Scottish Court of Session Decisions

These were conjoined actions of declarator and declarator and adjudication at the instance of James Howden, C.A., trustee on the sequestrated estate of James Rocheid of Inverleith, in the county of Mid-Lothian, against Charles Henry Alexander Frederick Camillo Everhard James John Rocheid, heir of entail in possession of Inverleith and Darn-chester, and the other heirs called in the deed of entail—the principal conclusion of the action being, to have it found and declared that the disposition and deed of entail of the said lands, executed in 1749 by Mrs Elizabeth Rocheid, “was not, during the possession of the bankrupt, the said James Rocheid, of the subjects contained therein, and is not now a valid and effectual tailzie in terms of the Act of the Parliament of Scotland, passed in the year 1685, chapter 22, entituled ‘Act concerning Tailzies,’ in regard to the prohibitions against alienation and contraction of debt, and alteration of the order of succession, but was, and is, invalid and ineffectual under the said Act in regard to all or some of the said prohibitions; or, at least, that under the said Act the said subjects were not held by the said James Rocheid under the fetters of a strict entail, but were fee-simple in his person, liable to his debts and deeds, and have been transferred to the pursuer as trustee foresaid, and now stand vested in him by force of the said sequestration, and act and warrant of confirmation in his favour freed from all limitations or entail fetters, for behoof of the creditors of the said James Rocheid.”

The prohibitory clause provided that “it shall not be lawfull to nor in the power of the said Alexander Kinloch and the heirs whatsomever of his body, or of any other of the heirs succeeding to the said lands and estate above disponed, to alter, innovate, or change this present tailzie and settlement or yet the order of succession hereby prescribed, nor to do any other deed that may import or inferr any alteration, innovation, or change of the same directly nor indirectly; nor to sell, annalzie, or dispone either irredeemably or under reversion; nor yet to wadsett or burden with infeftments of annualrent or any other servitude or burden my lands and estate above written or any part thereof; nor to sett tacks nor rentalls of the same for any longer space than nineteen years or for the setter's lifetime and always without diminution of the rentall except where such diminution happens of necessity as when a sufficient tenant cannot be found to pay the whole rent, in which case the same is to be sett by publick roup to the highest offerer; nor yet to contract debts upon the said estate, nor even to committ treason (as God forbid); nor to do any other fact or deed of omission or commission, civil or criminal, directly or indirectly, in any sort whereby the said lands and estate hereby disponed or any part thereof may be affected, apprised, adjudged forfeited become escheat confiscat or any manner of way evicted from the said Alexander Kinloch and the heirs whatsomever of his body, or from the other heirs before specified succeeding to the said lands and others foresaid, or this present settlement and tailzie, or the succession to the said estate prejudged, hurt, or changed.” The irritant and resolutive clause provided “that if the said Alexander Kinloch or the heirs whatsomever descending of his body or the other heirs before specified and the descendants of their bodies succeeding to the said lands and estate hereby disponed, shall contraveen or fail to fulfil and obey and perform the several conditions and provisions above exprest, or any one of them, or shall act contrair to the said restrictions and limitations, or any of them; that then and in these or any of these cases not only such facts, deeds, debts, omissions, and commissions, done, contracted, neglected, or committed contrary hereto, with all that may follow thereupon shall be in themselves void, null, of no avail, force, strength, or effect, as if the same had never been done, contracted, neglected, or committed, in so far as concerns the lands and estate above written, which nor no part thereof shall be anyways affected, burdened, or hurt therewith in prejudice of the said Alexander Kinloch, and the heirs descending of his body, or any other of the heirs above specified, appointed to succeed by virtue of thir presents; but also the person or persons so contraveening or ffailzieing to fulfill the before written conditions and provisions, or any of them, shall for themselves only ipso facto amitt, lose, and tine their right and interest in my said lands and estate, and the samen shall become void and extinct, and the said lands and estate shall devolve upon and belong to the next heir of tailzie

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who would succeed if the contraveener were naturally dead, albeit descending of the contraveener's own body; and it shall be lawful to such next heir to pursue and obtain declarators upon the contravention or ffailzieing to observe and fulfil any of the said provisions or conditions or obtain adjudications of my said lands and estate, or to obtain themselves served retoured infeft and seased therein as heir to the person who died last vest and seased in the same before the contraveener had right, or to use any other method which may be legall or formall at the time for establishing the right to the lands hereby disponed in their person, and that without respect to any alteration, innovation, or change made or to be made by the contraveener, and without the burden of any debts, deeds, omissions, or commissions of the said contraveener what-somever which anyways in law may import or be interpret to import a contravention of the said clauses or one or other of them contained in this present tailzie, and the person so succeeding and all his or her subsequent heirs of tailzie shall be lyable to the same clauses, conditions, provisions, and irritancies.”

