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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Malcolm v. Kirk [1873] ScotLR 10_518 (21 June 1873)
URL: http://www.bailii.org/scot/cases/ScotCS/1873/10SLR0518.html
Cite as: [1873] ScotLR 10_518, [1873] SLR 10_518
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SCOTTISH_SLR_Court_of_Session
Page: 518↓
Court of Session Inner House Second Division.
v.
Facts:
A deed of entail, otherwise duly fenced with irritant and resolutive clauses, contained certain reservations permitting the contraction of debt, and sale of portions of the estate to pay off the debt thus permitted to be contracted. Held that the entail was nevertheless valid and effectual under the Act 1685, c. 32, and that the provisions of Act 11 and 12 vict. c. 36, consequently did not apply.
This case came up by reclaiming note against the interlocutor of the Lord Ordinary.
The pursuers pleaded—“(1) In respect of the reservations contained in the deed of taillie from the prohibitions thereby imposed, the same does not contain valid or effectual prohibitions against either the contraction of debt, or against sales or alienations, or one or other of them, in terms of the Act 1685, cap. 22. (2) Even assuming that the entail contains the three cardinal prohibitions required by the Act 1685, cap. 22, none of these prohibitions is, or at least one or other of them is not, validly fenced with irritant and resolutive clauses. (3) The entail does not effectually exclude or annul diligence against the estate at the instance of creditors for or in respect of debts contracted by the heirs of entail. (4) The entail being an incomplete and imperfect entail in terms of the Act 1685, cap. 22, is, in virtue of the provisions contained in the Act 11 and 12 Vict. cap. 36, invalid and defective in toto, and the pursuer is entitled to decree as concluded for.”
The defender pleaded that the entail being complete and unassailable he was entitled to be assoilzied with expenses.
The disposition and deed of taillie in question contains, inter alia, a prohibitory clause or
Page: 519↓
prohibitory clauses in the following or similar terms, viz.:—“and further, it is hereby expressly provided and declared that it shall not be in the power of the said Margaret Malcolm, nor any of the heirs of tailzie above named, to sell, annalzie, wadsett, delapidate, nor put away any of the lands above mentioned, nor contract debt, nor grant heritable bonds or other rights and securities therefor whereby the said lands or any part thereof may be evicted or adjudged from them in defraud of the other heirs of tailzie above specified, nor yet to alter this present tailzie and order of succession above narrated.” These prohibitions are immediately followed by, and purport to be fenced with, irritant and resolutive clauses in the following or similar terms, viz.:—“Declaring all such deeds not only void and null, but the person so contravening to have amitted and lost all right and title to the foresaid lands and estate, and the same to fall and devolve upon the next member of tailzie hereby appointed to succeed, as if the contravener were naturally dead; and he or she is hereby obliged, upon the said contravention, to denude themselves of the right of the said lands in favour of the said next member of tailzie, wherein, if they fail, the same is to be prosecuted by declarator, adjudication, or other action competent of the law.”
Immediately after the said prohibitory, irritant and resolutive clauses, the deed of taillie contains the following reservations therefrom in these terms, viz.:—“Reserving always, notwithstanding of the prohibitory clauses above written, power and liberty to the said Margaret Malcolm, and the other heirs of tailzie above specified, to provide their husbands and wives in suitable liferents, by way of locality, not exceeding the half of the present rent of the estate for the time, and to provide their younger children, beside the heir, with competent provisions, not exceeding two years' rent of the said estate; declaring always that neither the said Margaret Malcolm, nor any of the other heirs of tailzie, shall suffer adjudications nor other real diligence to be led and done against the said lands, or any part thereof, for debts warrantably contracted, at least they shall be holden and obliged to purge and redeem the same two full years before expiring of the legal reversion; wherein, if they failzie, they shall lose their right of the said lands in manner foresaid, and it shall be leisome and lawful to the next member of tailzie to purge and redeem the same, and declare their right to the said estate in manner before prescribed. Providing, nevertheless, that it shall be free and lawful to the said heirs of tailzie, or their foresaids, to sell, annalzie, wadset, burden, wadset or otherwise dispone as much of the said lands and baronies as may, by the price thereof, sufficiently satisfy and pay the debts warrantably contracted in manner foresaid, which shall be resting for the time, with annual rent, until the said heirs of tailzie can validly and legally dispose thereof for that effect; which disposition or other right shall be no ground for incurring the foresaid irritancies any manner of way.”
