, and the explanations of it on to the 50th, inclusive, and it will be found, that under neither of these is there a word which brings in, as a casualty, the composition. Nay,
with such rigid accuracy and propriety does Mr. Erskine limit himself to the casualties when treating of these, that even under the section which mentions that the casualty of non-entry is excluded if sasine has been once given to a corporation, he does not allude to any arrangement as the condition of receiving them. Then he finishes the whole subject of casualties, and the composition is never mentioned at all. Accordingly, in the 6th title, Mr. Erskine begins separately to consider of the right which the vassal acquires by getting the feu, and of the extent and import of the grant made to him; then of the protection to his tenants; after which, forgetting rather his object, he wanders into the relative rights of landlord and vassal, which are treated of plainly out of place in the remainder of this title. Then, in the 7th section, he resumes the subject of the rights which the vassal acquires by getting the feu, and treats of the transmission of the right; and it is under this separate subject, and in a totally different title, that he treats of the question of composition, and of the effect of the Act 1685. What the pursuer means, then, by the positive reference to the 5th title of the 7th Book of Erskine I really cannot understand, for that title is wholly framed upon a plan which utterly excludes composition from the very notion of being a casualty—is limited exclusively to the old casualties—and in that title composition is not mentioned; while, on the other hand, the manner in which it is introduced in a subsequent title, draws the distinction even more distinctly than Lord Stair. I have stated my views on this point fully; for I have always held, that if the composition is not a casualty—it was not so held in 1685—then the claim of the superior, excluded by the first part of the statute, and not saved by the reservation, is clearly repugnant to the enactments of that statute. In the second place, I apprehend that the clause is not such as would have been introduced if the object had been that for which the pursuer contends. I think that the clause would have expressly referred to the case of the heir of
tailzie not being an heir at law, considering that the former part of the statute bestowed the character of heir equally on all substitutes; and I do think we are warranted to hold that so plain and important a limitation on the power given to substitute heirs was to be left to implication, and implication also out of a clause which, in its obvious purpose, has reference to the effects of the protection of the estate against debts, if the casualties of superiority had not been specially mentioned. The object of the clause is on that view clearly satisfied and exhausted. In the view then, which I take of this question, I think it is decided by the operation of the Act 1685.
In this view of the matter I am confirmed by a careful examination of the case of Lockhart, which, at all events, I regard as a decision on the point, and a decision of the highest authority, pronounced, as President Dundas says, (Lord Advocate, and in the highest practice at its date,) with great unanimity in the Notes by Hailes of the case of Mackenzie. That decision was understood at the time to decide the question. Erskine, the Professor of Scots Law, says so expressly. Mr. Erskine's authority is not confined to the passage noticed by Lord Fullerton, (though it certainly is not the less authoritative that it rests on a decision of the Court). He gives his opinion distinctly in the 6th section of 7th title of Book 2, on the general point as to the effect of the Act 1685, to the same purport; and then, in a separate passage, he mentions the case of Lockhart as a clear authority on the point that a substitute has all the rights of the character of heir.
The decision, then, was held to be of great and direct authority at the time. It is said, in one of the opinions, that this decision has been declared by the Court since not to be good authority. I know not where it was so declared. The point was again mooted in Mackenzie. But in that case the vassal expressly said, as he was not a stranger, ‘the superior,’ (I quote the words of his paper) “was welcome to a claim of reservation;”
and, on Lord Braxfield's suggestion, that was adopted, one Judge only, by Hailes's Notes, not questioning the authority of the case of Lockhart, (for, in Covington's first opinion, he agrees with it,) but saying that one decision, to be sure, will not make law, so as to bar reconsideration of the point. Again, in the case of the Duke of Argyle, the vassal offered expressly a clause of reservation, not being the party struck at by the claim. These two cases do not in any degree appear to me to invalidate Lockhart v. Denham. They only show what harm is done by attempts to avoid the decision of a point when once raised. But what is the pursuer's claim? It is, that every heir of tailzie must pay who is not heir of line. The case of Lord Hopetoun, as I understand, lays down expressly at least this, that the superior has no such right, and that an heir male must be entered, though there are numerous heirs of line excluded altogether, or postponed. Hence the plea fails to the extent stated, and to the extent of the reservation in the charter. But if there is any principle at all in the point, the claim ought not to be made applicable to the heir of line of the vassal last entered, but to a party not the heir of the investiture prior to the tailzie. This was the way the reservation was put in Mackenzie v. M. by the express terms of the judgment (Mor. Dy. 15053),—a very remarkable fact not sufficiently noticed. But this is a wholly different point altogether. Such a reservation raises the question, whether the superior can be obliged to receive a new set of heirs, even of the body, e.g. heirs male, if heirs of line were heirs by the prior investiture, or goes on some notion of the loss of compositions by the prohibitions against sales? The reservation, again, in the case of the Duke of Argyle, was directed to the succession of a party who was not heir of line to the person last entered and infeft. These two reservations are accordingly different, and would depend on totally different views of the law. No two views can be more different. The cases were arranged in a way to save the discussion
of the question. But if the Court is thought to have taken in each the view of the subject to which the terms of the several reservations point, then it is plain that the views were fundamentally different, yet these two cases are always mentioned as going on the same ground. I hold that the Court gave no opinion in either. The pursuer has chosen the latter form of reservation. Then he must maintain, contrary to my view of the Statute 1685, that he can deny to certain classes of substitutes, named by the entail and in the investiture, the character of heir. That is the true meaning of the ratio of the Court in the case of Lockhart, for no heir of provision can be a singular successor. And here I must observe, that great weight is due to an argument in the able paper for the vassal, (Sir. J. Denham v. Lockhart,) by Sir Thomas Miller to this effect. This question does not occur in an original grant of feu. If a superior, when he first separates out his estate by feuing, shall stipulate that every heir of entail, to be afterwards appointed, shall enter as a singular successor, that, as a part of the superior's property reserved by the original contract, first feuing out the land, might be effectual as much as a clause tripling the feu duty, or stipulating for two years' rent on the entry of every singular successor and the like, on the ground of being an express compact, by which alone the feu was ever separated from the dominium directum. But when a feu is once granted without any such matter of special contract and condition, not so restrained by any condition when the feu is created, and a vassal exercises his power to substitute heirs in his tailzie, is a substitute in a deed of provision so executed by a vassal, not an heir, as much as if the grant had been at first to A. without mention of heirs, and an entry had been claimed by the heir of line? I own in that distinction taken by Sir T. Miller, I think there is great weight.
Holding that the question in no degree depends on the claim for entry being by a substitute under a strict entail, in
respect of the operation of the fetters, the next point is, what, then, is really the pursuer's plea? I apprehend it comes to this, that every heir of provision (no matter under what deed) who is not heir-of-line, is a singular successor. No doubt, the question has been raised in cases of entail, because the motive and interest of the superior is greater in bringing forward the claim in cases of entail; and some advantage is supposed to be derived to the superior from the alleged hardship to him of the entail. But the claim is equally applicable to every heir of provision. On that view of the case, it is now admitted that an heir-male is not a singular successor, according to the unanimous decision in Hopetoun. It is said that, in the opinion of the consulted Judges in that case, the Court held as a ground of judgment, that the vassal's power of nomination and selection extended only to heirs at law. Two of the Judges who signed that opinion entirely disclaim any such view, and so, I understand, does one of your Lordships. Again, if that expression in the opinion was deliberately considered by all as an opinion on the limitation of the vassal's power of nomination, I have three remarks to make, 1 st, It was entirely, obiter, for it was in no degree necessary for the case of Lord Hopetoun, who was only an heir-male of the body either of the first vassal, or of the assignee before infeftment; 2 d, The parties did not understand the opinions to imply of necessity that every substitute who was not heir-at-law must pay a compensation, for all that the Duke of Hamilton (after the decision) asked in the Outer-House, was a clause of reservation, which was also to reserve all objection to the claim, if ever made against a stranger; and 3 d, The passages in the opinion in Lord Hopetoun are, with deference, very unfortunately expressed, if intended to be a definition, as it is now said of the law, for it is not stated whether the limitation of the vassal's power of nomination is confined to selection among the heirs of the body, or among all heirs-at-law, however remote. The opinion speaks of his heirs-at-law
generally, or natural heirs. That would seem to apply to all relatives by affinity. Well, then, how far does it go? May a man call his brother before his sons or his daughters, or a hundredth cousin living, say the chief of a clan, before his daughters or his sons? or (to take the Seaforth entail,) “call the descendant of Colin Fitzgerald, my progenitor, who lived in the reign of Alexander the Third,” before his sons and daughters. The opinion, which is now said to be a definition ex proposito of the law, really leaves the matter as to heirs-at-law wholly loose; or, if it is intended to mean all his heirs-at-law, and any order among them he chooses, then it must go to the length that a twentieth cousin or hundredth may be called in before a man's own sons and daughters. I own I do not know what was intended to be in view by that alleged definition, neither do any of the three Judges, who allude to this point, explain this, unless it be Lord Fullerton, who seems to go the length I have now stated. But on what ground can it be truly held that the superior cannot object (laying aside the Act 1685) to the entry, say of a fiftieth cousin, in preference to a son or daughter? Is that party not in substance a complete stranger, though in name a cousin? The contrary is carrying the notion of Scotch cousins rather far. I can see no other reason, except that the superior has no delectus at all in those whom the vassal is to name as his heirs. When feus reverted to the superior on the failure of heirs, the superior had a clear right to limit the heirs to be included in the grant, and he had a delectus as to those by whom service was to be rendered, and his lands held in return for fidelity to the liege lord. But even then it was not blood relationship which constituted a party heir. It was then as now, the choice and designation of the party as heir-of-provision in the deed settled between superior and vassal. The very principle of delectus originally imports that. But a feu of land is now a sale, with certain reserved rights. When, therefore, a person has granted a feu, and the vassal
sells, the purchaser must pay, as a singular successor, for an entry; but I am of opinion that the entry must be given in favour of any successors he names as heirs, and who are to take by succession from him under his deed. So far from concurring in the doctrine that blood relationship is the legal quality descriptive of heirs, I am of opinion that it is the nomination and substitution of parties in the deed of the person whose succession is to be regulated, and who has right to the feu, and that whoever appears before the superior nominated and substituted by a proper deed to the succession, is an heir in every sense of the term. In short, the right of succession under the deed, and not blood relationship at all, is the only quality that was ever looked to in the law, at any period.
Either the vassal has the right to regulate his own succession, or he has not. If he has not, then every heir-male not also of line ought to pay as a singular successor. The contrary is found, and found, I understand, to the extent of the most sweeping preference of collateral to heirs of the body. If the vassal has not full right to regulate his succession, how happens it that in no instance whatever of a stranger succeeding under a simple destination, was a claim for a composition ever dreamt of or preferred? The point never even was mooted except as to a tailzied destination, and palpably from the influence of some notion that the fetters of the entail aided the claim. But if the vassal generally has the power to regulate the succession to the feu, it seems to me to be only stating the same proposition, in other words, (for they seem to be convertible,) when I say that he has right to name those who are to succeed. Observe, all take as heirs under a deed of succession. Where a party was named by the superior's consent, the only character which the law ever looked to at any time, was the nomination in the investiture, that made him heir equally whether he had the additional character of blood relationship or not,—that an heir of provision is a disponee or singular successor merely, I consider
to be a contradiction in terms, or a legal impossibility. Now, when a vassal came to have the full right of feu, without reversion to the superior, and the right, generally speaking, to regulate the succession in that feu, I am of opinion that substitution in his deed gives the character of heir, which the superior cannot refuse.