The pursuers pleaded inter alia—2. “The subjects or right described in the deed of tailzie, and continued in the whole subsequent titles, being a mere pro indiviso right, there is no valid tailzie.

“3. The prohibitions and clauses irritant and resolutive of the deed of tailzie not being applicable, at least to the extent of a pro indiviso half thereof, to the specific lands allocated under the decrees of division to the deceased James Rocheid, and belonging to him at the time of his death, there was no valid tailzie of said lands, and the same were possessed by him in fee-simple, and were, and are, subject to his debts and deeds.

4. As the deed of tailzie does not contain the statutory prohibition against contraction of debt, or any irritant or resolutive clause applicable to such a prohibition, the subjects or right described in the entail are open to the diligence of the creditors of the bankrupt.

5. The prohibition in the tailzie against selling, alienating, or disponing is ineffectual, because it is not directed against the subjects or right intended to be entailed.

6. The resolutive clause of the deed of tailzie is inoperative and invalid, because the heir taking upon a contravention by sale or alienation, cannot make up a title without representing the contravener.

7. The irritant and resolutive clauses of the deed of tailzie not being insert in the instrument of resignation following thereon, and that instrument being a part of the investiture, the provisions of the tailzie are invalid and ineffectual.”

The Lord Ordinary ( Mure) repelled the defences, so far as stated against the pursuer's title to sue, and also a defence of res judicata: found that the entail was a valid and effectual entail under the provisions of the Act 1685, c. 22, sustained the defences on the merits, and assoilzied the defenders. On the merits of the case, his Lordship said, in a note—“On the merits of the action, the discussion before the Lord Ordinary related mainly to the objection to the irritant and resolutive clauses of the entail, which run very much into one another, based on the omission of the words ‘or shall act contrair to the said restrictions and limitations’ from the resolutive branch of the clause, and which is a point not free from difficulty; because, reading the clause by itself, it is so worded as to be calculated to lead to the inference that the words ‘conditions and provisions’ were used by the entailer in a different sense from the words ‘restrictions and limitations,’ and that, while the former were used as applicable only to things directed to be done, the latter were alone used with reference to things prohibited. But when the entail is examined as a whole, the Lord Ordinary does not think that the words “conditions and provisions “can be held to be there used in such a limited senso. For neither in the prohibitory clause, nor indeed throughout the entail, are the expressions “restrictions and limitations’ to be met with except in the irritant clause, while in the prohibitory clause itself the three cardinal prohibitions against sale, contraction of debt, and alteration of the order of succession, are introduced as provisions: and as the expression “conditions and provisions’ are sufficient to covet the ordinary limitations and restrictions of an entail, and are, moreover, the only words used in the statute 1685 as descriptive of the statutory prohibitions, the Lord Ordinary has come to be of opinion that the resolutive clause, in the present case, is not open to objection, and that very much on the same grounds as those embodied in the judgment of the late Lord Anderson in the case of Todd's Trustees v. Rocheid, founded on by the defender, but which, as it was not proved to have been instituted for behoof of the general body of Mr Rocheid's creditors, cannot, it is thought, constitute a res judicata against the present action.

“The other objections raised by the pursuer to the entail, with the exception (1) of that founded on the fact that the subjects entailed were originally a pro indiviso right, and (2) that taken to the prohibitory clause as defective in regard to the contraction of debt, were not insisted on before the Lord Ordinary. And although these two objections were not given up it was not disputed that they were ruled by previous decisions in this Court. The Lord Ordinary has repelled the first of them in respect of the decision in the case of Stewart v. Nicolson, Dec. 2, 1859, and the other upon the authority of the case of Arbuthnott, 27th May 1865.”

The pursuer reclaimed.