Scottish Court of Session Decisions

The first of these actions was at the instance of Sir Charles Ochterlony of Ochterlony, Baronet, the heir of entail in possession of the estates of Ochterlony, against his eldest son David Ferguson Ochterlony and the other heirs of entail, for declarator that the entail under which the pursuer held the estates was not valid and effectual in terms of the Act 1685, cap. 22, and that the pursuer was entitled to the lands in fee-simple in terms of the 43d section of the Entail Amendment Act 1848. The pursuer founded upon a defect in the clause of the deed prohibiting alienation, the word “irredeemably” in that clause (which was in the form usual in entails) being written upon an erasion or otherwise vitiated. It was not ultimately disputed that the word “irredeemably” was erased, and that the deed was therefore invalid as a strict entail.

The said deed of entail had been executed in the following circumstances:—In 1824 Sir David Ochterlony, Baronet, a Major-General in the East Indian Army, and residing at Delhi, executed a trust-deed of settlement and commission, whereby he empowered his trustees and commissioners therein named to purchase lands in Scotland, and gave the following directions to them as to the settlement thereof—“And which lands when so purchased, whether taken in my name directly or in their own in the first instance but for my behoof, as may be thought most advisable, I farther hereby direct and appoint and authorise and empower my said trustees and commissioners foresaid to settle by strict entail on myself and the heirs hereinafter pointed out, and to execute such deed or deeds of entail with all prohibitory, irritant, and resolutive clauses, conditions, and provisions required and usually inserted in the strictest entails, and all other deed and deeds, instrument and instruments (with liberty to me to revoke or alter the same by any writing signed by me or by my authority), as shall or may be necessary by the law of Scotland.” The destination in the deed of entail to be executed by the trustees was to be in favour of the truster and the heirs-male of his body, whom failing to the heirs-female of his body, whom failing to the eldest lawful son of the body of Roderick Peregrine Ochterlony, then deceased, the truster's natural son, and to the heirs-male of the body of such I eldest son of the said Roderick Peregrine Ochterlony, whom failing to various other substitutes.

Sir David Ochterlony died in 1825, leaving no lawful issue, and before his trustees had purchased lands in Scotland in terms of the trust. The pursuer, Sir Charles Metcalfe Ochterlony, was the eldest lawful son of the said Roderick Peregrine Ochterlony.

The trustees having purchased certain lands in Scotland (now called Ochterlony), and Sir Charles Ochterlony having come of age, the lands were conveyed to him as directed by the trust-deed, by disposition and deed of entail dated 28th March 1840. Under this deed of entail Sir Charles Ochterlony possessed the estates until 1876, when the defect in the clause prohibiting

Page: 386↓

alienation was discovered, and this action was brought.

Mr David Ferguson Ochterlony was the only person called as defender who entered appearance, and the second action was a counter action at his instance against Sir Charles Ochterlony. The summons in this second action concluded (1) for declarator that the defender Sir Charles had no right to the estates except under conditions of strict entail, as directed in Sir David's trust-deed, and that any disposition of the lands which might be found invalid as a strict entail was ultra vires of the trustees; and (2) in event of its being found that the deed was invalid as a strict entail, for declarator that Sir Charles was bound to execute a strict entail of the lands in favour of himself and the series of heirs specified in the trust-deed, and for reduction of the said deed of entail.

Mr D. F. Ochterlony pleaded—“(1) The truster having directed a strict entail to be made, the defender has no right to the lands as fee-simple proprietor, or otherwise than under the conditions of a strict entail. (2) The trustees having had no power to convey the lands except under the conditions of a strict entail, the disposition and deed of entail executed by them, in the event that it shall be found invalid as a strict entail, is ultra vires and reducible. (3) The defender having had no right to obtain a conveyance of the lands except as under strict entail, in terms of the truster's directions, is bound to execute and record a valid disposition and deed of strict entail as concluded for.”