Farther, the reservation in this case is a very singular one, for it seems to me to be founded on no clear principle whatever. It is to claim from any party not heir of line of the person last infeft under that grant. But all the heirs under a branch of substitution to A. B., a stranger in blood to the original granter, are equally strangers in blood to the granter with A. B. himself:
Then, on what ground is a distinction taken between A. B., the present Mr. Ewart, and his heirs of line—all being equally strangers to the granter or to Lord Balgray. It seems to be thought that each substitute who begins a new branch of the substitution, is to appear like a purchaser, and to get a new grant for himself and his heirs. That view is manifestly repugnant to the Statute 1685, as to the power to substitute heirs. But how is he a purchaser? He can enter only by service. The last vassal got no benefit by his succession, and he has no character of a singular successor whatever. Nay, he is heir of the granter in every sense of the term,—fully as much as Lord Balgray—and incurs representation ad valorem to him. But, farther, the heir of tailzie who is so to pay, has no power to get an entry including all his heirs. Nay, his heirs of line may be wholly excluded, and all his collaterals, if the tailzie is limited to the heirs-male of his body. So he would have to pay without the benefit of a general grant, and would be worse off than a common purchaser; and the result will be that the right of superiors are infinitely improved by entails, for they will get a composition on every new substitution, and for a far more limited class of heirs than at common law. This certainly would be a whimsical issue of the effect of entails on the situation
of superiors. But it is said it is only his heirs of line who can be admitted. Then the reservation is clearly against law, and fails beyond all question according to the case of Hopetoun.
It seems to be a point not undeserving of grave consideration, whether, when the reserved claim fails, as it confessedly does in the opinion of the whole Court, and is bad according to the terms and object of the reservation, the superior is entitled to maintain that he can form and mould that clause into a different reservation, applicable to a totally different case. He has no claims because the succession has opened to one who is not the heir of line of the vassal last entered. On that ground he has no claim. Every heir male, if the destination was broad enough, in whatever order, however capricious, could enter. Now, if the ground of exclusion is bad in law, it is matter of grave doubt whether the clause can be carved into a different and special reservation, not founded on the principles stated in the clause, but on another and separate point. I am unwilling, however, at this stage of the case, to press a point not started by the defender.
I am more anxious earnestly to request the attention of your Lordships to the distinction which seems to be taken between the first party in a new substitution, and the heirs under that clause of substitution. For instance, turn to record, p. 20, “whom failing, to Robert Ewart, grandson of Dr. Robert Ewart, physician in Jamaica, my brother, and the heirs-male lawfully to be procreated of the body of the said Robert Ewart, my grandnephew.” Take the substitution to the defender. This might have included those who were not heirs to Robert Ewart. But even with Robert Ewart and his heirs-male, what difference is there between the character in which Robert Ewart presents himself and his heirs-male? I can see none. There may be no blood relationship to the original granter. Each takes equally by service. Each takes by force
of the nomination in the deed. Each takes independent of the other. Each takes as heir of provision, and as heir of provision only. Accordingly, in the only opinion which humbly appears to me to approach this very difficult point in the argument of the pursuer, this is admitted in one passage, and the person first named in a new branch of substitution is put precisely on the same footing with all those called in that substitution. For, after disclaiming very anxiously the doctrine of Lord Jeffrey as to blood relationship, Lord Fullerton not only reverts to it, but follows it out to the extent of putting every substitution called upon the same footing, whether he is the first of a new branch or not. Now, upon that principle, it is quite plain each substitute in a new branch must be viewed as a disponee or singular successor, if he has not in him the separate quality of blood relationship as much as the first member, called nominatim of that new branch. Lord Fullerton here holds that you must only look to relationship to the original granter. But the pursuer's claim is rested upon the different ground, that the defender is not the heir of Lord Balgray. But, with great deference, the principle stated, if I understand another passage, is not adhered to, and it seems to be thought that the claim opens only when the succession devolves upon a new branch of substitution, giving a right to a composition only from the first substitute in that new branch,—a view which draws a second distinction between substitutes, not consistent, as I conceive, with the Act 1685. If this means that each new substitute is to pay upon the ground of being a disponee, taking by the act of the original vassal, then it is quite consistent, and on the same principle on which Robert Ewart pays, so will each of his heirs-male. Is that the principle which is to be laid down? In that case, again, superiors will have got a great benefit by entails, for every substitute who is not the heir of line of the original vassal must pay as a disponee, though he succeeds his own father, and most consistently and necessarily, upon any view I have been
able to take of the general argument of the superiors. For what difference is there between the case of A. B. in a new substitution in an entail, if he is to be viewed as a disponee, because he takes by the act of the original vassal, and the case of A. B.'s sons. They are disponees as much, beyond all doubt, as A. B., on the principle stated by Lord Fullerton, and if the principle is to be adopted, it must be carried to that length. I have ventured to notice this point in the opinions of my brethren, for I candidly own that, if these opinions had ruled, I could not as yet have been able to propose any Interlocutor to your Lordships, not knowing whether only the first substitute of a new branch of the substitution, or each heir in each branch must pay, if not heir of line. But how does the general view as to the substitute being a stranger, if he could not take otherwise by service to the entailer, support the claim of the present pursuer? He rejects the principle of relationship to the original vassal, and he claims because the defender is not the heir-of-line of Lord Balgray. Now, on what ground is that claim founded? Lord Balgray was not the maker of the entail. His act did not call Mr. Ewart. He got no benefit, surely, by the destination in favour of Mr. Ewart; and I cannot see how the reasoning here applies at all. Farther, Mr. Ewart is asking for no new grant. He does not ask for the admission of any heirs of his own; he cannot exclude them; he cannot benefit them. His entry gives them no right; on the contrary, it only postpones their succession. Then, if he is to pay because not a relation of Lord Balgray, on what ground are the heirs-male of his body not equally to pay? They do not succeed by his act or as his heir; they succeed because they are so called descriptive, to be sure, but, as Lord Fullerton says, by the act of the maker of the entail, and any claim competent against Robert Ewart ought to apply equally to the heirs-male of his body. According to one view of the opinions they would pay, and I see no intelligible principle on which they could be exempted, for Mr.
Ewart asks nothing for them, and can give them nothing by his entry.
Such are the results and the inconsistent operation of the principles of the superior. Two remarks only in conclusion; 1. It appears to me that there is some error in the inferences drawn from the statutes respecting the entry of adjudgers, and apprisers, and latterly purchasers. These were cases of compulsory charges of the vassal invito domino, often against his interest as superior, against the bargain and contract subsisting between superior and vassal, and against the fundamental obligation on the vassal of keeping the feu. Hence, as the superior could not be called upon to change the investiture once constituted, a bonus was to be given to him. But I do not think that these statutes, and the rights which they recognize in superiors, bear very materially, if at all, on the question as to the vassal's power (having paid for his entry) to name his own heirs in the investiture that is to be completed, and by which he proposes to hold the feu without the power of sale. 2. I am surprised to find reference made to practice, which, however, is said only to exist to the extent of requiring reservations when entails are executed. No one need object to that, for the effect of such was future and undecided. But the important practice to look to is this. Is there a single case of any superior demanding a composition when a stranger succeeds under a fee-simple destination of an estate? Neither has notice been taken of the important practice of the prime superior of the whole land in the country, and attention has not been paid to the alarming claims which could open to the Crown against the subjects. On the argument of the superior, the Crown would have a claim for a year's rent in every case in which the heir, asking for an entry, had no other character than that of heir of provision, whether in a fee simple, or tailzied destination. It is a great mistake to suppose that the rights of the Crown were not very deliberately and thoroughly investigated, after the institution of
the new Court of Exchequer on the Union. On the contrary, the opinions in the State Paper Office, and the Advocates' Library, by the Scotch Crown Counsel, show that every point was most narrowly and vigilantly looked into. It is stated in the case of Lockhart v. Denham, and I believe is the fact, that the Crown first raised the question after the Union, that a superior was not bound to receive a corporation. Many instances might be given of the vigilance with which all questions, respecting the rights of the Crown, were considered after the Union. Yet in no single instance has a composition ever been asked from any party named as heir or substitute by the vassal, that vassal having paid his own composition if a stranger. On the contrary, one composition, and one composition only, has hitherto enabled the Crown vassals, in obtaining right to their lands, to name any heirs of provision or tailzie they chose, and from no heir of tailzie has a composition ever been demanded, at least up to the date when I was a law officer of the Crown. On this point I have a distinct memorandum from the office of Presenter of Signatures, obtained in 1829, when I was Solicitor-General. I must say that I attach the greatest importance to this practice on the part of the Crown. They have never even attempted, generally speaking, to reserve the claim for composition, although regularly exacted in every case of a proper stranger not entering as substitute, but as purchaser. It would be with great reluctance that I should feel constrained to open up to the Crown a new claim that would operate so severely and so extensively on the principles contended for by the pursuer.
On the whole, I am of opinion that the claim of the superior to one year's rent of the lands in question should be repelled, being the form of the Interlocutor in the case of Lord Hopetoun, and the cause remitted to the Lord Ordinary to proceed farther as he shall deem just. Whether a ratio should be added or not, in this case, may be a matter of
question. If so, and I rather think the ground of judgment should be stated, I would propose that the finding should be, that “the defender, being an heir substituted in the deed granted by the vassal, and in the investiture for which a composition was previously paid, is entitled to be entered as an heir, on payment of the casualty of relief.”
Lord Medwyn.—This is certainly a very nice and difficult question. The Court, ever since the case of Denham, 1760, have waived the determination of it, and the diversity of opinion among bur brethren, now that it comes before us for decision, shows its difficulty. I have given the case the most careful consideration, more especially since I have had the benefit of the opinions of my brethren; and the opinion I have formed I now submit with all deference to that delivered by your Lordship.
I consider this declarator as the proper mode of trying the question, upon what terms the defender is to obtain an entry to the lands of Allershaw; neither do I think it of any importance, in this case, that he is called into process as heir of entail. The question is, since the defender is unquestionably not the heir of the person last infeft, but is an heir of provision merely, is the composition of a year's rent due for an entry, or is he to be received simply for a duplicand of the feu-duty?
When the first heir of entail, who was not heir of line of the maker, obtained an entry and was infeft under the entail, he paid a year's rent to the superior, and a clause was inserted, that the superior was not to be excluded from any claim there might be at law for a full year's rent, when the future heirs of entail shall happen not to be heirs of line of the “person last entered and infeft.” The question, then, is open, and now comes for decision, as the defender is not heir of line but heir of provision only of Lord Balgray, the heir last entered under the composition paid; it is of no consequence whether it be
under a strict entail or a simple destination. It will occur when the heir of provision comes to enter, although, by the unfettered nature of the property, he might have been excluded by the prior heir having changed the destination.
