Page: 609↓
In a petition under the 4th section of the Rutherfurd Act for authority to feu an entailed estate, except the mansion-house, offices, and policies, at such times, in such portions, and for such feu-duties as the petitioner should think fit, the next heir lodged a deed of consent by which he consented to the petitioner granting feus as proposed without application to the Court, on condition that he first signified his consent to the terms of the deeds. Petition granted.
Robert Christie was heir of entail in possession of the estate of Durie and others, in the county of Fife, under deeds of entail dated prior to 1 st August 1848. He was born on 24th July 1848. His eldest surviving son, Robert Maitland Christie, who was the heir apparent under the entails, was born on 11th April 1857.
On October 27th 1886 Robert Christie presented a petition for authority to sell and feu parts of the said entailed lands, and, inter alia, craved the Court “( Fifth) to grant warrant and authority to the petitioner to feu the said entailed lands and estate of Durie, so far as not already feued, or such portions thereof as he may think proper, but excepting therefrom the mansion-house,
Page: 610↓
offices, and policies of the same, and that at such times, in such portions, and for payment of such feu-duties as the petitioner may think fit,” all in terms of the Act 11 and 12 Vict. cap. 36, sec. 4; “to approve of a form of feu-charter for said general feuing purposes as the form to be made use of therefor from time to time as the successive feus shall be granted by the petitioner; to authorise and empower the petitioner to grant said feus in the form or forms so approved of from time to time as he shall think proper, subject to any conditions or stipulations which your Lordships may think proper.” By section 2 of the Rutherfurd Act an heir of entail born before 1st August 1848, in possession of an estate under a tailzie dated prior to 1st August 1848, may disentail such estate if he obtains the consent of the heir apparent, such heir having been born subsequent to 1st August 1848, and being at the date of granting such consent twenty-five years old, subsequently altered to twenty-one, and subject to no legal incapacity. By section 4 of the same Act it is provided—“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.”
Robert Maitland Christie granted a deed of consent, the following passage in which referred to the part of the petition above narrated—“And further, I do hereby, subject to the conditions after expressed, consent to the said Robert Christie granting feus of the said entailed lands and estate, so far as not already feued, or of such portions thereof as he may think proper, but excepting therefrom the mansion-house, offices, and policies of the same, and that at such times, in such portions, and for payment of such feu-duties as he may think fit, all without any further procedure; and particularly, without the feu-charters, feu-contracts, or other deeds of conveyance as shall be necessary for giving effect to the said feus so made and granted being executed at the sight of the said Court, and without the said Court approving of a form of feu-charter for said feuing, as the form to be made use of therefor, from time to time as the successive feus shall be granted by the said Robert Christie, and without his being authorised or empowered by said Court to grant said feus in the form or forms so approved of, from time to time, as he should think proper, or without the same being subject to any conditions or stipulations which the Court might think proper, and to the said Court pronouncing an interlocutor dispensing with such procedure; but declaring, as it is hereby specially provided and declared and stipulated, as an express condition of this consent being granted by me, that the said Robert Christie shall not grant any such feus, neither shall he enter into any ninety-nine years' or other building leases of any part of the said entailed lands and estate, excepting as aftermentioned; nor shall he execute and deliver any feu-charter or lease, or other deed requisite and necessary to any feuar or lessee during my lifetime, unless I shall have first signified my consent to the terms of the feu or lease; which consent shall be sufficiently given and proved by a letter of consent under my hand, without my executing such feu-charters, leases, or other deeds themselves; declaring that the above condition shall not apply, nor shall my consent be necessary to feus or long leases of any part of the ground bounded on the east by the road leading to the new railway station at Leven, on the north by the railway, and on the south or south-west by the old station road.”
A remit was made by the Lord Ordinary ( Traynee) to Mr Henry Cook, W.S., who, with reference to the passage above quoted from the deed of consent, reported as follows—“The deed also contains a provision which is novel to the reporter, and to which he therefore calls your Lordship's attention, as it is desired that effect shall be given to it in the interlocutor your Lordship is now asked to pronounce. This provision is to the effect that the granter consents to your Lordship giving the petitioner power to grant feus from time to time as he may think fit, and that without any application to the Court, or any model charter being previously authorised, the only proviso being that during the lifetime of the consenter his special approval and consent shall be first obtained to any such transaction. The first remark that occurs upon this provision is that if this power is granted, and the present consenter thereafter predeceases the petitioner, the latter will be left free to grant feus of the entailed estate without any consent of the then heir apparent or other heir next entitled to succeed. Assuming therefore that the present consenter does predecease the petitioner, any feu granted by the latter thereafter would seem to the reporter open to challenge upon the ground that it was a feu granted by an heir of entail in a way not sanctioned by the Entail Acts, by which only he can feu out the entailed estate. For by these Acts an entailed proprietor must, generally speaking, (1) either get the sanction of the Court to each bargain of feu, or (2) have previously obtained the approval of the Court to the drafts of the special feu-charters proposed to be granted or to a model form of charter. The present deed of consent is practically providing a third method for obtaining the right to feu, which your reporter cannot see his way to regard as legitimate, and he therefore reports the point for your Lordship's decision.”
