Scottish Court of Session Decisions

This was an action of declarator raised by Colonel Alastair M'Iain M'Donald of Dalchosnie, against John Alan M'Donald, his brother, and Misses Elizabeth Moore Menzies, Adriana and Jemima M'Donald, his sisters, as being the whole heirs of entail at present in existence called to the succession of the estates of Dalchosnie, Loch Garry, and Kinloch-Rannoch, under a deed of entail made by the late General Sir John M'Donald, K.C.B., and registered on 18th November 1837. The summons concluded for declarator that this deed of entail is not a valid and effectual tailzie in terms of the Act of the Parliament of Scotland, passed in the year 1685, chap. 22, entituled “Act concerning Tailzies,” and that the foresaid lands and estates of Dalchosnie, Loch Garry, and Kinloch-Rannoch, as particularly described in the said deed of entail, belong to the pursuer in fee-simple, and free from the whole conditions, and prohibitory, irritant, and resolutive clauses contained in the said deed of entail.

Sir John M'Donald was the father of the pursuer, and proprietor of the estates above mentioned; he died on the 24th June 1866, and was survived by his wife, who died on 7th November 1872. Sir John's brothers, who were called as substitutes in the entail, died before him without issue, and the whole of his surviving children were defenders in this action, as being the whole heirs presently in existence after the pursuer.

The deed of entail contained certain conditions which the pursuer and the other heirs of entail were directed to obey, including a direction to use the surname and armorial bearings of M'Donald, to possess the lands only under the deed of entail and to purge and redeem adjudications and other legal diligence against the lands. These conditions were followed by prohibitory clauses, containing sundry restrictions and limitations; inter alia, that the wives and husbands of the heirs of entail should be excluded from all right of terce or courtesy in the entailed lands, and that it should not be in the power of the pursuer or any of the other heirs of entail to alter the order of succession thereby established, or to sell or alienate the lands therein contained, or to burden them with debt, or to do any act or grant any deed, directly or indirectly,

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whereby the lands or any part of them might be affected or in any manner of way evicted from the pursuer or any other of the heirs. Then followed certain irritancies, in case the pursuer or any of the other heirs of entail failed to purge adjudications or other legal diligence against the fee of the estates. The next clause in order was the resolutive clause, in the following terms:—“And with and under this irritancy, as it is hereby conditioned and provided, that in case the said Alastair M'Iain M'Donald, or any of the other heirs succeeding to the lands and estate before disponed, shall contravene the before written conditions, provisions, restrictions and limitations herein contained, or any of them, that is, shall fail or neglect to obey or perform the said other conditions and provisions, and each of them, or shall act contrary to the said other restrictions to be hereinafter added and appointed by me, excepting as is before excepted, then and in any of these cases, the person or persons so contravening shall, for him or herself only, ipso facto amit, forfeit, and lose all right, title, and interest which he or she hath to the lands and estate before disponed.” The pursuer maintained that the resolutive clause was defective, as not duly enumerating or referring to the antecedent restrictions or prohibitions against altering the order of succession, selling or alienating the lands, or burdening them with debt. Further, that the only restrictions therein referred to were certain other restrictions “to be hereinafter added and appointed” by the entailer, whereas the deed of entail contained no subsequent restrictions against altering the order of succession, selling or alienating the lands, or burdening them with debt. By section 43d of the Act 11 and 12 Vict., cap. 36, it is 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.”

The pursuer pleaded that—(1) The deed of entail was not a valid and effectual tailzie in terms of the Act 1685, cap. 22. (2) The prohibitions against alienation, contraction of debt, and altering the order of succession, were invalid and ineffectual. (3) The irritant and resolutive clauses were also defective and incomplete, and that the entail was therefore invalid. (4) In virtue of section 43d of the Act 11 and 12 Vict., cap. 36, the deed of entail was to be deemed invalid and ineffectual as regards all the prohibitions contained in it.

The defenders claimed to be assoilzied with expenses, as the deed of entail was in all respects valid and effectual.

The Lord Ordinary (Mackenzie) pronounced the following interlocutor, with note:—

“ Edinburgh, 5th December 1863.—The Lord Ordinary having heard the counsel for the parties, and considered the closed record and deed of entail libelled on, sustains the defences, assoilzies the defenders from the conclusions of the summons, and decerns: Finds the pursuer liable in expenses, &c.

Note.—The pursuer pleads in the record that the entail of Dalchosnie is defective in the prohibitory, irritant, and resolutive clauses; but the only objection insisted in at the debate was that which is directed against the sufficiency of the resolutive clause.