The question seems to me to depend much on the effect which the Act 1685 had on the right of superiors previously existing, which necessarily involves the inquiry as to how these rights stood at that period. “By the genuine principles of the feudal system, no vassal had a power to transfer the right of his feu to another without the superior's consent, and the superior was not bound to receive any person in the lands other than the heirs to whom he himself had limited the descent by the investiture, though the greatest sum should have been offered him in the name of entry.” And he quotes the case of Cleland, 24th February, 1685, for this,—decided the very same year in which the act concerning tailzies was passed,— where it was held that it was arbitrary for a superior to receive, or not receive, a vassal. An important right was originally connected with this, that, when the heirs of the investiture failed, the superior succeeded as ultimus hæres. There is a case in Balfour, p. 484, c. 5, to this effect in 1506, where the grant had been to a man and the heirs-male of his body; on the failure of these it was held that the superior was entitled to take them even from the heirs-female of his body. See also Balfour, p. 232, c. 38; Craig, B. 2, D. 17,§. 17, mentions this also as the rights of the superior, but says that some thought the Crown should succeed. The opinion in favour of the Sovereign gained ground, so that in Dirleton, p. 119, he resolved the question by a reasonable distinction, that if the fee be limited, as to heirs-male, on their failure the superior should have right; but if the grant be to heirs whatsoever the fee is simple, and the granter, having given every right away, the superior had reserved nothing, and can pretend no right to the same.
But this distinction was not followed out, and the right of the Sovereign prevailed, and was enforced. In 1680, Fountainhall, Vol. I, p. 97, mentions two cases where the Crown, as ultimus hæres, excluded, in the one case, daughters, and in the other, a brother; and in Tenant July 1688, “The Lords found, that, either in an original feu or posterior infeftment of tailzie, where the provision is in favour of heirs male, and not the heirs whatsomever, that the heir of line cannot succeed, but that the right does devolve on the King as ultimus hæres.”Now, although the superior's right was here abridged, yet the donator of the Crown necessarily could obtain an entry on no other terms than any other singular successor. The donator is liable for the debts of the last possessor coming in place of the Crown, who, as Dirleton says, cannot succeed but by way of representation and as ultimus hæres; and he also must be liable in a composition like any other grantee. It would be different in the case of forfeiture for treason. A donator, on forfeiture, does not pay a composition for an entry. Blair, 1680, p. 15,045; Duke of Gordon, 1771, p. 15,050. The Sovereign did not take as an heir but by escheat, and therefore was not liable for the rebel's debts till 1690, c. 33.
The superior's right to refuse an entry to a stranger came to be abridged so early as the fifteenth century, for by 1469, c. 36, superiors were forced to receive creditors apprisers as vassals on payment of one year's rent of the lands; and although this was only intended for the case of judicial sales at the instance of creditors, and for their behoof, yet it came to be used as a device to compel the entry of a purchaser, by which, as Craig says, Lib. 3, D. 1, § 13, this right of refusal “ hodie pæne subvertitur magno dominorum damno;” and yet he never heard such apprisings set aside, sub prætextu aut collusionis aut simulationis. Superiors, it may be presumed, were generally satisfied with obtaining a year's rent for the transference,
and this came to be fixed as the price for foregoing his right to refuse an entry, which might thus have been enforced upon them circuitously, more especially after the example set by the Sovereign; for the Act 1578, c. 66, mentions, that, by several acts of the Privy Council, purchasers were secure of being received as vassals by the Crown upon their reasonable expenses, i. e., on a composition to be paid to the Treasury, which practice fixed, at a moderate rate, one-sixth of the valued rent. The favourable manner in which the Sovereign has always treated vassals as to their entry, make's the circumstance that the Crown makes no such claim as the superior here does, which your Lordship says is the case, of less weight than it might otherwise have. A subject superior is entitled to and exacts a year's rent from a purchaser, although the Crown only claims a small portion of the valued rent. That, then, will not affect an ordinary superior's rights.
By 1669, c. 18, adjudications were put on the same footing as comprisings with regard to payment of a year's rent, so that the superiors of lands, annual rents, and others adjudged, shall not be holden to grant any charter for infefting the adjudger, till such time as he be paid and satisfied of the year's rent of the lands and others adjudged; for although the Act 1621 had treated of adjudications against the heir lying out unentered, following out the Act 1540, c. 106, when a creditor, either his own or his ancestor's, wished to pursue for his debt; and although custom had also introduced adjudications in implement of disposition and obligements to infeft, yet to these the payment of a year's rent had not been extended.
When adjudications were substituted for apprisings by 1672, c. 19, the payment of a year's rent was still the condition; and finally, purchasers at a judicial sale were, by 1681, c. 17, entitled to an entry on the same terms.
Now, these relaxations of the superior's right were all, except the last, in favour of creditors, and the last, which was in
favour of purchasers, was on account of its bearing on the interest of creditors. It was to give them payment of their debts that these statutory regulations were introduced. No change was made in the case of an ordinary purchaser, still less of a proprietor wishing to make a tailzie of his lands, cutting off the right line of heirs. These statutes, accordingly, speak only of the superior receiving the appriser, or adjudger, or purchaser at the judicial sale, and never even mention heirs, far less heirs of provision. This would have been going beyond the object in view, which was simply to prevent the privilege of the superior absolutely to refuse a new vassal standing in the way of a creditor obtaining payment of his debt. If he wished to acquire the lands themselves, and destine them to heirs different from his heirs of line, I see no provision in any of these statutes which could compel the superior to receive a series of strangers substituted to him. This, it appears, must have been still the subject of treaty with the superior.
I am quite aware that it was common for proprietors of land to tailzie their estates, sometimes more strictly and sometimes less so, by simple destination, with prohibitions, and finally, with irritant clauses, but they were not favourites of the law, and with great difficulty sanctioned. That this was so, is apparent from our Statute-Book. Thus James III., by 1476, c. 70, revokes all “Tailzies maid in his tender age fra the richteous aires;” and Craig, Lib. 2, D. 16, § 12, says, that taillies confirmed by subject superiors when minors, might be reduced by them. James IV., in like manner, by 1493, c. 51, revokes “all tailzies maid fra the aires general to the aires maill of anie landes in our realm,” plainly implying that scarcely any other tailzie was then known; and in the revocation by James VI., by 1587, c. 31, of all tailzies made by him in his minority upon resignations, from the heirs general to the heirs male, ‘against the law and gude conscience;’ an exception
is made as to conquest “because it is not against conscience that onie person quho acquires the richt of onie heritable landes, may take the same to sik aires as he pleises.” This merely imports that a person acquiring lands might make them to descend to heirs male, or perhaps stranger heirs, without being held to proceed against good conscience, but it by no means imports that the superior must receive these extraneous heirs, as he must the acquirer and his heirs of line. It is true, Craig, Lib. 2, D. 1, § 13, maintains that such entails are neither against law nor conscience, and mentions that they were supported by the Court in the case of M'Lachlan v. Lamont, 1st March, 1548, and accordingly this decision is reported by Balfour, p. 173, as the first case supporting that view of the law, but in the very next year an opposite judgment is given, p. 174, c. 3, and from a case also noticed by Balfour, decided a few years afterwards, where the term heirs of tailzie in general was extended to all such, as well in the right line descending, as in side line or collateral— Campbell v. Grahame, 18th June, 1566, p. 174, I infer that these heirs of tailzie were heirs male, and certainly could not be stranger heirs. Craig distinctly restricts the term heirs of tailzie to heirs male, to the exclusion of heirs female of the maker. Accordingly, one of the reasons he gives (L. 2, D. 16, § 20) why tailzies were not encouraged by superiors, (and he says, “Tailliari feuda ex jure nostro non possunt, nisi ex consensu domini sui superioris,” L. 2, D. 3, § 43; and Stair lays down the same doctrine, that “a tailzie must be constituted by the superiors) is, that it excludes females cum majores multas commoditates proveneant ex hærede fœmina, quam masculo.” This was no doubt the first form of entails; but when more distant relations came to be introduced into a substitution, Craig denominates them heirs of provision, giving them a new designation, as now first known to the law, in consequence of this enlarged exercise of the power of entailing.
But it may be that the form of apprising came at a later period, and nearer the date of the Act 1685, to be used not merely to procure an entry to a purchaser and his heirs or his heirs male, but to strangers in their character of heirs of provision. But I see no proof of this, and I think there is no probability of it. When Craig complains, that under the Act 1469, purchasers, not creditors merely, compelled the superior to receive them on payment of a year's rent, and that he had never seen the attempt to resist this successful, I think it cannot be supposed that this was anything else than the purchaser assuming the character of a creditor, but without any substitution of extraneous heirs. I do not believe that such substitutions were very common at that time; I rather suppose I may say that they were not; and I can scarcely doubt that, although the courts of law were willing to abridge the rights of superiors, so as to admit a purchaser's entry on the same terms as if he were a creditor, they would have scrupled to allow of a substitution of stranger heirs, and compel the superior also to receive them by assuming a character totally alien from his true one, in order to accomplish such an object, at a time when the state of the country and of the law made so very intimate a connection between superior and vassal, and when it was almost essential that the superior should have a delectus personæ in his vassal.
The opinion of Stair on this point is noticed on both sides. One thing is very clear, that in neither of the passages is the learned author treating of the point at present in dispute—the composition for an entry. In the first passage referred to, (B. ii. t. iii. § 43,) he states it as the law, when his first edition was written prior to 1685, that tailzies must be constituted by the superior, and that he is not bound to alter the tenor of an investiture, except where it is provided by law, whereby he is necessitated to receive apprisers and adjudgers. This of course would be presumed to include only these creditors themselves
and their heirs, as all that was necessary for the object in view; and so it is, for Stair goes on thus: “so neither in that case is he obliged to constitute a tailzie, but only to receive the appriser or the adjudger and their heirs whatsoever.” This is a very distinct expression of opinion; and I cannot help thinking, that when public opinion induced the courts of law to sanction the extension of the form of apprising to the case of purchasers, it would not go beyond the heirs whatsoever or possibly heirs male, and would not compel the superior to receive strangers not of his own selection for vassals, and to the loss of a composition for an entry. One case mentioned by Stair, which immediately follows the words last quoted, fortifies this view; for the superior is only to receive the adjudger and his heirs,—“unless the debt and decreet whereon the same proceeded, be conceived in favour of heirs of tailzie, in which case the apprising or adjudication, and infeftment thereupon, must be conform, unless it be otherwise by consent of parties.” Certainly an adjudication on a debt must be in conformity with the destination in the bond constituting the debt, and unless by mutual consent this be altered, the decree must pass in these terms. This is merely following out the benefit conferred on a creditor, in order to recover payment from the lands of his debtor, for the remedy would have been incomplete if adjudication could not pass on a taillied bond for borrowed money: But it would not be often that securities for money would be taken in that form so as to bring in a stranger, instead of simply to the creditor, his heirs, and executors; and to admit it in such a case is a very different matter indeed from allowing a proprietor to make an entail of his estate to a series of stranger substitutes, and adjudge either upon a bond or obligement to convey so framed. As yet Stair most clearly is treating of the case of a real creditor for borrowed money adjudging; and I farther think he is treating of the rights of a proper creditor, when he goes on to consider the case where the
apprising or adjudication has been on a bond to heirs, and a tailzied infeftment is wished; for he says, “or at least if the appriser or adjudger crave the infeftment to himself and the heirs of tailzie, the superior ought not to refuse it.” He is certainly not bound to do more than allow the lands to be adjudged in terms of the bond; but the reason why he should not refuse to give infeftment in favour of heirs of tailzie, is not that he has no right to do so, but this—“for the apprising or adjudication being assigned to a stranger, he behoved to be infeft, much more the alteration of heirs is allowable.” It is then only an alteration of heirs that is in view, as instead of heirs whatsoever, destining the lands perhaps to heirs male, not the substitution of strangers, and the reason given shows that, even as to heirs, it is only one alteration of heirs that is contemplated, not a destination including as many strangers to himself and to each other, as the maker of the deed may choose. For if an adjudication be assigned before infeftment to a stranger, the stranger must be infeft. But he will pay a composition just as the adjudger would have done. Nay, there is a case where an adjudger assigned to an assignee, and he again, without taking infeftment to another, and the superior was obliged to receive this second assignee, receiving only a single composition—(Colmslie, 12th March, 1629, p. 200). But this only introduces the first stranger into the investiture, it goes no way to support the notion that any number of stranger substitutes might be introduced into a taillie, and the superior compelled to receive them on payment of a single composition, still less that a proprietor might taillie on himself or his heirs male, whom failing strangers, and could force the superior by adjudication to grant him an investiture in these terms, when of course he must be received upon payment of relief as an heir only. Nay, I think I may draw this inference from it, that it could not then be held that an appriser even, far less a purchaser, under the form of an apprising, could compel the superior
to give an investiture to him, and to a series of strangers substitutes for a single year's composition, otherwise such a claim never would have been made, that each assignee before infeftment must pay composition. This was plainly viewed as defeating a right to refuse such substitutes without paying a composition. But the claim was not sustained upon a principle quite apart from admitting the right of an appriser to force the superior to receive any heirs of provision the appriser chose to offer as vassals.
