Scottish Court of Session Decisions

The lands of Auchintully were entailed under a deed of entail dated 8th December 1841, and recorded in the Register of Tailzies 30th November 1849. In the deed of entail the disposition of the lands was made “always with and under the conditions, provisions, restrictions, limitations, prohibitions, clauses irritant and resolutive, declarations, and reservations after written.” The portion of the deed containing the cardinal prohibitions did not employ the term “prohibition” or prohibit,” but proceeded as follows:—“And with and under the restrictions and limitations after written, as it is hereby provided and conditioned that … it shall not be lawful to nor in the power of any of the heirs of taillie succeeding to the said lands and estate to alter, innovate, or change this present taillie, or any nomination or other writing to be executed by me as aforesaid, or the order of succession hereby prescribed or to be thereby prescribed, nor to do or grant any deed which may import or infer any innovation or change thereof directly or indirectly, nor to sell, alienate, feu, wadset, resign, or dispone my said lands and others, or any part thereof, either irredeemably or under reversion, whereby the same may be in any manner affected, or to burden the same in whole or in part with debts or sums of money, infeftments of annual rents, or any other burden or servitude for whatever cause or occasion, onerous or gratuitous.” The irritancies declared by the deed were directed against heirs of taillie, who “shall contravene the before-written conditions, provisions, restrictions, or limitations herein contained, or any of them;” and the resolutive clauses were directed against “all debts contracted, deeds granted, and acts done contrary to the conditions and restrictions before written or to the true intent and meaning hereof.”

On 15th July 1881 Miss Anna Maria Rutherford Aytoun, being heir of entail in possession of the said lands, presented a petition for authority to record an instrument of disentail thereof executed by her on 4th July 1881. Authority was granted by interlocutor dated 8th September 1881, and on 9th September the instrument of disentail was duly recorded in the Register of Tailzies.

The said instrument of disentail was conform to the form of an instrument of disentail contained in the schedule appended to the Entail Amendment Act 1848 (11 and 12 Vict. c. 36), in all particulars save one, viz., that while the statutory form declares the lands to be held “free from the conditions, provisions, and clauses, prohibitory irritant, and resolutive, of the entail,” the instrument of disentail executed by Miss Aytoun declared that the lands and barony in question were held by her “free from the conditions, provisions, and clauses, irritant and resolutive, of the entail,” thus omitting the word “prohibitory” which occurred in the statutory form.

Section 32 of the Entail Amendment Act 1848 provides as follows:—“And be it enacted that an instrument of disentail under this Act may be in the form or as nearly as may be in the form set forth in the schedule to this Act annexed, … and such instrument, when duly executed and recorded in the Register of Tailzies under authority of the Court in terms of this Act, shall have the effect of absolutely freeing, relieving, and disencumbering the entailed estate to which such instrument applies, and the heir of entail in possession of the same and his successors, of all the prohibitions, conditions, restrictions, limitations, and clauses, irritant and resolutive, of the tailzie under which such estate is held.” …

“After the recording of said instrument of disentail Miss Aytoun re-entailed the said estate of Ashintully under a deed of entail, dated 15th September 1881, and recorded in the Register of Tailzies under authority of the Court on 22nd September 1881, in favour of herself and the heirs whatsoever of her body, whom failing, the other heirs-substitutes therein mentioned. Subsequent to said re-entail Miss Aytoun married David Crawford Rutherford Lindsay, and under authority granted by the Sheriff of Perthshire executed in favour of her husband a bond and disposition in security, dated 1st January 1902, and recorded 10th January 1902, for the sum of £2014, 2s. 6d., being the amount of expenditure made by her on permanent improvements since the year 1882. On 29th April 1903 Miss Jean Rosine Robertson of Struan agreed to lend £2019, 2s. 6d. over the estate of Ashintully on a transfer to her of said bond and disposition in security, the loan to remain for a period of five years from Whitsunday 1903, and to bear interest at the rate of 3 1 2 per cent. per annum. It was an express condition of the agreement that Miss Robertson should get an unexceptional security title. Thereafter Miss Robertson took exception to the title offered to her, and maintained that there was no effectual disentail of the lands in 1881, in respect of the omission of the word “prohibitory” from the instrument of disentail as before mentioned. Mr and Mrs Lindsay maintained that the said omission did not invalidate the disentail.

For the settlement of the point a special case was presented to the Court by (1) Mr Lindsay, (2) Mrs Lindsay, and (3) Miss Robertson.

The question of law was—“Does the omission of the word ‘prohibitory’ in the instrument of disentail of 4th July 1881 render the disentail invalid?”

Page: 306↓

Argued for the third party—The statutory formalities had not been complied with and the disentail was therefore invalid— Kermack v. Cadell, July 9, 1852, 24 Sc. Jur. 609; Baird v. Baird, July 15, 1891, 18 R. 1184, 28 S.L.R. 878.

Argued for the first and second parties—The instrument of disentail was valid. The form laid down in the Entail Act of 1848 was permissive not compulsory. The deed said the same thing as the form but in different words. The phraseology used in the deed was that used in section 32 of the Act itself, and was also that used in the Statute 1685, c. 22. The deed of disentail let people know effectually that the estate had been disentailed, and that was its object. Without the irritant and resolutive clauses the prohibitory clauses were of no effect, and the estate had been admittedly relieved of the irritant and resolutive clauses by the terms of the instrument of disentail. The cases of Kermack and Baird were different from the present. They dealt with sections of the Entail Acts of 1848 and 1882 respectively, in which the word used was imperative, viz., “shall” not, as here permissive, viz., “may.” The analogy therefore failed, and these cases by contrast assisted the contention of the first and second parties.