The resolutive clause is in the following terms—‘And with and under this irritancy, as it is hereby conditioned and provided, that in case the said Alastair M'Iain M'Donald or any of the other heirs succeeding to the lands and estate before disponed shall contravene the before written conditions, provisions, restrictions, and limitations herein contained, or any of them; that is, shall fail or neglect to obey or perform the said other conditions and provisions, and each of them, or shall act contrary to the said other restrictions to be hereinafter added and appointed by me, excepting as is before excepted, then and in any of these cases the person or persons so contravening shall, for him or herself only, ipso facto amit, forfeit, and lose all right, title, and interest which he or she hath to the lands and estate before disponed; and as such right shall become void and extinct, so the said lands and estate shall devolve and accrue and belong to the next heir appointed to succeed, albeit descended of the contravener's own body, in the same manner as if the contravener were naturally dead and had died before the contravention.’

The pursuer maintains, in support of his objection to the validity of this resolutive clause, that the entailer throughout the deed of entail makes a distinction between those clauses which are directed against selling or alienating the estate, burdening it with debt, and altering the order of succession, and the other clauses of the deed by which the heirs are obliged to use and bear the arms of ‘M'Donald,’ to possess the estates under the entail and no other title, to engross the destination and whole clauses in the titles and investiture of the estates, and to purge and redeem adjudications. The former, it is said, are dealt with in the entail under the name of ‘restrictions’ or ‘restrictions and limitations,’ while the latter are denominated ‘conditions and provisions.’ And the defect in the resolutive clause is stated to be, that it is not directed against the three cardinal restrictions and limitations, but only against the conditions and provisions last above mentioned.

The Lord Ordinary is of opinion that there are no sufficient grounds for thus limiting the application of the resolutive clause, and that its terms include and are directed against the whole conditions, prohibitions, and clauses irritant and resolutive contained in the deed.

At the outset of the entail, the entailer, ‘upon the conditions, restrictions, and provisions after specified,’ conveyed the estates. At the end of the dispositive clause it is set forth that the estates are conveyed ‘always with and under the conditions, provisions, restrictions, limitations, exceptions, clauses irritant and resolutive, declarations and reservations aftermentioned.’ The same terms are used in the procuratory of resignation. Then the clause by which the heirs are taken bound to bear the name and arms commences with the words—‘with and under this conditions always, as it is hereby expressly provided.’ The clause which relates to possessing under the entail, engrossing the destination and whole clauses of the deed in the titles, and purging adjudications, commences with the words—‘as also with and under these

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conditions that.’ That part of the prohibitory clause which is directed against altering the order of succession, and which also debars all right of terce or courtesy, commences with the words—‘and with and under the restrictions and limitations after written, as it is hereby expressly conditioned and provided.’ There is an exception in this clause, by which the heir in possession is empowered, on the forfeiture or attainder for treason of any of the apparent or presumptive heirs, to renew the entail, but with and under the whole conditions, restrictions, exceptions, and irritancies herein contained.’ Then follows the remainder of the prohibitory clause in regard to sale, alienation, and contraction of debt, which commences with the words—‘and with and under this restriction and limitation also, as it is hereby expressly conditioned and provided.’ The two clauses by which the heirs are restrained from doing any act or granting any deed by which the estates may be adjudged forfeited, or evicted, and by which the heirs are prohibited from letting the lands with diminution of rental and on payment of a grassum for any longer space than the life of the granter, &c., are called ‘restrictions and limitations.’ Then follows a ‘condition, as it is hereby specially provided and declared,’ by which the heirs may excamb to the extent prescribed by statute. And the provision that the lands shall not be affected or burdened with, or adjudged or evicted by or for, the deeds and debts of the heirs, is styled a ‘limitation and condition.’ The resolutive clause also commences with the words—‘and with and under this irritancy, as it is hereby conditioned and provided.’ And by the irritant clause ‘all debts contracted, deeds granted, and acts done contrary to the conditions and restrictions,’ are declared null.

It is impossible, the Lord Ordinary thinks, to read the entail without being satisfied that it does not afford any sufficient grounds for the pursuer's argument, and that the entailer does not deal with ‘conditions and provisions’ as one thing, and with ‘restrictions and limitations’ as another; but that, on the contrary, the words ‘conditions and provisions’ are used in the resolutive clause as applying to the whole conditions, prohibitions, and clauses irritant and resolutive of the entail. This appears not only from a consideration of the whole deed, but also from a consideration of the manner in which these words are used in the resolutive clause.