Sir Charles Ochterlony pleaded—“(2) The said disposition and deed of entail being invalid and ineffectual as regards the prohibition against alienation of the said lands and estate, is invalid and ineffectual as regards all the prohibitions, and the defender is entitled to hold the said lands and estate in fee-simple, and to exercise at pleasure all the powers of the proprietor of a fee-simple estate in respect thereto, in terms of the Act 11 and 12 Vict. cap. 86, sect. 43. (3) The said disposition and deed of entail having been executed by the mandatories of the said Sir David Ochterlony in the bona fide execution of the trust, is in the same position in all respects, and in regard to all rights which may be claimed in virtue of it, as if it had been executed by the said Sir David Ochterlony himself. (4) The said disposition and deed of entail being a good and valid disposition of the said lands, the defender having been duly infeft thereon and in possession of the said lands under the same since 29th April 1840, and not having been one of the said deceased Sir David Ochterlony's trustees, nor a party to the said trust-deed, nor under any obligation in reference thereto, is entitled to absolvitor from the whole conclusions of the summons, with expenses.”

The Lord Ordinary pronounced the following interlocutors and notes in the two actions respectively:—

“ Edinburgh, 24 th October 1876.—The Lord Ordinary having considered the cause, assoilzies the defenders from the conclusions of the action, and decerns: Finds them entitled to expenses; allows an account thereof to be lodged, and remits the same to the Auditor to tax and report.

Note.—By a trust-deed of settlement and commission, dated 10th March 1824, Sir David Ochterlony directed his trustees and commissioners to purchase lands in Scotland, and to settle them on himself and a series of heirs under a deed of strict entail.

Sir David died before the execution of the trust, and the trustees having purchased the lands, disponed them under what was intended to be a settlement of strict entail in favour of the pursuer and the heirs of his body and the series of heirs therein mentioned. The deed of entail was executed in March and April 1840, and infeftment in favour of the pursuer followed thereon in November 1840.

The pursuer has discovered that the word ‘irredeemably’ occurring in the prohibitory clause is written on an erasure or is vitiated. He has accordingly raised this action against his son and the other heirs-substitute of entail in order to have it found and declared that the entail is defective, and that by virtue of the 43d section of the Entail Act of 1848 he is entitled to possess the lands in absolute property.

The Lord Ordinary is satisfied that the word ‘irredeemably’ is vitiated, and that it cannot be read as part of the deed. He accordingly pronounced an interlocutor to that effect dated 13th June 1876.

The action is defended by Mr David F. Ochterlony, as the next heir-substitute of entail. He has also raised an action of declarator and reduction against the pursuer, to have it found that the pursuer is not entitled to possess the lands except in conformity with the trust-deed, and to set aside the deed of entail which was executed by Sir D. Ochterlony's trustees.

The Lord Ordinary entertains no doubt that if the pursuer is entitled to possess the lands under the deed of entail of 1840, he is by virtue of the 43d section of the Entail Amendment Act entitled to hold them in absolute property. For if the entail is defective in so material a part as the prohibition against irredeemable sales it is by the Act ineffectual in all respects.

But the defender maintains that the pursuer is not entitled to possess the estate under this deed, and that it must be set aside as disconform to the directions of the trust-settlement of Sir D. Ochterlony.

The pursuer does not dispute that by the trust-deed the trustees were directed to dispone the lands under a settlement of strict entail. But he maintains that as the deed of entail was delivered and received in good faith, and as the error was one which might have escaped notice without any imputation of negligence, the trustees have executed their office, and that his rights must be determined by reference to the deed of entail as the only legitimate title under which the lands can be held. He urged that if Sir David had himself made the entail the right of the heir in possession must be determined by the deed of entail as he made it, and that the same rule must apply to a deed executed by trustees who are the mere mandatories of the truster.

The Lord Ordinary is unable to sustain this argument. It is not disputed that the trustees had no power to execute any other deed than one of strict entail. The pursuer as beneficiary under the deed is not entitled to avail himself of a mistake to the prejudice of the other beneficiaries, and as the Court could themselves have executed the trust, they can, it is thought, correct any error which has been committed by the trustees.