By the Act 11 and 12 Vict., cap. 36, section 43, it is, inter alia, enacted, that where any tailzie shall not be valid and effectual in terms of the said 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; and the estate shall be subject to the deeds and debts of the heir then in possession, and of his successors, as they shall thereafter in order take under such tailzie, and no action of forfeiture shall be competent at the instance of any heir-substitute in such tailzie against the heir in possession under the same, by reason of any contravention of all or any of the prohibitions,” &c.
The interlocutor and note reclaimed against were as follows:—
“ Edinburgh, 20 th July 1872.—The Lord Ordinary having heard the counsel for the parties, and considered the closed record, deed of entail, and process—Finds, declares, and decerns in terms of the conclusions of the libel, and finds no expenses due to either party.
Note.—1. The pursuer maintained that the prohibitions against alienation, contraction of debt, and alteration of the order of succession were not fenced with valid, irritant, and resolutive clauses. His contention was that the word ‘deeds’ in the irritant clause referred only to the granting of heritable bonds or other rights and securities for debt, whereby the estate may be evicted or adjudged—a prohibition which, he says, is separately mentioned in the prohibitory clause. The Lord Ordinary cannot so read the clause. The rule of construction is, that while the prohibitory and irritant clauses of an entail are to be construed strictly, they are at the same time to be construed fairly, giving the words employed, when general, their natural import, especially where that is the meaning the context confers upon them.
After specifying, the prohibitions, which are ample and complete, the deed proceeds as follows:—‘Declaring all such deeds not only void and null, but the person so contravening to have amitted and lost all right and title to the foresaid lands and estate, and the same to fall and devolve upon the next member of tailzie.’ The word ‘deeds’ here used is, it is thought, applicable to and includes sales and alienations of the estate, the contracting of debt, the granting of heritable bonds, and other rights or securities therefor, whereby the estate may be evicted or adjudged, and the alteration of the order of succession, which last is the prohibition that immediately precedes the irritant and resolutive clause above quoted. All these deeds are prohibited, the irritant and resolutive clauses being framed on the principle of referring generally to them as the deeds which are prohibited. The word ‘deeds’ does not occur in the prohibitory clause, and there is nothing to show that it is to be read in a limited sense. On the contrary, the use of the relative ‘such’—‘such deeds’—also shows that these words are to be read as referring to and including everything done in contravention of the prohibitions. The pursuer's argument on this branch of his case depends, the Lord Ordinary considers, upon a strained and unfair interpretation of the deed. The irritancy is quite general. It is free from ambiguity, and, in the opinion of the Lord Ordinary, clearly applies to all deeds in contravention of the whole prohibitions contained in the preceding clause. Any other reading appears to him to be unreasonable and ungrammatical. The resolutive clause, which
Page: 520↓
is closely united to the irritant clause, also confirms this view, inasmuch as it declares the person ‘so contravening to have amitted and lost all right,’—that is, the person contravening by doing, making, or granting what is prohibited in the prohibitory clause. 2. The pursuer further pleads that, as the entail is not valid and effectual, in terms of the Act 1685, c. 22, in regard to the prohibitions against sales, alienation, and contraction of debt, in consequence of defects in the deed of entail, it is invalid and ineffectual as regards all the prohibitions, and subject to his debts and deeds, in respect of the enactment to that effect contained in the 43d section of the Ruthurfurd Act.
In disposing of this plea, it is necessary to keep in view the provisions of the Act 1685, c. 22, concerning tailzies. By that Act it is made lawful to the lieges ‘to tailzie their lands and estates, and to substitute aires in their tailzies with such provisions and conditions as they shall think fitt, and to affect the said tailzies with irritant and resolutive clauses, whereby it shall not be lawful to the airs of tailzie to sell, annalzie, or dispone the said lands, or any part thereof, or contract debt, or doe any other deeds whereby the samen may be apprised, adjudged, or evicted from the others substitute in the tailzie, or the succession frustrat or interrupted, declaring all such deeds to be in themselves null and void.’
