Scottish Court of Session Decisions

In 1682, William Little of Libberton executed an entail of that estate in the form of a bond of tailzie and procuratory of resignation, proceeding on the usual narrative of his desire that the lands should remain and abide “with the heirs of tailzie after named.” At the close of the destination, a clause of return was inserted in these terms—“which all failzieing to return to me, my nearest heirs and assignees whatsoever, the eldest heir-female always excluding the rest, and succeeding without division.” The following was the tenor of the prohibitory clause:—“And farder it is hereby expressly provydet and declared that it shall nowayes be lawfull to the airs of taylzie and provision above spe'it, or any one of them, except the airs-male of my own body, or to any that shall be named and designed be me at any time herefter, to sell annalzie and dispone the lands, barronie, teynds, tenements, @-rents, and others above rehearsed, or any pairt thereof, either irredeemablie or undir reversion, by granting wodsetts or infeftments of @-rent, or to burden the samen with any servitude or other burden, or to sett tacks or rentalls for longer space then during their lyftymes or interests, neither shall it be lawfull nor in the power of them or any of them to contract debt, or doe any other deed whereby the said lands barronnies and others, or any pairt thereof, may be comprysed, adjudged, or otherwayes evicted or forfaulted in prejudice of this present taylzie, or any designation which shall herefter be made by me, and thes who are to succeed be vertue of the same.” This was immediately followed by irritant and resolutive clauses, in these terms:—“And if they, or any of them, contravein the provision above mentioned, either by disponing or committing any cryme or delinquence, or by contracting any debt, or doing any deed, the said deeds and all and every one of them shall not only be voyd and null, in so far as concernes the lands, barronie, teynds, tenements, @-rents, and others above mentioned, so that they shall not be affected therewith, in prejudice of the succeeding airs of taylzie and provision; but also the contraveiners and the descendents of their bodies shall lose and forfault ther right to and interest in the said estate, and the same shall be devolved upon, descend, and pertain to the persons who shall be nixt, and have right to succeed to the samen, be vertue of this present taylzie, free of all deeds done and contracted be the contraveiner, and free of all tacks sett be him.”

Titles were made up, under the entail, soon after the entailer's death, and the lands had been continuously held under the tailzied investiture by several successive heirs, when, in 1807, the succession opened to Walter James Little Gilmour, who also made up titles, and was infeft as heir of entail. In 1837, he raised an action against the substitute heirs, concluding for declarator, that the entail contained “no prohibition against altering the order and course of succession thereby appointed;”—“that accordingly the pursuer has full and undoubted power and right to expede a new investiture of the said lands, &c. in favour of himself, his heirs, and assignees in fee-simple,” and without any of the conditions, prohibitions, &c. of the entail; “and, farther, that upon the pursuer expeding such new investiture aforesaid, the destination of tailzie, and the whole conditions and restrictions, &c.” in the said entail, “are entirely done away, put an end to, and extinguished, and that the pursuer has the absolute and unlimited right of property of the said whole lands, &c. and has full and undoubted power, right and title to sell the whole of the said lands, &c. and to dispose thereof at pleasure as fully as any unlimited fiar or proprietor can do,” without being subject to any challenge at the instance of the defenders. The summons also contained subordinate conclusions, dependent on the main conclusion, and which regarded the pursuer's right to two sums of money, which, under certain local statutes, had been consigned in bank as the surrogate of portions of the entailed estate that had been taken at a valuation for the purposes of these statutes.

Defences were lodged by one of the substitute heirs of entail, Mrs Janet Buchan Sydserf or Cadell, and her husband, Hew Francis Cadell of Cockenzie. They pleaded that the prohibitory clause was sufficient.

