Scottish Court of Session Decisions

“But the exception to which we allude, and upon which the defenders seem now exclusively to rely, relates to the structure of the irritant and resolutive clauses in the investiture. In framing the charter 1770, the entails 1767 and 1774, instead of being kept separate, as they ought to have been, were combined, so that if the charter, with the sasine upon it, is alone considered, a contravention of the provisions in the entail of Gartmore would apparently infer a forfeiture, not only of that estate, but of the estate of Culbowie also; and vice versa, a contravention of the entail of Culbowie would apparently infer a forfeiture of the estate of Gartmore. To that extent, it is clear that the entail, as it stands in the investiture, is not in form absolutely identical with the entails in the deeds 1767 and 1774; and this the pursuers do not dispute.

“We come, therefore, to the second point to which our attention is directed, namely, what is the legal effect and consequence of this difference? which, reversing the order suggested, we think may best be considered, 1st, As in a question between the pursuer and W. C. C. Graham, that is, between the substitute heirs and the heir in possession; and, 2dly, between the pursuer and the other defenders, who appear in the character of third parties or creditors.

“In a question between the substitute heirs and the heir in possession, it will be observed, that the estates contained in the two deeds of entail are conveyed separately in the charter; and it is declared, that they are conveyed under the conditions and provisions, and under the irritant and resolutive clauses in two deeds of tailzie; that Robert Graham and the other heirs of tailzie shall enjoy and possess the estates by virtue of the said two deeds of tailzie; that he shall insert the conditions of the said tailzies in the charters and infeftments which are to follow on these tailzies; that no acts of contravention shall prejudice the heirs destined to succeed by the deeds of tailzie, and so forth, keeping both deeds constantly in view; and in the clause of quæquidem, the progress of the separate estates contained in each tailzie is set forth, and both tailzies are specially described by the respective dates of their execution, and of their registration in the books of Session. In answering this first question, which arises between the substitutes and the heir in possession alone, and in which, therefore, the provisions of the act, 1685, do not enter into the case, it is necessary to consider upon what principle the charter, 1776, is to be construed. We conceive that the special references in that charter to the two entails under which it is declared that the two estates shall be held and enjoyed, are sufficient authority for taking into view both those entails, for the purpose of ascertaining its import. If that be granted, it makes way for the rule, quod singula singulis sunt applicanda, for materials are given upon which that rule can operate. We do not mean to say, that, in every case, an investiture may be construed by reference either to prior investitures, or to the warrants on which it proceeds. But when, in the investiture to be construed, express reference is made to those warrants, as explaining or authorizing the rights which it confers, we think that this is a legitimate mode of construction. Nor is this opinion at variance with the recent decision in Hope Vere's case, because there the destination in the old entail, 1708, could not possibly be reconciled with the destination in the new entail, 1733, and it was manifest that those who framed the latter laboured under the mistake that the two destinations were the same. If they had been informed of their mistake, there was no reason to conclude that they would have been induced to depart from the new destination. That destination, therefore, which neither required nor admitted of construction, was necessarily adopted, though its author, the Countess of Hopetoun, was in error either as to its effect, or as to the effect of the preceding entail, to which she referred; but whether as to the one or the other did not appear. Here the case is reversed: Whenever the rule singula singulis is admitted, the charter, 1776, is not only not irreconcilable with the entails upon which it proceeds, but is in exact conformity with them.

“If, instead of the present action, a declarator of irritancy had been brought against the defender, W. C. C. Graham, to forfeit Culbowie, on the ground that he had contravened the entail of Gartmore, we do not think that he could have been precluded, by the form of his investiture, from showing that he had violated no condition of the entail, under which that very investiture provided that he should exclusively possess and enjoy that estate; and so vice versa if a contravention as to Culbowie were pleaded as a forfeiture of Gartmore. But if a plea, which necessarily infers that the entails are still in force, would have been available in his favour in that action, it must be so against him in this action, in which he maintains that the same entails are extinguished.

“The question assumes a different shape when it occurs with third parlies, and when the provisions of the act, 1685, come into operation. A purchaser or creditor is entitled to look for the conditions and fetters of an entail, either in the register of tailzies, or in the record of sasines exclusively. He is not bound to compare the one with the other, nor can he be referred to any deed, not part of the registered entail, or recorded sasine, to explain either of them. In his case, therefore, it may be plausibly argued, that there is no place for the rule singula singulis; because the recorded investiture contains nothing to show that the conditions and fetters of each of the deeds of entail are not identical with the conditions and fetters of the entail set forth in that investiture, and, if they are not the same, that he is entitled to hold that the entails are not duly recorded in the register of sasines.