But although under this Act it is necessary to a valid entail that the entail shall contain prohibitory, irritant, and resolutive clauses under which sales and alienations of the estate and the contraction of debt thereupon is unlawful, the entail in the present case, after reserving power, notwithstanding the prohibitory clauses, to the heirs of tailzie, to provide their husbands and wives in suitable liferents by way of locality, not exceeding the half of the present rent of the estate for the time, and to provide their younger children beside the heir with competent provisions, not exceeding two years' rent of the estate, expressly provides that it shall be free and lawful to the said heirs of tailzie or their foresaids ‘to sell, annalzie, wadset, burden, or otherwise dispone as much of the said lands and baronies as may by the price thereof sufficiently satisfy and pay the debts warrantably contracted in manner foresaid, which shall be resting for the time, with annual rent until the said heirs of tailzie can validly and legally dispose thereof for that effect, which disposition or other right shall be no ground for incurring the foresaid irritancies any manner of way.’
Under this deed the heir in possession may sell, alienate, or burden as much of the estate as may by the price pay the debts contracted under the power to grant provisions to widows and children to the extent authorised by the entail, which shall be due at the time, with the annual rent or interest thereof, until the heirs of tailzie can dispose of as much of the estate as may be necessary for that effect. In short, the fetters of the entail are not complete against sales, alienation, or contraction of debt, but are invalid and ineffectual, and the heirs, as fee simple proprietors, to that extent can, for debts due in respect of provisions granted to widows and children to the amount authorised by the deed, and the annual rent thereof, sell, alienate, and burden the estate, the rule of law being that heirs of entail are fee-simple proprietors, and have full power over the entailed estate, except in so far as they are fettered. In the exercise of this right the heirs of entail can sell any part of the estate, even the mansion-house, officies, and policies, and in course of time, as they may sell not only for provisions, but for the annual rent thereof, the whole estate may be sold and alienated. There are no clauses in the. entail restricting the granting of provisions by subsequent heirs until those granted by previous heirs had been paid, or declaring that the provisions shall only affect the rents and not the fee, and the only provision besides those already noticed is, that the heirs of entail shall not suffer adjudication or other real diligence to be led against the estate for these debts, at least they shall purge and redeem the same two years before the expiry of the legal reversion. This they may do by selling or disponing as much of the estate as will pay the provision, debts, and annual rents.
The question is new and attended with difficulty. The Lord Ordinary has carefully considered the able and full argument of counsel, and the numerous cases cited at the debate, and he is humbly of opinion that, as the entail in the present case is not complete, and valid, and effectual in terms of the Act 1685, c. 22, in regard to prohibitions against alienation and the contraction of debt, it is, in respect of the provisions of the 43d section of the Rutherfurd Act, invalid and effectual as regards all the prohibitions.
The defenders maintain that, as by the 21st section of the Rutherfurd Act the heir in possession liable to pay or provide for provisions to younger children granted by former heirs is empowered to charge them upon the fee and rents of the estate, other than the mansion-house, offices, and policies, by granting bond and disposition in security for the same, with all the usual clauses of such a deed, the provisions in the present entail to a similar effect cannot be held as invalidating it. But there is a great difference between powers conferred upon heirs of entail by statute, and rights excepted or reserved in a deed of entail. The former do not invalidate the entail; but under the latter the fetters of the entail are not applied by the entailer, and the entail is consequently not valid or effectual in terms of the Act 1685, c. 22.”
The defenders having reclaimed, the case came up before their Lordships of the Second Division, who, on 15th March 1873, pronounced the following interlocutor:—“The Lords appoint this cause to be heard before the Judges of this Division, with the addition of three Judges of the First Division,” &c.
The cause was debated before seven Judges.