The pursuer contended that although there was a distinct prohibition to sell or “contract debt, or doe any other deed whereby the said lands, barronnies, and others, or any pairt thereof, may be comprysed, adjudged, or otherwayes evicted or forfaulted in prejudice of this present taylzie, or any designation which shall herefter be made by me, and thes who are to succeed be vertue of the same”—there was a total blank as to any prohibition against altering the order of succession. And it was impossible to rear up this substantive and essential prohibition by implication. But, separatim, even if implication were admissible, the structure of the clause was such as to exclude the implication in question, because the “other deed” prohibited, which followed immediately after “debt,” was set forth as a deed whereby the lands might be “comprised, adjudged, or otherwise evicted or forefaulted,” which could not by any force of reasonable implication be made to include a deed merely altering the order of succession. No entail had yet been sustained similar to this. Thus the Roxburghe entail, besides declaring it unlawful to alienate or contract debts, also separately added the words, “nor yet do any other thing in hurt or prejudice of thir presentis, and of the foresaid tailzie or succession in haill or part.” This last was in itself a substantive prohibition, fully equivalent to that required by the words of the statute 1685 against “frustrating or interrupting” the succession. And on examining all the entails which had been sustained, it would be found that they contained a prohibition so expressed as justly to bring them within the same class with the Roxburghe entail; while in those deeds which had been found ineffectual, there was at least as much to fence the entail as in the present instance. In the case of Eastfield, for example, the prohibition was “to contract debt, nor do any other deed whereby the said lands may be apprised, adjudged, or any manner of way evicted, in prejudice of this present tailzie, or of those who, by virtue thereof, shall be then to succeed.” That entail was held invalid, and, a fortiori, the Libberton entail must be held to be so. As to any plea that a prohibition against alienation, however general, imported or implied a prohibition against altering the succession, the contrary was fixed beyond all controversy. But if the prohibitory clause were defective, it was equally fixed that it could not be eiked out by any reference to the irritant and resolutive clauses. And the effect of a clause of return had been expressly pleaded and disregarded in the case of Eastfield. ¹ There was, therefore, no ground on which the Libberton entail could be supported.

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¹ Stewart (Argaty), July 8, 1789 (15535).—Brown (Eastfield), May 25, 1808 (Dict. voce Tailzie; Appendix, No. 19.)—Innes (Roxburghe), June 23, 1807 (Dict. voce Tailzie; Appendix, No. 13.)—Maclaine (Lochbuy), June 23, 1807 (Dict, voce Tailzie; Appendix, No. 14.)—Rowe (Strathbrock), Feb. 9, 1837 (ante, XV. 500.)—Bruce (Earlshall), Nov. 21, 1815 (F.C.)—Fraser Tytler (Burdsyards), March 9, 1826 (ante IV. 541; or new ed. 549.)—3 Ersk. 8, 23, and 29.—Also cases of Craigievar and Blairhall, in 1816, not reported.

The defenders contended, that, as there was no set form of words requisite for a strict entail, and no necessity to insert a separate clause for each of the three leading prohibitions, and as it was enough if the whole prohibitory clause, taken together, contained the three prohibitions within it, the terms of the Libberton entail were sufficient and complete. In particular, the Lochbuy entail was not distinguishable from that of Libberton, and it had been held valid. That entail declared it not lawful to sell any part of the estate of Lochbuy, “nor to contract debt, or do any other deed whereby it may be adjudged or evicted from the succeeding members, or their hopes of succession thereto in any manner evaded.” This was scarcely so strong as the Libberton entail, which declared it not lawful to sell any part of the estate, “or to contract debt, or do any other deed whereby the said lands, baronies, and others, or any part thereof, may be comprised, adjudged, or otherwise evicted or forefaulted in prejudice of this present tailzie, or any designation which shall hereafter be made by me, and those who are to succeed by virtue of the same.” And there was no intelligible principle of construction, according to which the Libberton entail could be held defective in the prohibition against altering the order of succession, if the Lochbuy entail was complete in that respect, as had been decided by a judgment which was since considered a ruling decision.

The defenders farther pleaded that both the prohibition to “annalzie,” or alienate, ¹ and also the prohibition to do any deed by which the lands might be “evicted” ² in prejudice of the tailzie, imported, severally, or at least necessarily implied, a prohibition against gratuitously altering the succession. They also pleaded, that the true import of the prohibitory clause became more apparent by reading it in connexion with the irritant and resolutive clauses; and, separatim that, independently of the right competent to heirs-substitute under a strict entail, the defenders were entitled to resist the gratuitous alteration of the succession, in respect that the destination terminated in a clause of return to the granter and his heirs whomsoever. In a question inter heredes, and where there were effectual prohibitions against debt, or alienation, the pursuer, being a successor titulo lucrativo, was not entitled gratuitously to defeat the substitution. ³

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¹ 2 Dow's Appeals, p. 90 and p. 213, import of term “alienate.”