Page: 387↓

“The analogy which the pursuer attempts to draw between the present case and that of a deed executed by the proprietor himself is fallacious. If the latter deed is not properly framed the Court cannot reform it. The rights of the persons who take benefit by it must be determined by its condition as it left the hands of the maker. But where the trustees have a duty to perform, the Court are bound to see that they duly perform it, and to set aside any deed which is inconsistent with the instructions under which they act.

The pursuer further maintains that by reason of the long period for which he has possessed the lands under the existing title his right to possess under that title cannot now be questioned. If prescription had run, the argument of the pursuer would have been sound. But the Lord Ordinary is of opinion that no length of time short of the prescriptive period will exclude the right of the beneficiaries to have the estate settled in conformity with the instructions contained in the trust-deed.

“The Lord Ordinary has therefore assoilzied the defenders, and has given decree in favour of Mr Ochterlony in the action at his instance.”

“ Edinburgh, 24 th October 1876.—The Lord Ordinary having considered the cause, finds and declares that the defender has no right to the lands of Balmadies and others mentioned in the summons, except under conditions of strict entail, and other conditions contained or referred to in a trust-deed of settlement and commission executed in duplicate, the one duplicate dated 10th March, and recorded in the Books of Council and Session 15th November 1824, and the other dated 15th April 1824, granted by the deceased Sir David Ochterlony, Baronet, a Major-General in Her Majesty's army in the East Indies, and letter of instructions by him relative to the said trust-deed, dated 25th June 1825, and recorded in the Books of Council and Session as a probative writ on 3d December 1830; that the defender never had, and has not now, any right to hold or possess the said lands and others as fee-simple proprietor thereof, or otherwise than subject to the said conditions; that the trustees under the said trust-deed were not entitled to convey the said lands and others to the defender and the series of heirs therein specified except under conditions of strict entail, and that any disposition or deed conveying the said lands and others to the defender which may be found to be invalid as a deed of strict entail was and is ultra vires of the said trustees: Further finds, reduces and declares in terms of the reductive conclusions of the summons, and decerns: Finds the pursuer entitled to expenses; allows an account thereof to be lodged, and remits the same to the Auditor to tax and report.

Note.—The Lord Ordinary refers to the note to his interlocutor of this date (24th October 1876), pronounced in the action of declarator at the instance of the present defender against the pursuer.”

Sir Charles Ochterlony reclaimed in both actions.

Argued for him—(1) The deed of entail in question having been executed by the mandatories of Sir David Ochterlony, was to all effects in the same position as if it had been executed by Sir David himself, in accordance with the maxim qui facit per alium facit per se, and it could not be disputed that if Sir David had himself executed the deed, Sir Charles would have been entitled to hold the lands in fee-simple, in terms of the 43d section of the Rutherfurd Act. (2) That section of the Act contemplated an existing state of matters—given a deed of entail defectivein one of the cardinal prohibitions, and an heir possessing the estate under that entail, the provisions of the section applied. The heir possessing under the defective entail had an absolute right to take advantage of the defect and to acquire the estate in fee-simple. If the statute had contemplated that the provisions of the section should not apply to an entail made by trustees, it would have said so. If the contention on the other side were sound, the provisions of the section might be rendered null, and an absolutely unchallengeable entail executed by the intervention of trustees. (3) The argument that the provisions of the Act did not apply to this deed because it was not only invalid as an entail but invalid as a deed, was unsound. The deed was not invalid to all effects. It was a deed which had been granted and accepted in good faith, and which had given a valid title to Sir Charles, under which he had possessed the estates for 37 years.

Argued for Mr D. F. Ochterlony—The measure of Sir Charles' right was Sir David's trust-deed, and under that deed he was entitled to the estates only under the fetters of a strict entail. The entail which the trustees had executed was a deed which they had no power to grant, and which was therefore bad ab initio. The trust had never been executed, and Mr Ochterlony as beneficiary under that trust was entitled to demand that it should now be carried into effect.

At advising—