Scottish Court of Session Decisions

This was an action of declarator brought by James Robert M'Turk, or M'Turk Gibson, Esq., against the next heirs of tailzie, to have it declared that the deed of entail under which he holds the lands of Glencrook, in the parish of Glencairn, Dumfriesshire, is not a valid deed of entail. By section 43 of the Entail Amendment Act, it is enacted that where a deed of tailzie is defective in any one of the prohibitions against alienation and contraction of debt and alteration of the order of succession, it shall be held invalid and ineffectual as regards all the prohibitions, and the estate shall be subject to the deeds and debts of the heir in possession. The disposition and deed of tailzie in question was executed in May 1808, and recorded in the Register of Tailzies in January 1810, and in the books of Council and Session in June 1838. In the entail there was a prohibition against altering the order of succession, and against sales and alienations, and the contraction of debts and of deeds, “whereby the said lands and estate may be burdened or evicted.” The irritancy was in the following terms:—“All such deeds to be granted, or debts to be contracted, in so far as the same may affect the said lands and estate, shall be void and null, and the said lands and estate shall be noways affected or burdened therewith, or subjected to, or be liable to be adjudged, or anyways evicted, either in whole or in part, for or by the debts and deeds, legal or voluntary, contracted or granted by any of the said heirs.” At the end of the resolutive clause there were the following words, which it was contended by the defenders supplied any defects in the irritant clause—“And upon every such contravention it is hereby expressly provided and declared, not only that the said lands and estate shall not be burdened with the debts and deeds of the heirs of tailzie as before provided, but also that all acts and deeds contrary to the foregoing conditions and restrictions, or to the true intent and meaning of these presents, shall be of no force or effect against the other heirs of tailzie succeeding to the said lands and estate, and that neither the said heirs nor the said estate shall be anyways burdened therewith.” The Lord Ordinary ( Ormidale) held the entail did not contain the irritant clauses necessary for fencing the prohibitions against sales, alienations, and alterations of the order of succession.

The following is the interlocutor of the Lord Ordinary:—“ Edinburgh, 23 d December 1868.“The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings—Finds that, in respect the deed of entail in question in this case is defective in its irritant clauses, it is not valid and effectual in terms of the statutes libelled on: Therefore repels the defences, and finds, declares, and decerns in terms of the conclusions of the summons; but finds no expenses due.

“ Note.—The entail in question is peculiar in its structure, and in many respects not very clearly or distinctly expressed. The question is whether it can be held to contain all the necessary prohibitive, irritant, and resolutive clauses? The Lord Ordinary is of opinion that it does not contain the irritant clauses necessary for fencing the prohibitions against sales, alienations, and alterations of the order of succession.

Under the second head of what are called in the deed its ‘provisions, limitations, and restrictions,’ there is a prohibition against altering the order of succession; and under the third head there is not only a prohibition against sales and alienations, and the contraction of debts, and of ‘deeds whereby the said lands and estate may be burdened or evicted;’ but also an irritancy in these terms:—‘Declaring hereby that all such deeds to be granted, or debts to be contracted, in so far as the same may affect the said lands and estate, shall be void and null, and the said lands and estate shall be noways affected or burdened therewith, or subjected

Page: 514↓

to, or be liable to be adjudged, or any way evicted, either in whole or in part, for or by the debts and deeds, legal or voluntary, contracted, or granted by any of the said heirs hereby substituted to me, who shall succeed to the said lands and estate, and that whether such debts or deeds shall have been contracted or done before or after their succession to or obtaining possession of the said lands and estate.’ The Lord Ordinary considers it to be clear that there is not in this part of the deed any irritancy that can be held to apply either to sales and alienations, or to an alteration of the order of succession; the irritancy quoted being limited, by the manner in which it is expressed, to debts and deeds of the nature of incumbrances whereby the estate might be burdened or evicted. As authorities so far in point, reference may be made to the Blair-Adam case ( Barclay v. Adam, 8th February 1821, Hume's Decisions, 877, and 18th May 1821, 1 Sh. App. 24); to the Overton case ( Lang v. Lang, 16th August 1839, Maclean and Rob. App. 871); to the Ulbster case ( Sinclair v. Sinclair, 20th February 1841, 3 D. 636); and to the case of Auchterhouse ( Ogilvie v. Airlie, 27th March 1855, 2 Macq 260) in all of which an irritancy of ‘facts and deeds,’ or of ‘debts and deeds,’ was held to apply only to a limited class of things specified in the immediately preceding portion of the prohibitory clause, and not to other matters, such as sales and alienations, or alterations of the order of succession mentioned in an earlier part of it. The relative ‘such’ in the present case makes it an a fortiori one on the point referred to.