“We are of opinion, that this argument is not conclusive. The object of the act, 1685, plainly is, that all the conditions and fetters of entails, by which purchasers or creditors can be endangered, should be disclosed by means of two records, on either of which they may rely for information. But while they are secured that no restriction can exist unless it be so recorded, they are not secured, nor are they entitled to infer, that every restriction which is recorded must therefore be operative. On consulting the register of tailzies, the irritant and resolutive clauses in a deed may appear impregnable, while a defect in the record of sasines may render them utterly ineffectual; and so, on the contrary, a defect in the register of tailzies may defeat the most accurately recorded investiture. And as all the restrictions in a tailzie may thus become inoperative, so may any one restriction in whole or in part. This can be of no prejudice to third parties: They are certiorated fully of all dangers to which they can be exposed, but they are not informed whether, or to what extent, those dangers may be avoided. Thus, if part of an estate, which is placed under an entail, be sold by the entailer, or evicted from him before the entail is recorded, the register will show all the prohibitions and irritancies as if they affected that subject, although it has been withdrawn from their operation. On that principle, in one case, the Court refused to allow a tenement to be omitted in recording an entail, Which the entailer had disposed of before his death. In similar circumstances, the heir, in making up his titles, may safely omit that tenement withdrawn from the entail, and that omission will not affect the validity of the entail as to the remainder of the estate. Thus also, if an entailer, under a reserved power to alter, were, by a subsequent deed, to relax the fetters, by granting permission to feu, or lease, or burden, or the like, an omission to insert that subsequent deed in the register of tailzies, or in the investiture, would not render the entail, in so far as it was unaltered, ineffectual against purchasers or creditors, on the ground that the provisions of the act, 1685, had not been complied with: Or, suppose a permission to the same effect were inserted in the entail itself, as an exception to the prohibitory clause, and that exception was omitted in the record by the negligence of the transcriber, it clearly could not be maintained that the record was inoperative quoad ultra, and the whole estate laid open to the diligence of creditors. It follows, therefore, that if all existing conditions and fetters appear in both records, the appearance, in cither record, of others which do not exist, is immaterial. We think that this is not only the sound construction of the statute, but that it admits of no other construction; for while it is indispensable that each record shall show how fur the fetters it exhibits may bind, it is impossible that either of them can show how far those fetters may not bind. To ascertain this, other sources of information must be resorted to.

“Let the statute, so construed, be applied to the present case. On the one hand, it is admitted that the entail, 1767, is recorded in the register of tailzies with perfect accuracy, and on the other hand, it is incontestable that the record of sasines exhibits every prohibition and fetter in that entail, by which the estate can be affected to the prejudice of purchasers or creditors. The only objection to the record of sasines is, that the forfeitures under both entails, inserted in a combined form, are more extensive in appearance than they are in reality, an objection which, on the grounds now stated, we consider of no validity. Thus it appears, that when the heir in possession pleads prescription on the entail, 1776, against the entails, 1767 and 1774, the pursuers can show that, by a rule of construction legitimate in that question, the import of the former is identical with that of the latter; and when the creditors plead, that the fetters of the entail, 1767, do not enter the investiture in terms of the statute, 1685, it is a good answer that the provisions of that statute are fully complied with.

“The entail, 1774, was not recorded, and in consequence of that neglect the estate was sold. But this circumstance does not in any respect affect the argument in so far as the entail, 1767, is concerned.

“We are of opinion, therefore, that by the titles completed by Hubert Graham and his son, W. C. C. Graham, the lands contained in the entail, 1767, are effectually secured against the debts and deeds of the said W. C. C. Graham, and that the said entail is binding and effectual against him in questions with the subsequent heirs of entail.”

Lord Moncrieff made the following addition to this opinion:—

“This case has appeared to me to be attended with very considerable difficulty. But, after giving all the attention in my power to the argument in the papers and from the bar, and considering deliberately the views taken in the above opinion, I am inclined to concur in it, being, on the whole, satisfied that the investitures completed under the charter 1776 are consistent with the strictest application of the rule of the statute 1685. I only think it necessary to add, that I could not have come to this result on some of the grounds of law maintained by the pursuer, and that it is only on the principle of giving the strictest construction to the deeds framed in execution of the statute that I now do so.”

