Scottish Court of Session Decisions

This was an action of declarator at the instance of William Scott Kerr, of Chatto, against Robert Scott Kerr, and others, asking declarator that the deed of entail of the lands of Over Chatto and others in the county of Roxburgh, dated May 1759, was invalid and ineffectual, and that the pursuer was entitled to hold the lands in fee simple.

The deed contained certain prohibitory, irritant, and resolutive clauses in the following terms:—

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“And also it is expressly provided and declared that it shall not be leisom or Iawfull to the said persons and heirs succeeding to and possessing my estate, to sell, annalzie, wadset, or dispone my said lands and estate, or any part thereof, irredeemably or under reversion, nor yet to contract debts or grant obligations for performance of any matter nor committ treason, nor do any other fact or deed civill or criminall whereby the said estate or any part of it may be adjudged, apprised, forfeited, carried away, burdened, or affected, and in case they contraveen and do in the contrary thereof, it is expressly provided and declared, that not only all the said facts and deeds prohibited as aforesaid shall be void and null in so far as the same may affect my said estate, but also the contraveners shall forfeit and loss their right to my estate, and the same shall fall and belong to the next person hereby appointed to succeed: And it is likewise provided and declared, that in case any of the persons or heirs appointed to succeed to my estate shall be owing debt, or lyable to the performance of any deed, by writings granted or obtained before their succeeding to my estate, then they shall not suffer adjudications or apprisings of my estate to pass against them for the same; and if they contravene and do in the contrary, not only the bonds for the said debts and performance of deeds shall be void and null in so far as the same may affect or burden my said estate, but also the contraveeners shall loss their right to the said estate, and the same shall fall to the person or heir hereby appointed next to succeed: And also, it is hereby provided and declared, that it shall not be leisome or lawfull to the persons or heirs succeeding to my said estate to alter the order of succession hereby settled, nor sett tacks for a longer time than the setter's lifetime or for nineteen years, nor for a less tack-duty than at the time of his succession, at least for a tack-duty less than the value to be ascertained before a judge, nor yett to cutt the young planting upon my estate sooner then twenty years after my death.’ There was no irritant or resolutive clause in the deed, following on or applicable to the before quoted prohibition against altering the succession.

It was further averred by marriage contract, dated 16th December 1806, entered into betwixt the pursuer's late father, Robert Kerr, Esq., of Chatto, and the pursuer's mother, Elizabeth Fyffe, otherwise Elizabeth Bell Fyffe, the said Robert Kerr became bound to resign the said lands and others which he held as heir under the said procuratory of resignation and deed of entail, and he granted procuratory of resignation for resigning the same for new infeftment to himself and the heirs-male of his body and the other heirs called under the said procuratory of resignation and deed of entail, and that under the whole conditions and provisions, and clauses prohibitory, irritant, and resolutive contained in the last mentioned deed.”

The pursuer pleaded, “The prohibition against altering the order of succession, contained in the said deed of entail, not being fenced by any irritant or resolutive clauses, the said prohibition is not valid or effectual, in terms of the Act 1685, cap. 22, and therefore, in terms of the Act 11 and 12 Vict., cap. 36, section 43, the said procuratory of resignation and deed of entail, and also the said marriage-contract are invalid and ineffectual, as regards all the prohibitions therein contained.”

The defender pleaded, “1. On the sound construction of the deed of entail, the general words following the prohibition against contracting debt are effectual to prohibit the alteration of the succession, and the subsequent special prohibition against altering the order of succession ought to be construed as explanatory of the foresaid general words. 2. On the sound construction of the deed of entail, the irritant and resolutive clauses ought to be construed as applicable to the whole of the prohibitions and declarations under which the lands are resigned, including the prohibition against altering the order of succession which is subsequent in position to the said irritant and resolutive clauses.”

The Lord Ordinary ( Kinloch) pronounced an interlocutor repelling the defences, and finding and declaring in terms of the conclusion of the summons, adding this note:—

“The Lord Ordinary can entertain no doubt that in this case the prohibition against altering the order of succession is unfenced by irritant and resolutive clauses. The prohibition maintains an isolated place in the deed. The previous prohibition occurring some sentences before, against selling or contracting debt, ‘or to do any other fact or deed, civil or criminal, whereby the estate, or any part of it, may be adjudged, apprised, forfeited, carried away, burdened, or affected,’ cannot, as the Lord Ordinary thinks, be held to include another prohibition, against altering the order of succession. And the irritancy, which immediately follows this last quoted clause, must, in the Lord Ordinary's estimation, be attached to the immediately previous prohibitions, and to these only.

The question remains, what is the effect of a prohibition to alter the order of succession, sufficient in its own terms, but unfenced by clauses irritant and resolutive? Anterior to the Entail Amendment Act, 11 & 12 Vict., c. 36 (14th August 1848), the Lord Ordinary is clearly of opinion that such a prohibition was, by itself, and without the necessity of any fencing, clauses sufficient inter heredes to nullify any gratuitous deed in favour of a new series of heirs. So it was expressly ruled by the opinions of the whole Judges of the Court, with a single dissentient voice, in the case of Carrick v. Buchanan; and the principle was expressly sanctioned by the after judgment of the House of Lords in that case. (Carrick v. Buchanan, H. of L., 5th September 1844.—Bell's Appeal Cases, 3, 342.) By the 43d section of the Entail Amendment Act, it is provided, that where any tailzie shall not be valid and effectual in terms of the recited Act of the Scottish Parliament, passed in the year 1685, in regard to the prohibitions against alienation and contraction of debt, and alteration of the order of succession, in consequence of defects, either of the original deed of entail or of the investiture following thereon, but shall be invalid and ineffectual as regards any one of such prohibitions, then and in that case such tailzie shall be deemed and taken, from and after the passing of this Act, to be invalid and ineffectual as regards all the prohibitions.’ It is here enacted, that where an entail is ineffectual as regards the prohibition to alter the order of succession, it shall be ineffectual as regards all the other prohibitions. It did not follow that a prohibition to alter the order of succession was ineffectual merely because it was not fenced by irritant and resolutive clauses: it might be ineffectual (as it has been often found to be) from defectiveness of expression, either as regarded the thing prohibited, or the person against whom the prohibition was directed. But by a series of decisions pronounced since the date of the Entail Amendment Act, culminating in that pronounced in the case of

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Rollo v. Rollo, (23d November 1864, M. 3, 79), the Court have so interpreted the Act as to hold it to require that the prohibition against altering the order of succession should be fenced by irritant and resolutive clauses not less than the other prohibitions, in order to become effectual. On these decisions the Lord Ordinary cannot go back, whatever opinion he might have entertained had the point been open.

The marriage contract referred to in the summons was not pleaded to the Lord Ordinary as containing any obligation in favour of the heirs of the marriage, entitling them in that character to insist on the entail being maintained.”

The defenders relaimed.