At advising—
Page: 521↓
The grounds upon which this action is based are distinctly enough stated in the pursuer's pleas, but these pleas have not all been dealt with in the argument before us. On the contrary, the sole ground upon which the pursuer has maintained in the course of that argument that the entail is invalid, is that which is contained in the first plea, taken in connection with the fourth. There are, therefore, obviously questions in this case which cannot be at present disposed of. Whether the pursuer intends to insist upon the 2d and 3d pleas as separate grounds of action we have not been made aware, but it is necessary that I should state very distinctly that we have no intention at present to dispose of these pleas, having heard no argument upon the subject. The first plea in law is “In respect of the reservations contained in the deed of tailzie from the prohibitions thereby imposed, the same does not contain valid or effectual prohibitions against either the contraction of debt, or against sales or alienations, or one or other of them, in terms of the Act 1685, c. 22.” And the 4th plea, following out that objection, maintains that the entail, being incomplete and imperfect in terms of the Act 1685, is invalid and defective in toto, in virtue of the provisions contained in the Act 11 and 12 Vict. The objection to the validity of the entail is thus made to depend entirely upon the reservations from the prohibitions; and the clause which contains these reservations is to be found on p. 7 of the printed deed. It is to be assumed, of course, that all the cardinal prohibitions are well and effectually inserted in this deed, and that these have been duly fenced with irritant and resolutive clauses. But, that being done, the entailer proceeds thus,— (His Lordship quoted the reservation clause of the deed of entail, as above narrated). The Lord Ordinary is of opinion that the effect of these reservations is to destroy or neutralise the prohibitions against sales and alienations, and the prohibition against the contraction of debt. But I cannot help thinking that his Lordship is under some misapprehension as to the precise effect of these reservations, for he says in his note,” Under this deed, the heir in possession may sell, alienate, or burden as much of the estate as may, by the price, pay the debts contracted under the power to grant provisions to widows and children to the extent authorised by the entail, which shall be due at the time, with the annual rent or interest thereof, until the heirs of tailzie can dispose of as much of the estate as may be necessary for that effect.” Now, here his Lordship is obviously under the impression that the power of sale may be exercised to a larger extent than is, in reality, permitted by the deed. The provisions to widows can never be the cause of a sale of a part of the estate at all, because that provision is to be made by way of locality only. A locality is not a debt, and there is no provision made for converting it into a debt. It is an appropriation of a particular part of the lands to the widow in liferent. That does not permanently alienate any part of the estate, nor is it in any proper sense a contraction of debt. But, at all events, it is impossible, under this clause of reservation, that an heir of entail could be permitted to alienate any part of the estate for the purpose of satisfying the claim of the widow under a locality deed. The power of sale is confined entirely to debts which are contracted for the purpose of making provisions to younger children to the extent—to each family of younger children—of two years' rents of the estate. That is the full extent of it. The Lord Ordinary says further, “In the exercise of this right, the heir of entail can sell any part of the estate, even the mansion—house, offices, and policies; and, in course of time, as they may sell not only for the provisions, but for the annual rent thereof, the whole estate may be sold and alienated.” Now, his Lordship is here again under a mistake, because, in the exercise of such a power as this, the heir in possession would never be permitted to sell the mansion-house, offices, or policies. The practice in this respect is quite accurately stated by Mr Sandford in his book upon Entails, at p. 385, where he says, “When the deed of entail contains a power of sale for the purpose of paying off the provisions to younger children, burdening the entailed estate, the heir in possession must execute it under the authority of the Court of Session. Upon a petition presented to them for that purpose, the Court will authorise a sale of certain parts of the entailed lands, and appoint a trustee in order to carry the same into effect, who is responsible, as under the statutes, for redeeming the land-tax, &c., that the purchase money be properly applied.” It is quite plain, therefore, that the heir of entail, proposing to exercise this power, must come to the Court to have the portion of the estate that is to be sold selected and appointed by judicial authority. Neither am I very much moved by the suggestion of his Lordship that, in the exercise of this power the whole estate may be sold and alienated within any short period of time. This entail was made in the year 1725, and we are not informed that the estate has yet disappeared, notwithstanding the lapse of a century and a-half. And, therefore, the effect of the reservation, practically, is certainly not what the Lord Ordinary attributes to it. But, although his Lordship has certainly ascribed far greater effect to this clause than is really due to it, the question is still an important one, and very well worthy of consideration, whether this reservation does not so neutralise or derogate from the cardinal prohibitions of the statute as to invalidate the entail. I can quite understand that there might be such reservations as would make the prohibitions of the entail practically of no avail at all, and enable one heir of entail, or it may be two or three heirs of entail in succession, entirely to dilapidate the whole estate; and a very serious question would then arise, whether that was an entail under the Act 1685 at all, or whether it was not a deed unworthy of the name of an entail, although taking in some respects the form of the statutory provision. Is this a case of that kind? Does the reservation from the provisions go that length?