Lords Fullerton and Jeffrey subjoined the following opinion:—

“We concur in the conclusion arrived at in the preceding opinion, viz. that under the titles completed by Robert Graham and his son, William Cunninghame Cunninghame Graham, the lands contained in the entail, 1767, did, and still do remain, subject to the fetters of that entail; and we also concur in the greater part of the reasoning by which that conclusion is supported. The entail 1767 contains all the prohibitions and restrictions necessary for the protection of the estate against the acts and deeds of the heirs in possession. To render such conditions effectual against third parties, it is necessary that they should appear in the titles by which the heirs possess; it being provided by the act 1685, ‘that such tailzies shall only be allowed in which the foresaid irritant and resolutive clauses are insert in the procuratories of resignation, charters, precepts, and instruments of seasing.’ In regard to creditors then, the only question here is, whether the irritant and resolutive clauses of the entail 1767 can be held to be ‘insert’ in the charter and infeftment of 1776?

“For the reasons assigned in the preceding opinion, and even upon the view there taken, viz. that the resolutive clause, as expressed in the charter, embraces certain other lands in addition to those contained in the entail 1767, and may therefore have a more extensive operation, we think that the question ought to be answered in the affirmative.

“But, further, we must be permitted to question whether that view be correct, and whether there is any necessity for resorting, in the present case, to those grounds of decision. It rather appears to us, that the resolutive clause in the charter, the only clause which raises any difficulty, has not, according to the legitimate construction of the charter itself, any more extensive meaning in regard to the lands of Gartmore, than the original entail 1767.

“The entailer, Nicol Graham, executed two procuratories of resignation, each forming a deed of entail. The first, that of 1767, included various lands which shall be termed the lands of Gartmore; and the other, that of 1774, contained the lands which may be designed the lands of Wester Culbowie. Robert Graham, the entailer's second son, executed both procuratories, and expede the Crown charter 1776, obviously for the purpose of making up titles under those entails, to both sets of lands, in so far as they held of the Crown. Accordingly, the charter distinguishes the two estates and the two entails with the greatest precision. There is a separate dispositive clause, first, of the lands of Gartmore, &c.; and, secondly, of the lands of Wester Culbowie, Broich, Broichmiln, &c.; and these dispositive clauses bear to be granted, ‘cum et sub particularibns reservationibus, provisionibus declarationibus, exceptionibus, et clausulis irritantibus et resolutivis postea express, et non aliter, in duabus syngraphis talliae postea mentionat., content., &c’

“By the expression,'postea mentionat.,' reference is clearly made to the quaequidem clause, which is also a double clause, distinguishing the entail of 1767 from that of 1774, There is, first, the mention of the entail 1767: ‘Quaequidera integrae terrae, baroniae, molendina, terrae molendinaiiae, decimae, aliaq. predict. (antedict. terris de Wester Culbowie, Broich, et molendino de Broich, deeimisq. ejusd. exceptis,) contentae fuere in syngrapha talliae per dict. Nicolaum Graham, execut. de data secundo die Marty, anno millesimo septingentesimo sexagesimo aeptimo.’ Here the first entail, 17G7, is described as containing all the lands in the charter, with the exception of Wester Culbowie; and then follows the other part of the quaequidem: ‘Et quaequidem praedict. terrae de Wester Culbowie, Broich, et Broich miln, cum decimis partibus, privileges et pertinen. perprius haereditarie pertinuerunt,' &c.; ‘et (inter alia) in alia syngrapha talliae contentae fuere per dict. Nicolaum Graham, execut. duodecimo die Decembris anno millesimo septingentesimo septuagesimo quarto.’ And the clause concludes with a statement of the resignation of both sets of lands, but still accurately distinguishing between the two different entails, as the sources from which the fetters, in regard to each estate, are respectively derived: ‘Quae integrae terrae, baroniae, molendina, decimae aliaq. praedict. per virtutem dict. duarum procaratoriarum resignations in duahus respectivis syngraphis talliae supramentionat. content, et duorum generalium servitiorum dict. Roberti Graham, ‘&c,’ legitime resignatae et redditae fuerunt in manibus dict. Jacobi Montgomery, ‘&c,’ cum et sub conditionibus, provisionibus, reservationibus, potestatibus, declarationibus, clausulis irritantibus et resolutivis supra expressis in duabus talliae syngraphis supra recitatis contends,’ &c.

