Scottish Court of Session Decisions

This was an action of declarator and reduction raised by James Clerk Wallace, W.S., against Margaret Isabella Wallace and others, trustees acting under the trust-disposition and settlement of the late William Wallace of Auchinvole in the county of Dumbarton, and also against one of the trustees, William Burt Wright, as an individual. The pursuer concluded for declarator that a deed of entail executed 11th March 1793 by Dr James Wallace of Auchinvole was a valid and subsisting deed of entail, and that he was the person entitled under that entail to the lands. The summons also contained a conclusion for reduction of a fee-simple title which had been made up in 1844 by William Wallace, the last heir of entail. The facts of the case are explained in the following passage from the note of the Lord Ordinary ( Curriehill):—“The deceased Dr James Wallace, by deed of entail dated 11th March 1793, entailed his lands of Auchinvole upon a series of heirs, to one of whom, the now deceased William Wallace, the succession opened in 1821. While he was still in pupillarity a title under the entail was made up in his favour as heir of tailzie and provision to his brother Alexander Wallace by precept of dare constat from the Honourable Charles Fleming, the superior, dated 12th January 1822, and by sasine thereon dated 15th and recorded 16th January in the same year. In 1844, after he had attained majority, William Wallace made up a fee-simple title to the estate as heir of line of the entailer by precept of clare constat from the commissioners of John Fleming, Esq., then the superior, dated 21st and 22d March 1844, and sasine thereon, dated 8th and recorded 30th July 1844. William Wallace died in 1879 leaving a trust-disposition and settlement, dated 6th April 1874, in favour of the defenders Mrs Wright and others as trustees, who completed their title to the estate by notarial instrument, and thereafter by disposition dated 6th and 7th October 1879 they conveyed the estate to the defender William Burt Wright, a nephew of the truster, whose title was completed by recording the disposition in the Register of Sasines on 13th October 1879. William Burt Wright thus stands infeft as fee-simple proprietor of the estate of Auchinvole, and the pursuer, who is the heir entitled to succeed to William Wallace under the tailzied destination, has brought the present action to have the

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fee-simple titles reduced, as being in violation of the entail, to have it declared that he himself, as the next heir of entail, has the only good and undoubted right to the lands, and to complete the titles thereto as heir of entail; and to have the defender William Burt Wright, and the trustees of William Wallace, the deceased heir of entail, removed from the possession of the estate.”

The prohibitory and irritant clauses of the entail were as follows:—“It shall not be in the power of the said George Wallace, nor any of the other heirs succeeding to the lands before disponed, to alter the foresaid order and course of succession, or to sell, alienate, wadset, impignorate, or dispone the said lands, or any part thereof, either irredeemably or under reversion, or to burden or affect the same in whole or in part with debts or sums of money, infeftments of annual-rent, or any other burden or servitude whatever, or to do any act or grant any deed whereby the said lands or any part thereof may be affected, apprised, adjudged, forfeited, confiscated, or any manner of way evicted from the said George Wallace, or any other of the said heirs or substitutes, or the order of succession hereby established, prejudged, hurt, or changed; neither shall it be in their power to set tacks of the said lands, or any part thereof, for any longer space than two nineteen years, or nineteen years and a lifetime, or to set any tack with a diminution of the former rent, except the same be set by way of public roup, to the highest bidder thereat, by reason that a tenant cannot be found at the time who will give the former rent.” “And if the said George Wallace, or any of the other heirs before specified, shall do in the contrary, then all such facts and deeds done and performed by them, and debts contracted, are hereby declared to be void and null, and of no force, strength, or effect whatever.”

The defenders pleaded, inter alia—“(3) There being no valid and subsisting entail of the lands in question, the defenders should be assoilzied.”