It will be observed, that I use the term taillie in its original meaning, whether protected by irritant clauses or not. If they be so protected, this gives the superior a stronger interest to enforce his right, but it arises under the other form also.
It is fit, too, that I should notice that, after the passing of the Act 1685, Stair made no change in the above passage of his work. He does not seem to think that the Act in this respect at all abridged the right of the superior. How easy and how natural would it have been for him to have noticed this, if it really had been his view of the Act. But it must not be forgotten, that if a purchaser did wish to destine his lands to a series of stranger heirs, there was a privilege which the superior had which would effectually prevent him under the guise of an adjudger from forcing upon him strangers as his vassals, so that it must still have been matter of treaty between them. For the Act as to apprisings authorized the superior to acquire the subject apprised by making payment of the debt, and the same privilege was extended to an adjudger in the case of Scot, 10th June, 1671, where it was farther found that it was redeemable from the superior by the vassal within the legal, without paying a year's entry, because the vassal was thus not changed. ( Stair, B. 2. T. 4. § 12.) 1 may notice, in passing, that the same privilege was not given to the superior in the case of a judicial sale. (Kennedy, 6th February, 1695.) Fountainhall
says, “the Lords unanimously found the superior's right of redeeming took no place in their sales.”
As to the other passage referred to from Stair, § 59, it seems to me to advert merely to this, that if a superior does not accept of resignation voluntarily, he will be obliged to admit the adjudger in implement; but it says nothing as to stranger heirs being forced on the superior by this form of proceeding. I wish finally to remark, that, in neither of the cases last mentioned, is there the least appearance that the destination was other than to the adjudger and his heirs; nor can I discover in our books a single instance of an adjudger forcing an entry for stranger heirs. There are abundance of instances in the Dictionary v. Superior and Vassal, of adjudgers claiming an entry, and also of superiors suspending such a charge on various grounds, but not a single instance on the ground that it was to introduce stranger heirs. All bear that the entry is for the adjudger simply; which, I must say, satisfies me that no greater relaxation of the superior's right to refuse a change of vassals was sanctioned beyond the statutory enactment compelling him to receive an appriser or adjudger. I cannot hold that it was so extended in practice, that it was vain for even the most determined stickler for a superior's privileges to urge this plea. I think the legitimate conclusion from the absence of decided cases, is, that no adjudger believed the Court would sustain such a claim, and therefore, that, as in the case of a voluntary purchaser, he knew he must transact with the superior, if he wished the subject adjudged to pass to stranger heirs, and that he could only acquire this privilege by treaty with the superior.
Upon the whole, then, I do not see that it has been made out that a superior was bound, prior to 1685, in granting an investiture to an adjudger, or to a purchaser in the form of an adjudger, to go beyond the ordinary style to him and his
heirs male or heirs of line, but not to strangers whom he might wish to substitute; and as the superior could always exclude him by taking the adjudication to himself, this was an additional power he had to make him purchase a destination such as he wished, by paying what could only be matter of treaty and contract between them.
The Act 1685 was then passed, and as it is the main ground of the vassal's plea in this case, it is of great importance to attend to its object and its enactments for carrying out that object. I presume it will not be disputed, that its sole object was to legalise the irritant clauses of an entail so as to make them effectual against creditors and purchasers, and to do this in such a way as to protect the interest of future heirs of entail, at the same time doing as little injury as possible to any other members of the community. Hence when the Legislature enacted, that it should be lawful to tailzie estates and to substitute heirs in their tailzies, with such provisions as they think fit, and to affect them with irritant and resolutive clauses, it was necessary to provide some mode of informing the public of what tailzies were allowed, that creditors and purchasers might know they were dealing with a person who could not bind his estate. This was done by production of the entail to the Court of Session, and its insertion in the Register of Tailzies. In case it might be thought that, by implication, the superior's rights might be affected, which was the only other interest to be attended to, this was done by an express reservation thrown in at the close of the act, that nothing in this act shall prejudge “his Majesty or any other lawful superior, of the casualties of superiority which arise to them out of the tailzied estate.” I must say, this is just what I would have expected from the aristocratic Parliament which sanctioned tailzies. I never could have conceived that they would have made so total a change on the rights of superiors, as to make any act compelling them to receive any series of heirs the vassal chose.
This was not necessary to secure their estates for the welfare of their family, which is always the inductive cause of entails. I am aware that Erskine says, B. ii. t. 7. § 6, that a method of obtaining an entry, which was universally considered as a new limitation of the superior's rights, was established by the Act 1685, so that the superior is not left at liberty to refuse the entering of those heirs whom the vassal hath named under the authority of a public law; and, moreover, that the superior is not entitled to a composition for every heir of entail, who is not heir of line to him who is last infeft. These views of the law are rested on the case of Denham, and the opinions of lawyers which led to that decision; and certainly they would have been entitled to the greatest weight, and, indeed, could hardly have been got the better of, if the credit of that decision had not been shaken by subsequent judicial procedure. The right of the superior was, in that case, held so much altered by the Act 1685, that it was not competent for the parties even to stipulate that, in the event occurring of a stranger heir succeeding, he should pay a year's rent, at least he could not bind an heir of entail in this payment. But in the subsequent cases of Mackenzie and the Duke of Argyle, the Court disclaimed this view, and allowed a clause of reservation to be inserted in the superior's charter, to allow the right to be determined when the case should occur. We are now called upon to do so; and I cannot discover any thing in the Act 1685 to abridge the superior's prior rights, even had there been no reservation in his favour. The powers of the proprietors alone was the subject of the Act, so as to make an entail effectual against creditors and purchasers, putting it out of the power of heirs of entail to deal with any such to the prejudice of future heirs. It had no other object. It does not enact that the superior must grant an investiture to such heirs as the maker chooses. It left the entry as before, to be the subject of adjustment between them. But if possible, to make this more clear, the superior's right to the
casualties is declared not to be prejudiced. This surely as clearly applies to composition, as it does to relief.
Your Lordship has examined with great minuteness the character of this payment, and the place it holds in our law books. You also mention, that in the clause of reservation in the Westshiel case, the payment of composition is distinguished from the ordinary casualties of superiority; and you conclude that the reservation in the Act does not apply to the composition for an entry of a singular successor, but only to the relief for an heir. As already said, I cannot believe that the Parliament 1685, wished to abridge a superior's rights, without even any express notice that they were doing so, or that, in the reservation of these rights, they did not intend to include this most important one, the right of not having a vassal forced upon him, not the heir of the person entered. I know very well that the composition for receiving a singular successor could not originally be reckoned among the superior's casualties, because it was not matter of right in the stranger, but of purchase and composition from the superior, whence its name, and whence also its place in our Institutes of law; but when it could be enforced by an appriser or adjudger, it becomes of the same nature as any other of the casualties; it truly became a casualty; and in truth I think the reservation more expressly referred to it than to any other of the feudal casualties. What effect could the entailing clauses have upon ward, marriage, or recognition? The last it more effectually prevented; the others would occur as before. Moreover, an entail would not exclude irritancy ob non solutum. In fact, it was the introduction of strangers into the series of heirs-of-entail which would affect the superior's casualties, and therefore this probably alone called for the express reservation. And this, I think, was effectually done by the Act; so that whatever privilege the superior had before the Act, as to agreeing or not agreeing to receive strangers as heirs of investiture, he continued to have after it; and the
entailing powers only operated in favour of the vassal, when he paved the way for it, by receiving the superior's consent to the admission of strangers as heirs of the investiture, and adjusting the composition due on alteration of heirs.
To say, because the Act authorizes the lieges to substitute heirs in their tailzies, that this gave these substitutes, in all respects, the character and right of heir of line to the maker, in a question with the superior, so as to convert a mere stranger into any other heir than an heir of provision, does not seem to me a sound inference. The term heir, I think, will never solve the question. Each substitute is an heir of entail, and has his rights and character as such in reference to the maker, and the heirs before him, and the heirs substituted after him under the entail, which is the charter and measure of his rights. But quoad the superior, he is still an heir of provision, and, if a stranger to the former investiture, he will remain so under the entail, until it is acknowledged unreservedly by the superior, and an investiture in his favour made up under it. But till then, though called as an heir in the entail, he is a stranger to the superior, and must be dealt with as such by him.