The Lord Ordinary ( Trayner) on 23rd May 1886 refused the fifth head of the prayer of the petition.
The petitioner reclaimed, and argued—The interlocutor of the Lord Ordinary should be altered, and the fifth head of the prayer granted. The necessary consent had been obtained, and that was all section 4 of the Entail Amendment Act, 1848, required. The heir apparent might have consented unconditionally according to that section, and so was clearly entitled to give a conditional consent.
Page: 611↓
At advising—
The deed of consent expounds the mind of the consenter in this way—“And further, I do hereby, subject to the conditions after expressed, consent to the said Robert Christie granting feus of the said entailed lands and estate so far as not already feued, or of such portions thereof as he may think proper, but excepting therefrom the mansion-house, offices, and policies of the same, and that at such times, in such portions, and for payment of such feu-duties as he may think fit, all without any further procedure, and particularly, without the feu-charters, feu-contracts, or other deeds of conveyance as shall be necessary for giving effect to the said feus so made and granted being executed at the sight of the said Court, and without the said Court approving of a form of feu-charter for said feuing, as the form to be made use of therefor, from time to time as the successive feus shall be granted by the said Robert Christie, and without his being authorised and empowered by said Court to grant said feus in the form or forms so approved of, from time to time, as he should think proper, or without the same being subject to any conditions or stipulations which the Court might think proper, and to the said Court pronouncing an interlocutor dispensing with such procedure.” Now, so far the consenter does not give any conditions of his consent—he is rather expounding what will be the legal effect of his consent. But he goes on—“Declaring, as it is hereby specially provided and declared and stipulated, as an express condition of this consent being granted by me, that the said Robert Christie shall not grant any such feus, neither shall he enter into any ninety-nine years' or other building leases of any part of the said entailed lands and estate, excepting as aftermentioned; nor shall he execute and deliver any feu-charter or lease, or other deed requisite and necessary, to any feuar or lessee during my lifetime, unless I shall have first signified my consent to the terms of the fen or lease; which consent shall be sufficiently given and proved by a letter of consent under my hand, without my executing such feu-charters, leases, or other deeds themselves; declaring that the above condition shall not apply, nor shall my consent be necessary, to feus or long leases of any part of the ground bounded on the east by the road leading to the new railway station at Leven, on the north by the railway, and on the south or south-west by the old station road.” Now, turning from these deeds to the clause of the statute we have this very wide and free power conferred—“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.” That is a very wide power, and the petitioner who answers to the description in the statute of an heir of entail in possession who has obtained such consents as would entitle him to disentail, is entitled under the section to sell his estate unconditionally if no conditions are imposed by the consenter. He does this under the authority of the Court in the usual way, and executes the deeds at the sight of the Court; but his position is just this, that he has a right to deal with the estate respecting this matter, either unconditionally or under conditions if they are imposed by the consenter just as if it belonged to him in fee-simple. No one is entitled to interfere with regard to the price he takes for the subjects; he may charge it with any encumbrances or he may lease or feu the whole of it.
In this case the only condition is that so long as the consenter survives, if he predecease his father, or during his father's whole life, if he survives his father, he shall be consuited
Page: 612↓
The fifth head of the prayer was amended at the bar, and made to run as follows:—( Fifth)
To grant warrant and authority to the petitioner to feu the said entailed lands and estate of Durie, so far as not already feued, or such portions thereof as he may think proper, but excepting therefrom the mansion-house, offices, and policies of the same, and that at such times, in such portions, and for payment of such feu-duties as the petitioner may think fit, all in terms of the said Act 11 and 12 Vict. cap. 36, sec. 4, before specified, but subject always to the condition contained in the deed of consent by the said Robert Maitland Christie, namely that the petitioner shall not grant any feus, neither shall he enter into any ninety-nine years or other building leases of any part of the said entailed lands and estate, excepting as aftermentioned, nor shall he execute and deliver any feu-charter, or lease, or other deed requisite and necessary to any feuar or lessee during the lifetime of the said Robert Maitland Christie, unless he, the said Robert Maitland Christie, shall have first signified his consent to the terms of the feu or lease, which consent shall be sufficiently given and proved by a letter of consent under his band without his executing such feu-charters, leases, or other deeds, themselves declaring that the above condition shall not apply, nor shall said consent be necessary to feus or long leases of any part of the ground bounded on the east by the road leading to the new railway station at Leven, on the north by the railway, and on the south or ‘south-west by the old station road.”.
The Court pronounced the following interlocutor:—
The Lords having considered the reclaiming note for the petitioner Robert Christie against Lord Trayner's interlocutor, dated 23d May 1888, and having heard counsel, Allow the prayer of the petition to be amended as regards the fifth head thereof; and this having been done at the bar, Recal the said interlocutor in so far as it refuses the prayer of the petition; quoad ultra adhere to the same: Further, grant warrant and authority to the petitioner in terms of the fifth head of the prayer of the petition as amended, and decern.”
Counsel for the Petitioner and Reclaimer— Sir C. Pearson—Cosens. Agents— Macrae, Flett, & Rennie, W.S.