² Hein. ad Pand. Lib. XXI., t. 2. sec. 69, Quid evincere?

³ Don, Feb. 5, 1713 (15591), and July 14, 1713; Robertson's Appeals, p. 76—Lord Strathnaver, Feb. 2, 1728 (15373), and July 4, 1729—Craigie and Stewart's Appeals, p. 32—Forbes, July 13, 1753; Elch. voce Tailzie, No. 52—Affd. on appeal, Feb. 11, 1754—Ure, July 17, 1756 (4315)—2 Mackenzie, b. 3, t. 8, p. 325; 3 Ersk. 8, 23 and 27—Duff, June 27, 1807, (Dict. voce Member of Parliament, Appendix, No. 13); Dicta per Lord Brougham in Cathcart, July 18, 1831; (5 W. and S. Appeals, 196.)

The Lord Ordinary found “that the deed of entail libelled does not contain a prohibition against altering the order of succession; and, therefore, repelled the defences, and decerned and declared in terms of the libel, but found no expenses due.” ^*

The defenders reclaimed. It was then stated by them to the Court, that in a cause pending in the Second Division of the Court, the authority of the decision in the Lochbuy entail had been called in question, and that cases had been ordered by the Second Division for the purpose of giving the fullest consideration to the subject. Their Lordships of the First Division thereon ordered cases, in preparing which the pursuer did not dispute the authority of the case of Lochbuy, but insisted that it was essen-

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* “ Note.—On considering the decisions of the Court, in the various cases most nearly resembling the present, it must be admitted that the clauses which have been found to import a prohibition against altering the order of succession, approach so very nearly in structure and in expression to those in which a different conclusion has been arrived at, as to render it a matter of difficulty to lay down, with absolute precision, the line that separates them. But still, looking at the terms of the clause in the entail of Libberton, the Lord Ordinary entertains no doubt on which side of that line it must be understood to fall.

“In the cases of Roxburghe and Lochbuy, both decided on the 23d of June, 1807, it was evidently held by the Court that the expression, in the one case, ‘any other deed to the hurt and prejudice of these presents, and the foresaid tailzie and succession,’ &c.; and, in the other, ‘any other deed by which the lands might be adjudged or evicted from the succeeding members, or their hopes of succession thereto in any manner evaded,’ did embrace, in general, all deeds prejudicing or evading the order of succession, as distinct from, or in addition to, the deeds by which the lands might be adjudged or evicted.

“On the other hand, in the case of Eastfield, which was in dependence at the same time, and finally decided shortly afterwards, the clause against contracting debt, or ‘doing any other deed, whereby the said lands and others foresaid, or any part thereof, may be apprised, adjudged, or any manner of way evicted, in prejudice of this present tailzie, or of those who, by virtue thereof, shall be then entitled to succeed,’ was found ineffectual to prevent an alteration of the order of succession.

“In regard to the grounds of the opinion of the Court, the reports, in all the three cases, are very unsatisfactory. The only distinction on which it appears to the Lord Ordinary possible to reconcile the latter decision with the former, is, that in the latter case, the term ‘any other deed’ did not apply, in general, or directly, to deeds ‘in prejudice of this present tailzie or of those who, in virtue thereof, should be then entitled to succeed,’ but only to deeds leading to that prejudice, through the medium of adjudication or eviction, a description which was not understood to apply to deeds altering the order of succession. Accordingly, the Lord Ordinary does not understand that the authority of the case of Eastfield has ever been questioned; and, upon comparing the clause in the entail of Eastfield and that in the entail now under consideration, it is impossible to deny that it is a case exactly in point.

“In regard to the case of Strathbrock, also founded on by the defenders, it does not appear to the Lord Ordinary to touch the present question, by impairing in any way the authority of the case of Eastfield. For there, after the prohibition against contracting debt, by which the lands may be apprised or adjudged, the clause proceeds, ‘or to do any other fact or deed, in prejudice of the said tailzie and the persons above named or their foresaids,’ so that the case clearly fell within the operation of the principle established in the decision of the case of Roxburghe.”

tially distinguished from the present case, inasmuch as it contained a sub stantive prohibition against altering the succession, expressed in words which were fully equivalent to those of the statute 1685. On considering the cases, the following opinions were delivered:—