I may remark, that the insertion of the clause in the superior's confirmation of the entail of Westshiel, that every heir of entail should pay a year's rent for his entry, unless he was heir of line to the person last vest and seised, is very strong proof that our lawyers at that time did not hold such an heir entitled to an entry merely by paying the relief. It appears that the clause was twice introduced in 1726, and again in 1737, when the judgment which forfeited the estate was reversed, and the appellant took an entry. The composition paid had been 200 l. I cannot conceive a stronger illustration as to the understanding of the law at this time of both superiors and vassals than this; and it is important to observe who were the counsel who advised the parties at that time. From the appeal cases, it
appears, that, besides others on one side, there was Duncan Forbes, and on the other, the last President Dundas and Lord Grange, during the period of his return to the Bar, after resigning his seat on the Bench. These were great lawyers, and we may presume, that, at the suggestion of the one, and with the approbation of the others, this clause was introduced as a due exercise of the reservation in favour of the superior's rights in the Act 1685. I may notice, in passing, an illustration arising out of this case: The entail which Sir William Denham made in 1711 was not feudalized by him. Sir Archibald Stewart Denham was the first heir who made up a title under it, having irritated the right of a prior heir, and as he was not heir of line to Sir William, he paid the composition as a singular successor. This title was set aside, and the prior heir, Sir Robert, was found entitled to the estate, the composition being allowed to Sir Archibald, as if paid to the superior by Sir Robert, and the same clause was again inserted. It was held in 1760, that, having thus acknowledged the entail, the superior was not entitled to a year's rent, when Sir Archibald succeeded to Sir Robert, as he did, not being his heir of line. But suppose that Sir William Denham had, at the date of the entail, applied to the superior to give him an investiture under this entail to himself and the heirs-male of his body, whom failing, to Robert Baillie and the heirs-male of his body, whom failing, to Mr. Archibald Stewart, and the heirs-male of his body, would the superior have been bound to do so on payment of relief as an heir l The entail was made in 1711, and the entailer was an old man without heirs-male. He died next year. The superior was not, if he confirmed the entail in favour of Sir William, entering a singular successor, so that composition was not then due as for a singular successor, while it was very clear that it must be due at no very distant period. The superior surely was not bound to acknowledge the entail? That the interlocutor in 1760 implies, as it holds he had excluded his
claim to refuse, and this must have been by a voluntary act of his own. The vassal could not surely force a renewal of the investiture, as if it had been simply to Sir William Denham, and his heirs or his heirs-male? Therefore, I think it must be held, that it was still a matter of transaction between the parties, as they clearly viewed it at the time, although effect was not afterwards given to it by the Court. Sir William Denham could not be called on to pay composition as a singular successor, as was found subsequently in the case of Mackenzie; and if I am right in holding that the superior was entitled to a composition when Baillie took an entry under this entail, which really seems not questionable, on what principle can it be said that if he, having possessed the estate, should die without heirs-male, and Archibald Stewart, not his heir of line, came to succeed, he should not be liable for a composition on his entry? It might be held that an heir of entail was not entitled to bind a future heir in payment of this; but if a reservation of the right to demand it be inserted when the case occurs, I am unable to see on what ground it can be resisted as often as it occurs.
Considering that there is so much difference of opinion upon the point among us, I am happy to fortify my own views, by referring to the opinion of Lord Balgray, in the case of the Merchant Company, 17th January 1815. He observes, “a third encroachment arose from the Statute 1685. It empowers all men to entail their lands; and, by that Act, the rights of the Crown, and of all superiors, are reserved. Yet the superior was bound to receive the heir of entail, if he were also heir of line, though he succeeded as a disponee, and he could not object to do so:” that is, when he received him, he was bound to receive him as an heir, and paying relief only. “But whenever the entail went beyond the heir of the original investiture, or called others than the heir of line, it was considered that the superior's right to impose an entry revived under the
reservations in the Act.” He then refers to the cases of Mackenzie and the Duke of Argyle, “and the cases of the Earl of Dalhousie and the Earl of Breadalbane, decided in Exchequer, where the parties found caution, that, upon the succession opening to the fourth son, they would pay a year's rent”. This I must consider an opinion of very great weight.
The same observation applies to the last change made on the rights of superior and vassal by the Act 20 Geo. II. A purchaser may obtain an entry from the superior under a title, containing an unexecuted procuratory in his favour. He was no longer to act as an adjudger; but then it is expressly provided that the vassal must pay such fees or casualties, as the superior is entitled to ‘receive on the entry of such purchaser.’ The case here is simply the reception of the purchaser as vassal, and the superior's casualty on his entry is to be paid before he can obtain his title. This statute in this respect shows a due regard to the superior's rights; its object was to take from him a privilege inconsistent with the advanced state of the country, and the altered condition of superior and vassal, in relation to each other; but it went no farther, and it did not say that the payment then made would cover any series of heirs of investiture that might be introduced into an entail. To extend a vassal's right so far, and so far abridge the superior's, was not necessary for the object in view, and was certainly not expressly enacted. The utmost that can be said for it is, that it is inferentially deduced as the result of the two Acts, granting an authoritative right to the entry of such heirs as the vassal chooses, without expressly declaring that no casualty is to be paid on a change of heir. The view of the Legislature seems to have been all along the very proper one, to grant a privilege to vassals trenching as little on the superior's rights as possible, when both are compatible. It is quite compatible to allow the entailing on a series of heirs, and not defeat the right of the superior to
a composition as often as a stranger succeeds as heir of provision; and therefore, upon the whole, I concur in the views of the majority of the consulted Judges.
Lord Moncrieff.—This is undoubtedly a question of importance. It was once decided in Lockhart against Denham, July 10th, 1760; and, notwithstanding all that has since occurred, I still think that case, rightly considered, an authority of very great weight. But if the discussions which have since taken place have the effect of rendering the material question still an open point, subject to the force of all the authorities together, though in none of the latter cases, except that of Baillie, did the facts require or admit of a judgment on the point, at the least I cannot hold it to have been determined in opposition to Lockhart, and the express authority of Erskine, by any thing which took place in the case of the Duke of Hamilton against Lord Hopetoun, which appears to me to have been different from the present case, in the essential facts on which it depended, and which did not admit of any judgment on the question which the Court are here called upon to resolve.
On principle, I can find no solid distinction between the case of one heir of an investiture and that of another; between one series of heirs, not the heirs of the old investiture, who are once established in the superior's charter, and any other series so established. Whether they are natural heirs to one another or not, they are all heirs of the investiture, and enter as heirs of provision.
The case is,—That there is an entail by Miss Ewart (who was fully entered) to herself in liferent, whom failing to William Cossar, &c., with a procuratory of resignation. He resigned, and got a charter engrossing the entail, on paying the composition of a year's rent. This was right. But, once done, the entail was sanctioned as the ground of the investiture, and all the heirs as heirs of provision under it. The superior had no power
to refuse the charter in these terms. He was bound by the statutes to grant it, the composition being paid. He could not refuse, on the ground that the granter exercised the statutory power of imposing the conditions of an entail. This is not the question argued. The superior would not have been allowed to insert a clause, binding the heirs of tailzie, who might not be heirs of line of their predecessor, to pay a year's rent on entering;—not such a clause as that which occurred in the case of Lockhart. All the decisions together import, that the utmost admissible was a mere reservation of such a question, leaving it open on both sides. Cossar might have taken infeftment. But he held on the open charter. Still Lord Balgray took the estate as heir of provision to him, by service. He was no assignee of Cossar to whom the charter was granted; a fact very material with reference to the case of Lord Hopetoun. He was the heir specially, and nominatim, recognized as such in the charter. Lord Balgray was infeft on the charter; as the vassal of investiture, taking, not as assignee, but as heir. No composition could be due then, on any supposition. Yet it must be said, that, as he was not an heir of line or heir-male of Cossar, he would have been bound to pay it, if Cossar had taken infeftment, his not doing of which was a mere accidental circumstance. Lord Balgray dies without issue. The defender is heir of the investiture nominatim; and the question arises, Is he bound to enter as if he were a disponee or singular successor, paying a year's rent? because he is not the heir of line, or an heir by blood of Lord Balgray.
The plea-in-law for the pursuer is very vague: That, in the circumstances condescended on, the defender is bound to pay a year's rent. It is not made precise in the pursuer's case, p. 29. He speaks of ‘ the heir of the last vassal.’ He does not say the heir of line, nor does he exclude the case of heir-male general of the last. He leaves it doubtful, whether his plea limited to total strangers or not. But I understand the pursuer to mean
his ground to be, that the defender is not heir of Lord Balgray by blood; not, that he is not heir of Cossar, the institute of the entail and the charter; nor, that he is not an heir of the entailer. It is put on his not being heir of blood to the last person infeft as heir, though that person was himself a stranger both to the entailer, and to the first heir or institute. It so stands by the clause of reservation, which puts it on the heir succeeding not being heir of line of the last heir. There is another peculiarity in the conclusion of the pursuer's case,—That the defender must accept of a charter with a similar reservation. But, suppose the composition were due by the first extraneous heir, it might be a question, whether that must be continuous. Yet I understand the plea to be, that it must apply to every such heir successively.
In this state of the case, I look for the law necessary to support such a claim. And I may just observe, before going farther, that it appears to me to be a claim totally different in principle and character, from anything to be found in the opinion incidentally delivered in the case of the Duke of Hamilton v. Lord Hopetoun, on which the chief reliance is placed by the pursuer.
It is not necessary to go into the ancient history of the law, the state of it now in the essential points being clear. 1. By the Act 1469, a superior was bound to enter apprisers on payment of a year's rent. 2. By the Act 1669, c. 36, he was bound to enter adjudgers on the same footing. It is unnecessary to observe, that thereby the investiture was fundamentally altered, without the consent of the superior. 3. But by 20 Geo. II. he became bound to enter all disponees on payment of the usual “dues and casualties,” which provision has been understood to mean, the composition of a year's rent in the first instance, and the casualties afterwards falling due. Entries or renewals of the investiture, under the force of these statutes, are totally different from an original grant. But 4. By the Statute
1685, c. 22, all proprietors became entitled to make tailzies of their lands and estates to any series of heirs that they pleased, and under such conditions and clauses irritant and resolutive as they might think fit, but with a provision that the Act should not militate to the prejudice of superiors of the casualties of superiority. I understand it to be undoubted law, that, whatever reservations it may be competent to insert in the charter, the superior cannot refuse an entry upon such a title, or object to it on the ground that it contains clauses irritant and resolutive. I do not understand, that any point is here raised on this subject. But I may observe, that, if the superior were entitled to object on account of the entailing clauses, the time for settling any such question ought to be, when the charter is first granted constituting the new investiture. The Duke of Hamilton was in that position in Duke of Hamilton against Lord Hopetoun, and the opinion delivered in that case, whatever may be the effect of it, had precise relation to that position. If there were any equity fora consideration being paid to the superior, because of the effect of the entailing clauses, it could only be at first,—for something to be paid, besides the composition by the institute as disponee. If the entail has been acknowledged by the superior without any reservation of such a claim, the investiture is constituted, and has become, by the act of the superior, the law of the feu; and as to the clause of reservation in the statute of the superior's casualties, I concur in the commentary of the Lord Justice-Clerk.
And, with reference to the present case, if the estate may be effectually entailed, so that no alienation can ever take place, what intelligible interest can the superior have in the particular nature of the destination? If the vassal may tie up the property for ever to any number of heirs, ending with the Crown, what is it to the superior whether these heirs shall be heirs of blood to one another, or successive serieses of strangers, but all called as heirs, one after another. I agree in the observation of Lord
Kaimes, that, if the superior suffers, it is by the inevitable effect of the power to make such an entail.
When I look to the law, as it stands upon the authorities, I can see no ground for the present claim; and I think that, if it were sustained in the form in which it is maintained, it would introduce great confusion in the practical application of the principles which regulate the subject.
All the cases settle this generally, that persons who are heirs of the last infeft are entitled to enter on payment of the relief, only as heirs, although they succeed in virtue of special destinations.