But there are, in an after part of the deed here in question, under sub-division second of branch sixth, expressions which the Lord Ordinary understood to be those chiefly relied on by the defenders as supplying the defect in the irritant clause in branch third. Sub-division second of branch sixth commences with a resolutive clause, applicable not only to the prohibitions against sales and alienations, and alterations of the order of succession, but to all the other prohibitions in the deed, and then it bears that ‘upon every such contravention it is hereby expressly provided and declared, not only that the said lands and estate shall not be burdened with the debts and deeds of the heirs of tailzie, as before provided, but also that all acts and deeds contrary to the foregoing conditions and restrictions, or to the true intent and meaning of these presents, shall be of no force or effect against the other heirs of tailzie succeeding to the said lands and estate, and that neither the said heirs nor the said estate shall be anyways burdened therewith.’ It was argued on the part of the defenders that there was here a sufficient irritancy of every act or deed of an heir, in violation of any and all of the prohibitions, including sales, alienations, and alterations of the order of succession. But clear it is that at any rate no such comprehensive meaning can be given to the first part of this clause, which must be held to relate exclusively to the prohibition against the contracting of debts, or granting of deeds, whereby the lands could be evicted, as previously provided, under the third head of the entail. This, however, may not be so clear under the latter part of the clause, which bears that ‘all acts and deeds contrary to the foregoing conditions and restrictions, or to the true intent and meaning of these presents, shall be of no force or effect;’ and if the clause had stopped there, the defender's argument would have been more formidable than it now is, but it will be observed that the clause goes on—and it must be looked at as a whole, for it is not susceptible of division into parts ‘against the other heirs of tailzie, and that neither the said heirs nor the said estate shall be anyways burdened therewith.’ It is only by giving to the expression ‘burdened therewith’ thus used the same meaning as if it had been ‘affected thereby’ that the defenders could with any plausibility maintain that there was here a complete and effectual irritancy applicable to the prohibitions against sales, alienations, and alterations of the order of succession. But the Lord Ordinary does not think that the expression ‘burdened therewith’ can be so dealt with, or can, in the construction of a deed of entail, be diverted from its usual and natural meaning. An estate may be burdened with a debt or a servitude, or with a legacy or gift, or other specific provision, but to say that it is burdened with a sale or entire alienation of it, or with an alteration of the prescribed order of succession, appears to the Lord Ordinary to be a misapplication of the meaning of words, and, indeed, to be unintelligible according to any ordinary or correct use of language. But supposing, in the most favourable view for the defender, that the expression ‘burdened therewith’ is susceptible of two modes of reading, by one of which the result is to give effect to the fetters, and by the other not to give effect to the fetters of the entail, ‘that,’ in the words of Lord Cranworth in Ogilvie v. Airlie, before cited, ‘which does not give effect to the fetters is the one which is prima facie to be presumed to be right, because freedom of dealing with property is that which is to be presumed in every case.’ Or, in the words of Lord Campbell in the Auchindoir case ( Lumsden v. Lumsden, 18th August 1843, 2 Bell's App. 114), ‘If an expression in an entail admits of two meanings, both equally technical, grammatical, and intelligible, that construction must be adopted which destroys the entail rather than that which supports it.’

In support of the same view, it is not unworthy of remark, that there is in a prior part of the deed of entail in question, where the expression ‘burdened therewith’ occurs, the means of ascertaining, if that were necessary, and supposing the expression to be more flexible in its signification than the Lord Ordinary apprehends it to be, what must be held to be its true import in the present instance. Thus, in the third branch of the deed which has been already noticed, the expression ‘burdened therewith’ has been shown to have such a qualified or limited meaning as clearly not to include sales, alienations, or alterations of the order of succession, and it is a settled point in the construction of deeds of entail that when a word of a flexible meaning has been used in a doubtful sense in one part of a deed, if it has occurred in a preceding part where the meaning is clear, it will be interpreted to have the same meaning in both instances. It was so ruled in the first as in the second Prestonfield case ( Dick v. Drysdale, 14th January, 1812, F. C.; and Cunningham v. Cunningham, 9th March 1852, 14 D. 636), and also in the Blairadam, Overton, and Ulbster cases, before cited.

It may be further observed, that the acts and deeds said by the defenders to be irritated, and to include sales, alienations, and alterations of the order of succession, are not declared to be in themselves ‘null and void’ as provided by the Entail Act 1685, cap. 22, but merely to be of no force and effect as against, not the contravener, but ‘the other heirs of tailzie succeeding to the said lands,’ &c.

Page: 515↓

Unless, therefore, the expression, ‘burdened therewith,’ as applicable to the lands in the after part of the clause, is held to be equivalent to a total nullification of every act and deed in contravention of all or any of the prohibitions, it follows that the irritancy is defective.

The result is, that the Lord Ordinary, keeping in view that deeds of entail are subject to the strictest construction, is of opinion that the entail challenged in the present case is invalid and ineffectual, in respect the prohibition against sales, alienations, and altering the order of succession are not fenced by the necessary irritancies; and he has therefore pronounced judgment in favour of the pursuer as concluded for.”

The defenders reclaimed.

Clark and Lee for them.

The following cases were quoted:— Marquis of Breadalbane v. Campbell, 1st April 1841, 2 Robinson's-Appeals, p. 109; Wharncliffe v. Nairne, 12 D. p. 1, 5th July 1850; 7 Bell's Appeals, p. 132; Horne v. Rennie, 3 Shaw and Maclean, pp. 142, 172; Sharpe v. Sharpe, 1 Shaw and Maclean, p. 594 (Hoddum), pp. 622, 623; Graham v. Murray, Duncan, p. 137, 6 Bell's Appeals, p. 441; Lumsden v. Lumsden, 2 Bell's Appeals, p. 104.

At advising—