It is not disputed that the first part of the resolutive clause is sufficiently general to cover all acts of contravention. But it is said that these general terms are limited by the definition which follows them, namely, ‘ that is, shall fail or neglect to obey or perform the said other conditions and provisions, and each of them.’ The use of the word ‘other’ creates no difficulty, seeing that it has been held in the case of Stirling v. Moray ( 7 D. 640) that this word must be held as referring to the resolutive clause itself, which is a condition and provision of the deed distinct from the ‘before-written conditions, provisions, restrictions, and limitations,’ or as referring to the irritancy condition and provision which immediately precedes the resolutive clause, and which binds the heirs to purge adjudications, and resolves their right in the event of failure to do so within a specified time. Now, that being the case, the words ‘the said other conditions and provisions’ can only mean in this entail the aforesaid conditions and provisions, that is, those which are immediately before specified in the resolutive clause itself as ‘the before-written conditions, provisions, restrictions, and limitations.’ The entailer, therefore, has in this clause itself defined what he includes in and means by the words ‘conditions and provisions.’ Farther, that meaning is in exact accordance with the import and effect of the word ‘provision,’ which is of the most comprehensive nature, and includes the whole terms and stipulations of a deed, including the fetters of an entail.

The pursuer further maintained that the words in the resolutive clause, ‘shall fail or neglect to obey or perform,’ are insufficient to cover contravention of the cardinal prohibitions, and that they can only be held as applying to failure or omission to perform those conditions first mentioned in the deed, such as taking the name and arms, and possessing under the entail, which are to be implemented faciendo, and that accordingly they limit the signification of the words ‘conditions and provisions’ to those conditions. The Lord Ordinary is of a different opinion, and he considers that the words ‘fail to obey,’ ‘neglect to perform,’ are in themselves sufficient to cover not only every neglect to perform those positive conditions, but also all acts of an heir done in contravention of the three cardinal prohibitions.

The words which follow those already noticed in the resolutive clause do not, it is thought, restrict in any respect the meaning and application of the prior part of the clause. These latter words are—‘or shall act contrary to the said other restrictions to be hereinafter added and appointed by me.’ There is nothing inconsistent here with the preceding part of the clause. The restrictions here mentioned are the provisions which may be ‘hereinafter added,’ and they are those set forth in the latter part of the deed. The pursuer maintained that after the word ‘restrictions,’ there had been an omission of the words ‘hereinbefore contained, or any other restrictions,’ and that the insertion of these words is necessary to make a valid resolutive clause. The Lord Ordinary can find no warrant for this supposition. This part of the clause is, as it stands, very similar to the corresponding part of the resolutive clause in the Finzean entail. The question is, not whether anything is omitted, but whether the clause as it stands in the deed is sufficient to meet the provisions of the Act 1685, c. 26, which requires, in order to an effectual entail, ‘irritant and resolutive clauses, whereby it shall not be lawfull to the airs of tailzie to sell,’ alienate, burden with debt, or alter the order of succession.

The Lord Ordinary considers that the concluding part of the resolutive clause also confirms the view which he has taken of the clause, because it is thereby provided that ‘then, and in any of these cases, the person or persons so contravening’ shall forfeit all right to the estate.

The case of Holmes v. Cunninghame ( 13D. 689), founded on by the pursuer, is not, it is thought, in point. The decision in that case proceeded upon the failure to insert the resolutive clause of the entail in its integrity in the charters and sasines by which the entail was feudalized. No doubt some of the Judges who decided that case gave opinions as to the effect of the resolutive clause in the charters, supposing it to have occurred in a deed of entail. But the structure of the entail in the present case is altogether different, so that these opinions are inapplicable. The case of A dam v. Farquharson,

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( 2 D. 1162, and Bell's App. 295), the resolutive clause in which is very similar to that now under consideration, supports the view taken by the Lord Ordinary of the import and meaning of that clause in the present entail.

The prohibitory and irritant clauses appear to the Lord Ordinary to be in all respects valid and effectual.”

Colonel M'Donald reclaimed, and argued—The mistake in this deed arose from the leaving out of a small portion of the style which was being copied. [Russell's Entail Styles, p. 290, and Juridical Styles.] “Conditions” refer to the power of doing and performing, whereas “restrictions” refer to restraints upon the power of the proprietor. [Adam v. Farquharson; Rennie v. Horn; Holmes v. Cunninghame.] There is authority to show that words so omitted cannot be introduced ( Hamilton), and there is none for saying that the Court can supply words so as to cure a blundered deed ( Speid; Eglinton).

The defenders (respondents) argued—If the deed is intelligible and sensible without the words, no omission is to be presumed ( Sharp v. Sharp; Yolland v. Yolland).

Authorities cited:— Holmes v. Cunninghame, 13 D. 689; Adam v. Farquharson, 2 D. 1162, and 3 Bell's App. 295; Stirling v. Moray, 7 D. 640; Rennie v. Horn, 3 Bell's App. 170; Sharp v. Sharp. 1 S. and M'L. 594; Yolland v. Yolland, 4 Macq. 585; Speid v. Speid, 15 S. 618; Eglinton v. Montgomerie, 7 D. 425; Hamilton v. Lindsay, Bucknell, and Others, 8 Macph. 323, 7 Scot. Law Rep. 205.

At advising—