The case of Mackenzie is particularly strong on this point. For the question arose with the first heir of tailzie, asking, for the first time, a charter upon the entail: and he was found entitled to the charter as an heir, because he was the heir of the former investiture; with only a reservation of any claim against future heirs, but reserving also their defences. The reservation in that case was of a very peculiar nature; because not only the entail had never been acknowledged by the superior, but no composition had yet been paid for the change of the investiture. It was, in like manner, determined in the case of the Duke of Argyle, that the heir of entail was entitled to enter as an heir, though the superior was permitted to insert a similar reservation of the question as to future heirs. I shall again advert to these cases more particularly. But, though a question of this kind may stand reserved, it still remains to be considered, what the nature of that question is, and what the merits of the claim are, when the occasion arises for considering them. The Court have constantly refused to sanction any reservation directly recognizing the validity of the claim. Accordingly, the reservation, in the present case, is merely, that the superior shall not be precluded, by granting the charter, from any claim which he may hate at law for a full year's rent, whenever the heir of entail succeeding shall not be heir of line
of the last entered and infeft. It will be observed, that the pursuer does not venture to make a claim to this precise effect; and, as I understand the opinions which differ from mine, it is not held that the composition is due wherever the heir of tailzie is not the heir of line of the last infeft. The doctrine now maintained is much more peculiar and abstract,—that the question depends altogether on whether the heir of provision asking an entry is, in any manner, related by blood to the predeceasing heir. This is a very different proposition from that advanced in the summons in this case: and I must own, that it is a proposition for which I can find no authority in the law. It is in no institutional writer, and in no decision with which I am acquainted. Even the incidental opinion, in the case of the Duke of Hamilton against Lord Hopetoun, is, as I have understood that opinion, utterly at variance with it. That seems to intimate, with reference to the special case, that the heirs called by the charter claimed on by the assignee of the procuratory, must all be heirs by blood to him. It happened that it was so in that case, which excluded the point, and withdrew attention from the peculiar qualification of the opinion. I understood it merely to indicate, that a tailzie by the assignee to strangers would be a different case. But that is a very different matter from the plea in the present case.
When we look at the authorities, the first thing which presents itself is the express doctrine laid down by Erskine. The question reserved, even if the pursuer be allowed to rid himself of the peculiar conclusion above alluded to, is distinctly this, whether the heir of a special investiture already in the titles derived from the superior must enter as a singular successor, if he be not an heir by blood to the last entered vassal. Then what says Erskine to that doctrine? ( Ersk. ii. 7. 7.) “Yet where a proprietor entails his lands, the superior is not entitled to the composition of a year's rent from every successive heir of entail, who is not heir of line to him who stood last
infeft, on pretence that he is a singular successor. The heir of the last investiture cannot be called a singular successor; and he is founded in a right to demand an entry, upon payment to the superior of the sum due to him by law, in name of relief, upon the entry of an heir.” Then as to Erskine's authority, it is true he refers to the case of Lockhart. I am not satisfied that that is not very high authority; but the first authority is in Mr. Erskine's own work. He so held it; and to this hour there is nothing to contradict it. The utmost is a permission to keep the point open. Mr. Bell is incorrectly referred to. He merely says that the question is undecided. Then consider the state of the cases,—1st, Lockhart v. Denham —I think it remains a decision of great importance. Divested of specialities, the heir of entail had taken a charter on a procuratory of resignation, with a very special clause of reservation. An attempt was made to decide the point on the charter, on the ground of the reservation being made a condition in the title. The real question there was whether that was consistent with law. It was pleaded that the heir of entail could not be bound by the acceptance of the charter by another. But, besides, what power had the superior to insert the reservation if he was bound to grant the charter? Therefore, it could have no effect but as a reservation of the question. The idea, in the later cases, seems to have been, that the Court refused to acknowledge it even as a reservation, because they found, that, in respect the entail had been acknowledged, the claim would not lie. But I doubt the correctness of this. I suspect that the idea was, that the imperative nature of the clause, once put in the investiture, should have been binding, being unreduced. But it may have been otherwise. The Court may not have regarded the reservation. But surely, if with such a clause they still held on the merits that the heir of investiture was entitled to enter on payment of relief only, it is a judgment on the merits of that question, and a fortiori in the present case, where clearly the
clause does no more than keep the question open. For the effect of the clause is not to qualify the charter or investiture. The superior could not help granting the charter, and the clause is merely a salvo by permission, to avoid discussing a question which might be unnecessary. In the report of Lockhart's case, the pursuer argues on the reservation as barring the defender from objecting, personali objectione. The defender merely said it was of no weight, because he does not represent the taker of the charter. But he argues the whole merits on the footing of the question being open. In the later cases all that can be said is, that the question was waived as unnecessary to be decided. In the case of M'Kenzie, it was a single composition that was asked, and it was found not due, though the entail had never before been recognized, because the heir asking an entry was the heir of the former investiture. The reservation allowed was only of the claim on the entry “of any future heir of tailzie not an heir of the investiture prior to the tailzie.” This is not at all what is maintained here; and it reserved also “to the said heirs all defences against the same.” It is clear, that all that was contemplated was the question of one composition for the change of investiture. The opinions reported by Lord Hailes are not favourable to the pursuer. The Lord President evidently held the case of Lockhart an important decision. Lord Gardenston and other Judges held the same. Lord Braxfield says nothing against it, nor the Lord Justice-Clerk. The reservation was agreed to, to leave the question open.
In the case of Argyll, Lord Dunmore had offered to pay a composition, being institute. The pursuer required a positive declaration that he would not be bound to enter future heirs, not heirs male or of line of the person last entered, without another composition. The defender offered a reservation of the question, and the question discussed was whether that was sufficient? Plainly it decided nothing; but that the pursuer was not entitled to frame his charter in the way he required.
The observation on Denham was, merely, that, so far as effect was supposed to have been denied to a similar reservation as that offered, it must have been erroneous. But it does not appear that effect was so denied to it. It was only denied to the effect asked by the Duke of Argyll. In the case of Baillie the precise case occurred. But there was this specialty that a charter had been granted without any special reservation, and it was pleaded the pursuer did not represent the granter of the charter but as heir of entail. It was indeed said it would not decide the general question. But the point of right was decided. Lord Corehouse's note is direct on the very question. I grant that the question is reserved here; but, though it is reserved, the question remains, how is it to be decided?—Duke of Hamilton v. Hopetoun. The judgment in that case was not meant to be adverse to the opinion in Baillie. But the case was very peculiar. There was a charter to Lord Hopetoun and his heirs and assignees. A composition had been paid. Then there was an assignation to a series of heirs in the marriage contract of his son, Earl John, all heirs of the assignee's blood. There had been no acknowledgment by the superior of any special destination, and the question was simply, whether one composition was not due for the first acknowledgment of the destination in the deed of assignment? That was manifestly an entirely different question from that which here occurs. Lord Stair in the passage which has been referred to, (B. ii. t. 3, § 59, beginning “as to the first case, it is a general rule,” &c.,) contemplates strangers as well as heirs in blood, being members in the constitution of the tailzies he is speaking of. And your Lordship reminds me, that, if the principle contended for were to be sustained, it would throw the whole matter of making up titles to entailed estates into confusion. At present it is impossible to say, whether it be necessary for every heir who is a stranger to the heir last infeft to pay composition, or whether the first substitute of a new series in blood should pay composition. It
is difficult to say what would be the result, if the views of the defenders were to regulate the law; and as there are very few entails in which new members are not introduced, whether every substitute of a new series in blood is to be considered as a stranger, or whether only the first. The superior asks composition on the succession of the first member of a new series, but I do not well see whether every other member is to pay composition equally with the first.”
Thereafter the Court, 18th February, 1842, pronounced the following interlocutor:—
“The Lords having resumed consideration of the cause with the opinions of the consulted Judges, in accordance with the opinions of a majority of the whole Judges, find that the pursuer is bound to receive and give an entry to the defender as an heir of the investiture, on payment of the ordinary casualty of relief; and remit to the Lord Ordinary to proceed farther in the cause as to his Lordship shall seem just, and find no expenses due to either party.”
The appeal was taken against this interlocutor.
The Lord Advocate and Mr. Moir for the Appellants.— The ancient law was that no change in the investiture could be made without the consent of the superior, and that on failure of the vassal's heirs, the feu reverted to the superior, Ersk. iii. 10, 2. That rule is still in force, unless in so far as it has been modified by statute. The Act 1469, cap. 36, gives apprisers right to demand an entry, but only on payment of “ a zeire's maill” of the lands. The same right is given to adjudgers by 1669, cap. 18, and to purchasers at judicial sales, by 1681, cap. 17, but each of these statutes gives the right only upon the same payment as in the case of apprisers, viz., a year's rent. Then came the 20 Geo. II., cap. 58, which took away the right of the superior to control the investiture, and gave heirs and singular successors a method of compelling an entry by letters
Previous to the passing of the Act 1685, cap. 22, which enabled vassals to entail their lands upon a series of substitutes,. whether strangers or of blood, by effectual fetters against alienation, superiors had little interest to protect themselves against the admission of strangers under the ineffectual destinations then in use, as the destination was almost sure to be defeated before it came to the stranger. That statute, however, gave the vassal the power of fencing the destination against alienation, and of forcing the superior to acknowledge an investiture which might include any number of singular successors. This statute is also silent, however, as to the terms upon which the superior is to enter the heirs of entail, and might have altered materially the position of superiors in this respect, unless provision had been made for their protection, but it declares that it shall “not prejudge lawful superiors of the casualties of superiority which may arise to them out of the tailzied estate.” This declaration cannot have any other meaning than as a reservation of the superior's casualties, and a declaration that, although his common law-rights had been touched so far as to force upon him the recognition of an inalienable feu, his right to those casualties was untouched.
It is evident, therefore, that none of the statutes have in any way infringed the superior's rights at giving an entry, though they have compelled him to give entries to which he was not previously compellable; and therefore, although he cannot now refuse to give a charter under an entail with strict fetters, yet his right remains as before, to demand from every heir, a
An entail is in substance an alienation to strangers by anticipation, and each substitution which departs from the line of the vassal last entered, is a repetition of the alienation, and the substitute asking entry is a disponee or singular successor, and bound to pay a composition accordingly. In Lockhart v. Denham, Mor. 15,047, it was held that the superior was bound to enter heirs of entail, not heirs of line, as heirs and not as singular successors, but that proceeded entirely on the fact of the superior having acknowledged the investiture; and, moreover, the decision has always been considered of questionable authority, and not as deciding the question; but at all events, in the present case the charter given to the last vassal entered, expressly reserved the superior's claim to a year's rent, when the succession should open to an heir of entail not an heir of line. In McKenzie v. McKenzie, Mor. 15,053, the vassal was the lineal heir, and in right under the feu as it stood before the entail. The Court expressed itself dissatisfied with the decision in Lockhart v. Denham, and while they found that the superior was bound to enter Sir Hector McKenzie upon payment of a duplicand of the feu duty, they inserted in their interlocutor a reservation pretty much in the terms of that in the last charter in the present instance, which shows conclusively that Lockhart v. Denham was not held as having decided the general question. But this is shown even more distinctly in Argyll v. Dunmore, Mor. 15,068, where an institute of entail was willing to pay a year's rent as a singular successor, but the superior refused to receive him, unless he would consent to a reservation in his
Yes, but the question was not as to the heir of the entailer, but of the first party who took investiture under it.
There was no question in Hopetoun's case between the heirs of the maker of the deed, the question was with the heirs of the party having the investiture. It was there held that a party taking assignment of the precept before infeftment, is entitled to take up the investiture, and introduce his own heirs. Here Cossar was a stranger to Miss Ewart, and so was Lord Balgray. Lord Balgray being a stanger, took the first entry, and it is he who asks the introduction of the respondent into the investiture.