Now, in determining whether this is a valid entail under the Act 1685, I cannot but go back, in recollection, to a great many deeds of entail which we have seen, and a great many cases which have been decided prior to the passing of the Entail Amendment Act, in which there is permission to contract debt and to sell portions of the estate for the purpose of paying off the debt thus permitted to be contracted; and I am not aware that prior to the passing of the Entail Amendment Act in 1848 it ever was doubted that these were valid and effectual entails under the Act 1685. It is quite unnecessary to particularise cases, but there is a
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But, then, we come to the question, What is the effect of the 43d section of the Entail Amendment Act? And we approach the construction of that section with this, I think, quite settled, that independent of the Entail Amendments Act, this is a valid entail under the Act 1685. Now, what does that section enact? It provides,” that where any tailzie shall not be valid and effectual in terms of the said 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; and the estate shall be subject to the deeds and debts of the heir then in possession,” &c. Now, what is the kind of invalidity that is here contemplated and expressed? It is invalidity in consequence of defects either of the original deed of entail or of the investiture following thereon. The natural construction of these words appear to me to be that it includes, and includes only, objections either to one of the prohibitions, that it is imperfectly expressed, or omitted, or in some way blundered, or that it is not duly fenced with irritant and resolutive clauses. And, if that be the meaning of the first part of this section, which regards the prohibitions taken cumulatively, what shall we say is the meaning of the words which follow,” but shall be invalid and ineffectual as regards any one of such prohibitions.” Plainly the true construction must be “shall be, as regards any one of such prohibitions, invalid and ineffectual, in consequence of defects either of the original deed of entail, or of the investiture following thereon.” Now, is this such an entail? Is this entail invalid under the Act 1685, in consequence of defects in any one of the prohibitions? My answer to that question is decidedly in the negative. There is no defect at all. The prohibitions are perfectly good, and are well fenced; and it is a good entail, therefore, under the Act 1685. If it were to be said that a defect,” as regards any one of such prohibitions,” may mean a relaxation of any one of the prohibitions, I answer at once that that is not the true construction of the words. I think it is a total invalidity of one of the prohibitions that is to lead to the result here contemplated. And this construction is confirmed and fortified when we consider what was the well—known mischief intended to be remedied by this enactment. When there was a defect in one of the prohibitions of a deed of entail,—say, for example, in the prohibition against the contraction of debt,—the heir of entail was entitled to contract debt, and could do it effectually, but he could not sell the estate. And that was undoubtedly a very unfavourable position in which to place both the heir and the estate. Again, take the case (which occurred in the case of Boyle v. Cochrane) that there is a defect in the prohibition against sale, but no defect in the prohibition against the contraction of debt, the heir of entail is fee-simple so far that he can sell the estate whenever he likes, but his creditors cannot touch it. And that, certainly, is a very anomalous position also, and one hardly contemplated, one would say, by the Act 1685, the policy of which was to exclude both creditors and purchasers, and not one without the other. But still, as the law stood before the passing of the Entail Amendment Act, that was the effect of a defect in one of the prohibitions. Now, it was to remedy that, I apprehend, that the 43d section was enacted, and it can, in that point of view, apply only to a case in which the heir in possession is absolutely free as regards one of the prohibitions. But what, I have said on the construction of the 43d section must not be understood as weakening what I said before as to the possibility of an entail being so destroyed by exceptions and reservations as substantially to leave no valid or effectual prohibitions, although they may be there in point of form; because, although that might not fall under the very words of the 43d section, I apprehend that such an entail as that would be invalid under the Act 1685. Therefore, upon the whole matter, I have come to the conclusion, and I must say without any difficulty, that the Lord Ordinary's interlocutor is wrong, and that the defenders are entitled to absolvitor in so far as regards that portion of the case which has been argued before us.
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The other Judges concurred without any further observations, and the following interlocutor was pronounced:—
“Recall the interlocutor of the Lord Ordinary submitted to review, assoilzie the defenders from the whole conclusions of the summons, and decern; find the defenders entitled to expenses, and remit to the Auditor to tax the same and to report.”
Counsel for Pursuer and Respondent—Solicitor—General ( Clark) Q.C., and Duncan. Agents— Tait & Crichton, W.S.
Counsel for Defender and Reclaimer— Wataon & Muirhead. Agent— A. Stevenson, W.S.