Combining, then, the descriptions of the entails in the quaequidem, with the close of the dispositive clause, expressly referring to those descriptions, the two sets of lands bear, ex facie of the dispositive clause, to be disponed under the provisions and restrictions and clauses irritant and resolutive after expressed, contained in two deeds of entail, the one dated 1767, of the lands of Gartmore, and the other dated in 1774, of the lands of Wester Culbowie. The charter then enumerates, in detail, the prohibitions and restrictions; and it is of some importance to observe, that, in the clause immediately preceding that which raises the present question, there is a clear reference to both entails. It is there provided, that Robert Graham, and the other heirs, shall possess the entailed estate ‘virtute dict. duarum syngrapharum talliæ et infeofamentorum desuper consecutorum,’ &c, and shall be bound to insert in the instruments of resignation and infeftments, &c., ‘totas provisiones, declarationes et irritantias dict. talliarum.’ Then follows the combined irritant and resolutive clause, which declares, that if the said Robert Graham, and the other heirs, shall fail to assume the name and arms prescribed, or shall fail to perform the other provisions and conditions, then, and in any of those cases, not only shall all the acts and deeds of omission, commission, &c., be void, and of no effect against the said lands, and no part of the same shall be affected or burdened by those acts, &c, ‘in prejudicio haeredum talliae et provisionis supra specificat. destinat. succedere virtute dict. talliae syngrapharum, cum et sub provisionibus supra specificat. sed etiam persona vel personae ita contravenien. vel deficien. implere conditiones et provisiones suprascript. vel quamlibet earundem, pro seipsis ipso facto, amittent, perdent et forisfacient eorum jura et interesse in dict, terrar. et statum,' &c.

Considering the form and general tenor of this charter, it appears to us, that in reading this clause, as well as the other clauses in the deed, the construction, applicant singula singulis, is not only legitimate, but is the only construction which. can be reasonably admitted. When, as in the present case, a charter conveys two separate parcels of lands, each described as contained in a separate entail, and under the clauses irritant and resolutive in those two entails, and proceeds to enumerate the special clauses irritant and resolutive, it seems to follow that each provision and restriction, in regard to each parcel of lands respectively, is referable to the entail in which each parcel is contained. Thus, although the prohibitory clause against selling or contracting debt is in this charter generally expressed, and without distinguishing, in terms, the lands of Gartmore from the lands of Culbowie, for the obvious reason that the clause is the same in both entails, the meaning of the clause is as unambiguous as if it had been expressly declared, that the prohibition in regard to the lands of Gartmore is referable to the entail of Gartmore, and the prohibition in regard to Culbowie to that of Culbowie. There is still less doubt as to the construction of the clause binding the heirs to hold the entailed lands and estate in virtue of the two deeds of entail; as it can hardly be contended that it imports a provision, not that each estate is to be held by each entail respectively, but that each estate is to be held by both entails. Such being clearly, then, the true reading of the preceding clauses, we humbly conceive that we are offering no violence to the terms of the deed, when, in the immediately succeeding passage, being the combined irritant and resolutive clause, we follow the same course, and hold, applicando singula singulis, that the clause does not import more than that contained in the original entails, viz. a forfeiture of Gart more in the event of a contravention of the entail of that estate, and a forfeiture of Culbowie in the event of the contravention of the entail of Culbowie. Neither are we aware of countenancing, by the adoption of this construction, any relaxation of those rules by which the rights of third parties are understood to be protected. For although the law unquestionably is, that fetters or restrictions shall not be raised, by implications unwarranted by the express terms of the deed, it never has been held, that in construing a clause admitting by bare possibility of two meanings, that which is favourable to the heir and the creditors must necessarily be adopted, although in itself the most inconsistent with the context and general structure of the deed. But the case is attended with still less difficulty when the true nature of the point in dispute is kept distinctly in view. The whole question arises on the resolutive clause in the charter,—a clause which, though of great importance in relation to the rights of third parties, operates only through the medium of its effect against the heir in possession, who contravenes. But again, the only question of construction on this clause is, whether it imposes the penalty of a limited forfeiture, on a limited contravention, agreeably to each entail respectively, or declares a forfeiture of the whole lands contained in both entails, in the event of a contravention of only one? The former is truly the lenient construction, operating against the extension of fetters; and the question is, not that which has usually occurred, whether a strict construction shall be enforced in favour of freedom from fetters, but whether a strict, or rather, as it appears to us, a strained interpretation, shall be adopted, in order to extend the fetters beyond what the natural reading of the deed would authorize?

Upon these grounds, and in addition to the opinion already expressed on the subsistence of the entail 1767, we are of opinion that the titles made up by Robert Graham, by the Crown charter 1776, involve no disconformity to the deeds of entail executed by Nicol Graham in 1767 and 1774.”