Mr. Turner and Mr. Anderson for the Respondent.—I. So far
If the respondent then take under the investiture, and under it alone, he has every character of an heir, and none of a singular successor, who, in the definition of Craig is, “ is qui immediate non est successurus ratione habita ad id tempus quo investiturum accepit.” It is only by special service as heir that the respondent can take up the succession, and the 20 Geo. II., cap. 50, assumes the production of a special retour to be the criterion of the character of heir. If then the respondent be heir of the investiture and entitled to an entry as such, it can be only upon the terms upon which an heir is entitled to an entry; that he is heir of provision and not of line, makes no difference in regard to these terms upon any authority which can be produced; though not the heir of line, he is not the less the heir of the
II. That the entail under which the respondent claims to be entered, contains fettering clauses, which, so long as the line of succession prescribed is unexhausted, will prevent the admission of singular successors, and the falling of the casualties which would thereby accrue to the superior, will not support the superior's claim, is admitted. The opinions delivered by the consulted Judges in Hamilton v. Hopetoun, 1 D. B. & M., 689, show this to be incontrovertible. The Act 1685, cap. 22, allows vassals to tailzie their lands upon strangers, but makes no provision for any such fine. A strict interpretation of that Act, therefore, would warrant the position that the superior is not entitled to a composition even on the entry of strangers under the investiture, and such appears to have been the opinion of Ersk. ii. 7, 6 & 7. However this may be, the superior cannot be entitled to a recompence for admitting strict fetters into the investiture. Anciently, before vassals came to have the power of alienating the feu, and before the Crown had acquired the right of ultimus hæres, superiors could prevent tailzied destinations, because they altered the succession, Craig, ii. 16, 20; Stair, ii. 3, 43. Now that the law is changed in this respect, they cannot ask a recompence, on the very opposite ground that strictly fettered entails prevent the sale of the feu, and the frequent alteration of the investiture. And if the superior must recognise the entail, the injury to him is the same whatever be the series of heirs. His exclusion from the chance of a composition is as effectual where the fetters are laid
III. Previously to the Statute 1685 the vassal had acquired the right to name the heirs to the feu, and to change the succession from the legal to an arbitrary line, Stair, iii. 4, 2, 20 and 23, and ii. 3, 43. The mode by which the vassal could compel compliance from the superior with this nomination was by adjudication, and the heirs introduced in this way stood in the same relation to the superior as the heirs they displaced; and so far were the heirs of the adjudger from being liable to be treated as singular successors, that until the Act 1669 even the adjudger himself was not liable in any composition, Stair, ii. 4, 32. After the Act 1669 the heirs of the adjudger continued free from liability, for it made the Act 1469 the rule of the superior's right, and by it a year's rent was payable only on the entry of the appriser himself.
The Act 1685, though perhaps it had chiefly in view the making fetters of entail effectual, nevertheless confirmed this power of nomination in the vassal when it gave the vassal power to tailzie his lands and to substitute heirs. Under the statute the superior cannot refuse to grant a charter upon an entail, whatever may be the series of heirs, and unless any infringement thereby occasioned upon his rights is saved by the clause of reservation in the present charter, there is nothing in the statute
So far as regards the present question, an heir of the blood not being the heir of line is in identically the same position as an heir of provision not of the blood; they neither of them take according to law, or by the provision of the law, but by the will or by the provision of the entailer, and they must both take by the same form, service, and retour. There may be a class of persons who might successively be entitled to the character of heir-at-law, but only one person at a time can enjoy
Lastly, even if the respondent were a singular successor, it would not follow that he must pay a composition for an entry, that payment is strictly statutory, and therefore demandable solely from those parties upon whom the statute has imposed it, as was found in regard to adjudgers, previous to the Act 1699, in Grierson, Mor. 15,042, and in regard to Crown donators, in Gordon, Mor. 15,050. But there is no statute which imposes this payment upon a party claiming an entry under an investiture, because he is a stranger in blood to the vassal last infeft. If it be payable, therefore, the vassal must be at the mercy of the superior, as to its amount, for there is no authority for making it a year's rent more than any other sum. The right, if it exist, then, must be by the common law, and be universal; but there is no trace of the claim at all until the case of Lockhart v. Denham, although entails were known long prior to that time; neither is there any mention of it in the institutional writers prior to that time.
In Lockhart v. Denham, Mor. 15,047, there was a special obligation on the heirs of entail to pay a year's rent when not heirs of line, which was stronger than the reservation in the present case, but the Court refused to give effect to the obligation, and though they did so mainly upon the ground of defence set up by the heir, that the heir who had allowed the obligation to be inserted in his charter had no power thus to bind the substitutes, this was in truth to negative the superior's claim to the payment, and in this view it is a direct authority. In Mackenzie v. Mackenzie it does not appear that the superior claimed a succession
Miss Ewart died in the year 1811, before the tailzie was recorded, and was succeeded by William Cossar, who took the name of Ewart, according to the conditions of the tailzie. He resigned into the superior's hands, by virtue of the procuratory in the original tailzie, and obtained a charter of resignation in favour of himself and the heirs of the investiture. The reddendo clause specifies eighteen merks to be paid yearly in lieu of feu duty formerly paid, and also stipulates for the payment of the double of
This charter contains an important saving clause (when I say “important,” I mean important on account of the argument which has been raised upon it, because the reservation of what is a man's right by law does not seem worth much; he would have his legal right whether it was reserved or not). It will presently appear how it operates—reserving all claims of the superior and his heirs, which they may have at law, for a full year's rent, whenever the heir of entail to whom the succession may open, shall not be the heir of line of the person last entered, and infeft by the superior or his heirs. A composition of 486 l. being a full year's rent, was paid by William Cossar to the superior on this occasion. He died without taking infeftment on this charter of resignation, and leaving no heirs male of his body, he was succeeded by Lord Balgray. His Lordship was served heir of tailzie and provision, in June, 1818. He took up the unexecuted precept in the charter, and was infeft under the reservation which has been mentioned. He died in February, 1837, without heirs of his body, and the respondent, Robert Ewart, was served heir of tailzie, and provision to him. It is a fact in the cause admitted, that he was not heir of line, nor stood in any degree of relationship to Lord Balgray, the person last seized. He was a relation of the entailer, but a stranger to the person last seized. The appellants are the superiors, and they brought their declarator of non-entry, calling upon the respondent, Robert Ewart, as heir of tailzie and provision, to enter; and on his refusing, calling upon the Court to have it found and declared, that the lands are in non-entry by reason of Lord Balgray's decease, and shall so continue until entry of his heir or of his legal disponee, and that therefore they have a right as superiors to the bygone non-entry dues.
The question, therefore, intended to be raised by the action, and which it does raise, is whether or not the appellants as superiors
An objection was taken by the respondent, the defendant in the Court below, and a good deal insisted upon there, that this was not the competent form of action for trying such a question of the right to a year's rent. But that objection may be taken to be now abandoned. It is not urged in the respondent's cases here, it received no countenance from the learned Judges below; indeed, the only two who refer to it, the Lord Justice Clerk and Lord Medwyn, though differing widely from one another upon the merits of the question itself, both in express terms declare against the validity of this preliminary objection. None of the other eleven Judges make any allusion to it. Lord Meadowbank agrees in every respect with the Lord Justice Clerk, who had declared against the objection. In a word, all their Lordships either decide or assume that the objection has no force at all.
We are therefore brought to the merits of the question itself. It is one of great importance, and its difficulty is testified by this remarkable circumstance, that the narrowest possible majority of the learned Judges below has pronounced the decision now appealed from, there being seven in its favour, and six against it, and that the decision would have been the other way, and by the same majority of seven to six, had not one of those learned persons changed his opinion in the course of the proceedings, that is to say, abandoned the opinion which he had formed upon hearing the case argued, in consequence of reconsideration, and of the arguments used by the consulted Judges and the permanent Lords Ordinary. It is now then necessary to dispose of this main and only question in the cause.
It cannot fail to strike in the outset any one who attentively considers this argument here, that they who maintain the appellant's case, the superior's claim, are in two particulars driven to
First, the taking one year's value is only derived from the rule of taking it when the superior accepts the tailzie by the first charter which he gives, carrying the feu to persons not of the original investiture and of his first grant. But it by no means follows that the same rule is to apply where he subsequently admits any person under the new investiture, and only follows out that for which he had been paid his composition. The year's value first taken, is derived from the ancient right of the superior while he was not as he now is, a mere instrument of conveyance, and while he had some option in the matter of granting or refusing a charter.
But the second assumption is more important, and is found to be too strong for some of those learned persons below, who yet agree with the minority in the Court below, and support the claim of the superior. It is too strong for them, and they repudiate it, although they agree with those who come to that conclusion upon that question. It is contended, or rather it is taken for granted by the argument of others, that it is one thing to admit under an entail an heir called to the succession, who is related by blood to the person deceasing, and another thing to admit an heir called to the same succession in the same tailzie, but who is a stranger in blood to the person last deceased. The
Now, this seems to have been clearly perceived by some of the learned Judges who agree with Lord Fullerton in supporting the superior's right. Lord Fullerton, differing wholly from Lord Jeffrey, takes this more accurate view of the matter, and holds those strangers in blood to be, as they most clearly are, heirs male out of the investiture, while Lord Jeffrey will not call such persons heirs at all for want of blood, but terms them disponees or singular successors. It is however worthy of observation, that Lord Jeffrey's opinion is extremely short and general; he contents himself with a general acquiescence in Lord Mackenzie's opinion, who preceded him, and goes at no length himself into the argument, while Lord Fullerton has very fully argued the point. Lord Mackenzie falls, though not so entirely, into what I take leave to regard Lord Jeffrey's erroneous view of this fundamental matter. But then I must so far agree with both these learned persons, and differ with Lord Fullerton, that I do hold this position—what I call this erroneous position—to be fundamental, and that I am wholly unable to see how the superior's claim can be maintained on any other view. The heir of the
I may here dispose of the argument raised upon the reservation. The superior rests upon that very clause, not denying that but for its import and operation he can have no ground to stand upon. Now, to what does it amount? The superior reserves all right to this casualty, or payment. (I see one learned Judge, the Lord Justice Clerk, argues at length against its being a casualty, on which I give no opinion, for it is not necessary farther than to say, that his Lordship's argument has not at all satisfied me that it is not a casualty, but the point needs not here be settled.) The superior reserves all such right as he may be found to have, nothing more. He saves such right as he may have by law— no more. Then to what does this amount, but to a reservation of the right, if by law it belongs to him, but leaving the question open to be determined when it arises? And this too may be said of the cases relied upon mainly by the superior; they only deal with what it was necessary for the Court in each instance to determine, they go no further than was necessary, they tell the parties you have such and such rights clearly and at present, and the further matters shall not be deemed and taken to be needlessly concluded by any thing now adjudged, but must be dealt with hereafter, when it becomes necessary to decide upon them. And to show more clearly that such is the true character of these decisions, it may be observed, that sometimes, in taking this course, which is quite decisive upon what the meaning of the Court is, there is a saving also added of all objections competent to the claim so reserved; they not only reserve the claim of the superior, but they also reserve all competent objections to such claim, and further than that in one case, the decision in Lockhart v. Denham, which is most important, that is the Westshiell case,
This general remark may be thought to suffice upon the cases which the superior relies on. But it is fit that we go further into them; and when we come to examine the authorities, we really do find that, justly considered, the balance is all on one side. It is not at all too much to affirm, notwithstanding all the elaborate and subtle arguments on this case, that there is no one authority either of a text-writer, or a decided case which supports the appellant's contention.
