Scottish Court of Session Decisions

This was a petition, under section 4 of the Rutherfurd Act, presented by Charles Henry Scott Plummer, heir of entail in possession of the lands and estates of Middlestead, &c., to charge the estates with a debt or incumbrance of £6000.

Section 4 of the said Act provides—“That it shall be lawful for any heir of entail, being of full age, and in possession of an entailed estate in Scotland, with such and the like consents as by this Act would enable him to disentail such estate, to sell, alienate, dispone, charge with debts or incumbrances, lease and feu such estate, in whole or in part, and that unconditionally, or subject to conditions, restrictions, and limitations according to the tenor of such consents, the authority of the Court of Session being always obtained thereto in the form and manner hereinafter provided; and such heir of entail shall be entitled to make and execute, at the sight of the Court, all such deeds of conveyance and other deeds as may be necessary for giving effect to the sales, dispositions, charges, leases, or feus so made and granted.”

The petitioner held the estates under a deed of entail dated 21st October 1799, and was born in October 1859. He was therefore entitled, under sec. 2 of the same Act, to disentail without any consents, being an heir of entail born after 1st August 1848, of full age, and holding under an entail dated before 1st August 1848.

The Lord Ordinary ( Trayner) remitted to Mr H. B. Dewar, S.S.C., to inquire into the proceedings. Mr Dewar in his report doubted whether, seeing that sec. 4 only enabled heirs to avail themselves of the powers thereby conferred, “with such and the like consents” as would by the Act enable them to disentail, the petitioner could avail himself of the provisions of sec. 4, as he was in a position to disentail without any consents.

The Lord Ordinary thereafter pronounced this interlocutor—“Having heard counsel for the petitioner, appoints the petition, with this interlocutor and note, to be boxed, with the view of reporting the same to the Judges of the First Division of the Court, and grants warrant to enrol.

Note.—The petitioner, who is the heir of entail in possession of the lands of Middlestead, &c., seeks the authority of the Court to charge the estate with a debt or incumbrance of £6000. The entail is dated and recorded in the year

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1799, and the petitioner was born in October 1859. He is therefore an heir of entail born after 1st August 1848, is of full age, and possesses under an entail dated before 1st August 1848. In these circumstances the petitioner would be entitled under the provisions of the Rutherfurd Act (11 and 12 Vict. cap. 36, sec. 2) to acquire the entailed estate in fee-simple by executing, under the authority of the Court, an instrument of disentail, without the necessity of obtaining any consent from other heirs of entail. He is, however, not desirous of disentailing the estate, but seeks, as I have said, to burden it with a debt, and he maintains that he is entitled, under the authority of the Court, to burden the estate, as he could certainly have disentailed it, without the consent of any of the next heirs of entail.

By section 3 of the Rutherfurd Act provision is made for disentailing lands by the heir in possession with certain consents; and section 4 provides that ‘it shall be lawful for any heir of entail, being of full age, and in possession of an entailed estate in Scotland, with such and the like consents as by this Act would enable him to disentail such estate, to sell, alienate, dispone, charge with debts or incumbrances,’ &c. &c. The question therefore arises, whether under section 4 just quoted an heir of entail can burden the entailed estates without any consent whatever when he is in circumstances which enable him to disentail without consents?

It appears to me that sections 3 and 4 were not originally intended to apply to cases where the heir in possession was in a position to take advantage of the provisions of section 2, it probably not having been anticipated that an heir who could disentail would content himself with merely burdening the estate. If this had been anticipated, the words of section 4 would probably have run thus, ‘with such and the like consents, if any,’ or ‘if necessary,’ &c. But although section 4 (under which alone authority to burden is provided for) appears from its language to contemplate the necessity of some consent, I am humbly of opinion that the petitioner's application may be granted without requiring any consent from the next heir or heirs. The greater power of disentailing the estate without consents seems to me to include the lesser power of burdening without consents. Besides, when the Act provides that ‘such and the like consents’ must be had to authorise an incumbrance on the property, as are needed to disentail, and also provides that no consents whatever are necessary to disentail, I think it follows that no consent is necessary to burden, or otherwise the consent to burden would be something different, and not ‘such and the like’ as is required for a disentail. If any consent is necessary it is scarcely possible to discover from the Rutherfurd Act whether the consent of the next heir would be sufficient, or whether the consent of the three next heirs would be required. I understand that this question has never arisen before, and I have therefore deemed it right to report it to the Court for authoritative decision.”

Argued for the petitioner—The words “if any” were implied in sec. 4. There was no reason why an heir should not do directly what he could do indirectly by disentailing, charging, and reentailing.

At advising—