On 11th March 1880 the Lord Ordinary sustained this plea and assoilzied the defenders, adding this note:—

“ Note.—[ After the narrative given above]—The objection taken by the defenders to the irritant clause is, that it does not strike at alteration of the order of succession, or at sales or alienation. If the irritant clause had omitted the words ‘and debts contracted,’ I should have had no hesitation in repelling the objection, as the clause would then have applied to the whole prohibitory clause, and would have struck at every contravention of all or any part thereof; and the case would in all substantial points have been identical with the case of Craigmillar ( Little Gilmour v. Gordon, 15 D. 587). But it appears to me that the insertion of the words ‘debts contracted’ in the irritant clause, after the words ‘all such facts and deeds done and performed by them,’ is an attempt to enumerate the prohibited things which are to be annulled, and has the effect of limiting the application of the clause to the things enumerated. The antecedent to the words ‘such facts and deeds’ is thus not the whole prohibitory clause, but only that part of it which prohibits ‘facts [or acts] and deeds,’ whereby the estate may be affected, adjudged, or evicted. The clause appears to me to resemble in all substantial particulars the corresponding clause in the Overtoun case ( Lang v. Lang, M'L. & Rob. App. 871). In that case the entail declared that it should not be lawful for the heirs ‘to sell off or dispose upon any part of the lands and subjects before transmitted, nor to contract debt, or do any other deed whereby the said lands and subjects may be adjudged or evicted from the succeeding members of entail, or their hopes of succession thereto in any measure evaded; and if they do in the contrary, it is declared, in the first place, that all such debts and deeds shall be intrinsically void and null, and of no force, strength, or effect.’

It was held that these words were insufficient to strike at sales and alienations, the principal ground of judgment being that the irritant clause was framed on the theory of enumerating the acts prohibited which it was intended to annul, and that the enumeration being incomplete, the clause was defective. In deciding the latter case of Craigmillar, Lord Fullerton contrasted it with the Overtoun case, as to which he said:—‘In Lang's case the word “deed” was coupled, not with “acts,” but with the word “debts,” and that was very bad company for the word “deeds,” because these two words were the very words of the last member of the prohibitory clause relating to deeds of the nature of encumbrances.’

Now, I think that in the present case ‘all such facts and deeds done and performed,’ read in connection with the words ‘debts contracted,’ immediately following in the irritant clause, must be held to refer back to that part of the prohibitory clause which prohibits contraction of debt, and declares it to be illegal to ‘do any act or grant any deed whereby the said lands, or any part thereof, may be affected,’ &c.; and that it does not extend to sales and alienations, which are expressly prohibited in different language, and in an earlier part of the prohibitory clause. The entail is therefore defective as regards at least one of the cardinal prohibitions; and under sec. 43 of the Entail Amendment Act of 1848 it is wholly invalid and ineffectual.

Another question was raised which it is not necessary to decide, viz., Whether the entail, assuming the fetters to have been all well imposed, is binding to any effect upon the heirs of entail, seeing that it is still unrecorded? I shall merely say that prior to 1848 it had been well settled by many decisions that an unrecorded entail, though ineffectual against onerous creditors or purchasers, was binding inter hæredes; and, as at present advised, I am not prepared to hold that the Act of 1848 has altered that rule.

As the entail, however, is, in my opinion, defective as regards the fetters, the result is that the late William Wallace was truly fee-simple proprietor of the estate, and was therefore entitled to dispose of it, onerously or gratuitously; and that the defenders, to whom he has transmitted the estate, are entitled to be assoilzied with expenses.”

The pursuer reclaimed, and argued—Entails ought to receive a fair though a strict construction. The present case was distinguished from Lang's ( Overtoun case). The words “and debts contracted” did not form an attempt at enumera. tion, but were intended to annul debts in the creditor as well as the act of contraction?

The defender supported the interlocutor of the Lord Ordinary.

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Authorities— Lang v. Lang ( Overtoun case), Nov. 23, 1838, 1 D. 98, and H. of L. Aug. 16, 1839, M'L. & Rob. App. 871; Little Gilmour v. Gordon ( Craigmillar case), March 24, 1853, 15 D. 587; Earl of Airlie v. Ogilvy, Dec. 16, 1852, 15 D. 252, H. of L. March 27, 1855, 2 Macq 260; Sinclair v. Sinclair, Feb. 26, 1841, 3 D. 636.

At advising—