I entirely agree with Lord Moncrieff and other learned Judges, in considering the passage in Erskine as of the greatest importance. It is, as the Lord Justice Clerk well observes, not a single statement of opinion, it is repeatedly given by that very learned author, the Professor of Scotch law, and one intimately acquainted with feudal principles. It is a clear and an unhesitating, and an unqualified opinion, or rather, which augments its weight, it is given as a known principle, and not as a matter of any doubt or controversy, upon which, however, had any dispute existed, his opinion would, as such, have been entitled to the greatest respect. But he states it as known law, and no matter of controversy at all. “The superior,” he says, “is not entitled to the composition for every successive heir of entail who is not heir of line of him who stood last infeft, on pretence that he is a singular successor,” as if he had foreseen the present argument, and wished to furnish previously an answer to it. He goes on to say, “he cannot be called a singular successor; he is heir of the investiture.” Now, it is plain that this learned writer would not deny that in one sense he is a singular successor; he is not heir at common law; but what he plainly means is this, that if he be singular successor, he is so in company with all the heirs, who having the blood in them of the last person seized, yet not
But it seems this opinion, or rather this authoritative statement of Mr. Erskine, is entitled to little deference, because it cites as its support the case of Lockhart v. Denham, then, it is said, recently decided. The decision was, however, thirteen years old when Mr. Erskine wrote the passage in question. It was not the day before, but for thirteen years it had been known and never quarrelled with, never objected to: it satisfied the profession. Had it not given satisfaction among conveyancers, among the learned feudists of the day, he doubtless would have stated the doctrine which it supports with some qualification. Had it not met with his own full approval and been backed by his high authority, he probably might have expressed himself differently too. But it is to be observed, that he does not lay it down as any new law first declared by that decision. Though he refers to the decision, he does not give it as forming the only ground of his statement.
Then it is said that not only was this a recent decision, but it was afterwards impeached; and one learned Judge, Lord Fullerton, goes so far as to say, that since the decision in the Duke of Argyll v. Dunmore, and Mackenzie v. Mackenzie, it can no longer be regarded as an authority. I do not at all see that either of these cases overrules the case of Lockhart v. Denham. Indeed, Mackenzie v. Mackenzie, besides that it makes very much in favour of the respondent's, the vassal's, contention, declaring the first heir of tailzie entitled to his charter quasi heir, because heir of the former investiture, adds a reservation of any claim against future heirs, but adds also a reservation to them, the vassals, of all competent defences against the superior's claim. And, as Lord
Now in the Duke of Argyll v. Dunmore, the other case relied on as not merely shaking, but overturning the Westshiell case, I can find no ground whatever for this assertion. The question arose with the institute, and he offered a composition. The superior required, as a further condition of entering him vassal, that a reservation, or rather an acknowledgment, should be adjected of his not being required hereafter to enter any stranger in blood without a full composition. The superior called therefore for an admission of the right in his favour prospectively, the vassal refused that, but the vassal offered a clause of reservation, that is, he offered a clause to keep the question open, such a clause as the present. But what is most material to observe, is, that the superior, now pursuer before the Court, called for a judgment in his favour, because the question raised by his action, was whether or not this offer of the vassal to insert a saving clause was sufficient. And what was the decision of the Court? That the superior had no right to a declaration in his favour, and was bound to take the saving clause as offered by the vassal. The utmost that can be alleged of this decision is, that it did not consider Lockhart v. Denham, the Westshiell case, as having denied all effect to a clause of reservation like the one now before us, and held by the Court to be sufficient, though denied to be so by the superior, whose contention was thus overruled by the Court. Nothing else, as Lord Moncrieff justly observes, was decided, except that the superior was not entitled so to frame his charter.
It must be remarked, that supposing the two cases of Mackenzie v. Mackenzie, and the Duke of Argyll v. Dunmore, to lay down all that they are contended to lay down respecting the previous case of Lockhart v. Denham, they only do so upon the
It is further material with this view to remark the pregnant observation of that great feudal lawyer, Lord Braxfield, as reported by Lord Hailes, in Mackenzie v. Mackenzie, for it shows his opinion of the effect of such a reservation being merely the exclusion of a condition. “May not,” says his Lordship, “the superior throw in a reservation? If he does not, he cannot afterwards claim, for the granting of the first charter is the enfranchisement of all the subsequent disponees.” The Court also, in Argyll v. Dunmore, in the interlocutor, expressly says, “In respect the reservation proposed leaves the question entire when it shall occur.” It is quite clear, therefore, that the meaning was to leave the question entire, and no more.
It remains to take notice of the two other cases which have come into discussion. The Duke of Hamilton v. Baillie, and the Duke of Hamilton v. Hopetoun. The point arose in the first of those actions, and no doubt, as far as the decree goes, it may be said to be in the vassal's favour, the observation of the learned
But the other case, (the case of Hamilton v. Baillie, being laid out of view for the reasons I have mentioned, as going upon the special circumstance of forty years' possession,) goes a great deal further for the support of the vassal's claim, and it is incumbered with no special circumstances whatever. Lord Moncrieff justly says that this case did not at all impeach that of Westshiell, Lockhart v. Denham, and that the present question did not arise. But I think his Lordship sets the importance of that decision too low as regards its bearing upon the present case, when he merely seeks to get rid of it as an authority against the vassal, and against the side of the question on which his Lordship is ranged. It appears to go a good deal further, and we have the valuable intimation of Lord Mackenzie, one of the learned Judges who side with the appellant and the superior here, and against the vassal, that although the present question was not there raised, yet the Court expressed an opinion, which he calls accidental,
But Hamilton v. Hopetoun, goes further still. The decision is matured on the question here raised respecting the difference between heirs connected by blood and mere strangers. The Court confined its judgment to heirs of the blood or line, because there was no question before them of any other, and any declaration going beyond that would have been obiter and unnecessary and not called for. But then they laid down, in the clearest manner, that no heir of the blood, be he a five hundredth or a five thousandth cousin, could be considered a singular successor, with a view to the question of his entry, under the investiture. Therefore, as Lord Ivory well observes, there is an end of the appellant's contention, that any heir of entail not in the direct line, is to be regarded as a singular successor, though an heir of the investiture.
In conclusion, it must be observed, that the utmost extent to which the argument goes in favour of the superior, is to shew that he has not the Westshiell case against him. Now, I never gave more attention to any case than the present, on account of the peculiar circumstances in which it comes before us, and the great feudal importance of the question. I have examined most minutely all the arguments, both at the Bar, and proceeding from the Bench, and I find that the whole of the contention resolves itself into an attempt, which I think a failing attempt, to displace the Westshiell case. But supposing that case is displaced, this
My Lords, upon these grounds, which I have entered into at greater length than I should otherwise have done, on account of the peculiar importance and difficulty of the case, I am clearly of opinion that this decision ought to be affirmed.
Whatever might be the state of the law as between the superior and the vassal, upon entails made by the latter prior to the Act of 1685, it is certain, that under that Act the latter had the right and power of substituting heirs in his lands by tailzie; that is, of substituting persons in the succession, whether strangers in blood or not, and who were designated as heirs. The superior was bound, under this Act, to give effect to such entails; he could not refuse because strangers in blood were introduced into the succession. If, therefore, the right of the superior before the Act to require payment of a composition of one year's rent, arose from, and depended upon, his right of refusing to give effect to the proposed entail or alienation, it is obvious that the Act very materially altered his position. Certain rights of the superiors were not overlooked by the Act, for it provided that the Act should not prejudge the superiors of the casualties of superiority which might arise to them out of the tailzied estates, and that those fines and casualties should impart no contravention of the irritant clauses. The fines and casualties spoken of were obviously claims which were to arise and become payable out of the estate after the completion of the entail. If the composition claimed be not a casualty of superiority which was due and demandable out of the estate before the Act, it cannot be included in the reservation, and the Act would in that case be conclusive against the appellant's claim.
For the reasons stated by the Lord Justice Clerk, there seems to be much ground for holding that the composition was not a casualty of superiority, and was not payable out of the estate. If, before the passing of that Act, the superior was not bound by common law to give effect to an entail in which strangers were
The Statute of 1469, which allowed land to be apprized by creditors, obliged superiors to give an entry to the apprisers for payment of a year's rent, but there does not appear to be any ground for supposing that the appriser was restrained as to the disposition of the interest he took under the statute, and if he was at liberty to make the investiture in favour of such heirs as he chose, then succession of strangers in blood could not be subject to another payment of one year's rent, the statute only requiring one such payment. So, when the Courts assumed the jurisdiction of making dispositions effectual by adjudication, they did not require the vassal to pay the composition of a year's rent, that proceeding not being within the Statute of 1469, and it must be assumed that the superior was not considered as entitled to it until the Act of 1669 in terms gave him that right.
This history of the law appears plainly from the first volume of Stair. The Act of the 20th George II. compelling the superior to enter all disponees, on payment of the usual dues and casualties, gave no new right to the superior. From this and the other authorities referred to, it appears to me to be well established that before the Statute of 1685, all vassals had the means of changing the investiture, and of making what declarations they pleased; but as those means were under the Acts of 1469 and 1669, the superior was entitled to a composition of one year's rent, but as this was due only by virtue of those statutes, and as those statutes gave it only upon the entry of the apprisers or adjudgers, he was not entitled to it upon the succession of any one claiming under such entry. Nothing, therefore, in the nature of the claim now made was a casualty of superiority at the time of passing the Act of 1685. That statute,
Upon general reasoning, this would appear tolerably clear, but it must be ascertained what decisions there are affecting this question, and the answer to that inquiry strongly confirms this view of the case. The case of Denham in 1760 appears to be a decisive authority. The very point was raised and decided against the superior, although there was a reservation of the supposed right. The acknowledgment of the entail is stated in terms only to have consisted in granting the charter and infeftment thereon, which all exist in the present case. Erskine thought this decision conclusive, and I do not find any subsequent case displacing the authority of this decision. That of Mackenzie, indeed, in 1777, confirms it, and particularly the observation of Lord Braxfield, that the granting of the first charter was an enfranchisement of all the subsequent disponees. There was no question in that case of paying a second composition.
The case of the Duke of Argyll v. Lord Dunmore, in 1798, may show that the superior was not willing to consider the case of Denham as conclusive against his claim, but it proves no more. There was no decision, and as it was probable that the fact necessary to raise the question would never arise, the parties were willing to keep it open. But the case of the Duke of Hamilton v. Lord Hopetoun is of more importance, though in that case, as in the preceding, the precise question did not arise, and was therefore reserved; but in that case it was held that a purchaser was entitled to substitute all his own heirs in any order he chose, without the superior's consent, and consequently, the first in the succession being the purchaser's son and his heir male, that the superior had then no claim. Now if the vassal
In the Duke of Hamilton v. Baillie, in 1827, the superior having granted the charter without any reservation, was held bound to enter, that is, he was held to be precluded by his own act from raising the question. That case, therefore, is directly in point with the present.
These cases, on the part of the respondent, are not met by any contrary decisions; I think, therefore, that upon authority, as well as upon principle, the decision of the Court below was right, and that the interlocutor appealed from ought to be affirmed.
Ordered and adjudged, That the petition and appeal be dismissed this House, and that the Interlocutor therein complained of be affirmed with costs.
Solicitors: Spottiswoode and Robertson— Deans, Dunlop, and Hope, Agents.