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SCOTTISH_HoL_JURY_COURT

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(1718) Robertson 203

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 46.

Sir John Schaw, of Greenock, Bart. Appellant

v.

Dame Margaret Schaw, alias Houston, and Sir John Houston, Bart. her Husband, Respondents

10th March 1715–18.

Subject_Tailzie. —

Bruce, 15 July 1715.

A father infeft in an estate in life-rent, and a son infeft in fee, jointly entail the estate in the son's contract of marriage, with prohibitory, irritant, and resolutive clauses, and with a proviso, that the father and son should jointly have power to alter; this entail was insert in the register of tailzies upon the joint supplication of the father and son, but no resignation was made nor infeftment taken thereon: the irritancies and clauses not to alter were binding upon the son (after the father's death) even supposing the substitution were gratuitous.

In 1686, Sir John Schaw, Bart. deceased, father of the appellant and respondent Dame Margaret, settled his estate of Greenock upon himself in life-rent, and failing him to the appellant and the heirs male of his body in fee, whom failing to the other persons therein mentioned; reserving a jointure to the appellant's grandmother of about 72c l. per annum, and about 150 l. per annum to his mother, and a power to the father to raise 50,000 merks for younger childrens' portions, and to make leases for his life and 19 years after at one-third less than the then rent.

A marriage being afterwards agreed upon between the appellant and Margaret, the daughter of Sir Hew Dalrymple, Lord President of the Session, by their contract of marriage in March 1700, entered into with the Special advice and consent of their respective fathers and mothers, who are parties thereto, and subscribe the same, the said Sir John the father, and the appellant, in consideration of the marriage and of the portion of the said Margaret Dalrymple, bound and obliged themselves jointly and severally with mutual consent to resign their lands and estate therein particularly mentioned; viz. the lands and barony of Greenock, and also the lands of Broadstain and others, (which last were not contained in the settlement of 1686) to Sir John the father in life-rent, whom failing to the appellant and the heirs male of his body by that or any future marriage; whom failing to his five younger brothers successively and the heirs male of their bodies, whom failing to the heirs male of Sir John the father's body, by his then or any future wife; whom failing to the respondent Margaret and the heirs of her body; with several other substitutions of heirs, whom all failing to the heirs and assignees whatsoever of the appellant. The deed contained the usual prohibitory, irritant, and resolutive clauses against the appellant and the heirs of entail, and clauses to the following effect:

Provided, that out of Sir John the father's life-rent, there should be particularly excepted and reserved to the appellant for his and his wife's present maintenance, lands of the yearly value of 6000 merks, to be increased as they should have children:

And Sir John, the father, thereby renounced his power of charging the estate of Greenock with 50,000 merks for his childrens' portions, and all the other powers, which he had reserved by the settlement in 1686; and, his wife Dame Eleanor, with his consent, gave up her life-rent in the said estate of Greenock, to which she was entitled by her contract of marriage:

And in regard the heirs female of the appellant's body, failing heirs male thereof, were thereby excluded from the right of succession to the said estate, there was a particular provision of 50,000 merks made for their portions.

There were two parts of the said contract executed by all the parties in presence of the then Lord Chancellor of Scotland, and above 40 other lords and gentlemen, who all of them subscribed their names as witnesses thereto: but no resignation was made, or charter and sasine taken out thereupon. Upon a petition, however, in the name of Sir John the father, and the appellant, signed by Sir David Cunningham, uncle to the appellant's wife, their procurator, the Court of Session ordered the contract to be recorded in the register of entails pursuant to act of parliament; and it was therein registered accordingly, and the deed returned to the appellant.

The appellant's father having died, and also his five younger brothers without issue, and the respondent Margaret then standing the next substitute failing issue male of the appellant, the respondents brought an action before the Court of Session against the appellant, to compel him to exhibit the said contract of marriage, to the end that it might be ordered to be registered in the books of Session, and the respondents have an extract thereof. The appellant brought a counter action against the respondents to declare his right to alter the succession, and dispose of the property as he should think fit, as to all others except the heirs of the marriage; upon the ground, that notwithstanding these prohibitory clauses, yet he, as having the fee of the estate vested in him long before the said marriage-settlement, and being the first maker of the entail, could not be tied up by them, but might still alter the said order of succession, and cut off all other substitutes, except the heirs of the marriage, for whose security the contract was treated for and made.

In the debate arising on both these actions, it was at first alleged for the appellant, that the said contract of marriage was his own proper evident, wherewith he might do as he pleased, and that therefore he was not obliged to produce the same, before it should appear on the event of the action, that the respondents had a right to require the exhibition and registration thereof. The respondents made answer, that Dame Margaret being expressly

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nominated in the entail, which was a contract and conveyance of lands, she had good right to call for production thereof, to the end the same might be preserved. The Court thereupon “Ordered the appellant to exhibit, reserving all defences against registration or any other legal effect.”

The contract being accordingly exhibited, after various proceedings, the Court at first, on the 22d of February 1715, “Found that the irritancies in the appellant's contract of marriage did not affect the appellant who made the tailzie, and therefore declared in favour of the appellant, so far as concerned the lands contained in the charter and infeftment 1686.”

The cause, however, being re-heard upon the petition of the respondents, the Court, on the 15th of July 1715, “Found that the irritancies and clauses not to alter contained in the contract of marriage were binding upon the appellant who made the tailzie, even supposing the respondent Dame Margaret were a gratuitous substitute.” The respondents having then applied to the Court to have the appellant's counter action dismissed, their lordships, on the 30th of July 1715, “Found the tailzie a delivered evident, and ordained the contract containing the same to be registered in the books of Council and Session, that any concerned might take extracts thereof, and assoilzied she respondents from the appellant's declarator.”

Entered, 29 March 1717.

The appeal was brought from “an interlocutor of the Lords of Session the 15th of July 1715, and also from an interlocutor of the said Lords of Session, dated the 30th of the same July.”

Heads of the Appellant's Argument.

1685, c. 22.

It is certain, that before the said marriage-contract, the appellant was possessed in fee simple of the estate intended to be tailzied, and the interlocutors appealed from suppose the tailzie to be gratuitous or voluntary with respect to the respondent. That a tenant in fee simple could settle the order of his succession by tailzies as he thought proper, by the law of Scotland, was not doubted; nor was it doubted that he could alter such entail whenever he would: but of late men were not contented to settle their estates by way of entail, changing the order of succession from the heirs at law, to any other heirs; they proceeded to add conditions or limitations for restraining their heirs from altering the order settled by such entails, and that if the heirs of entail should do contrary to such conditions, their right should become irritated. These clauses are called prohibitory and irritant clauses, but it still remained a question till the year 1685, whether such irritant and prohibitory clauses expressed in tailzies did limit the heirs of entail and bar them from altering the succession or charging with debt. But it is remarkable that throughout the act 1685, c. 22. the legislature had no view to abridge the power known to belong by the law of Scotland to makers of tailzies, of altering the destination or order of their own succession, but only

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to make their own destinations the more effectual by confirming what limitations soever the makers should think fit to impost; upon their heirs. So that, at present, tailzies in Scotland, in so far as concerns the maker's power of altering are regulated, by the principles of the common law of that country; but in as far as relates to the restrictions and limitations of the fee in the persons of the heirs of entail, tailzies are regulated by the above-recited act 1685.

That the maker of a gratuitous or voluntary tailzie has power to alter it at pleasure by the law of Scotland, is evident; 1st, Because tailzies, as they regard the makers of them, are really destinations of succession, which by the known principles of the civil law, copied in that particular by the law of Scotland, are alterable at the pleasure of him who made the destination; nothing being more common than that a variety of accidents should with justice alter his intentions before his death, it was judged necessary, as well as expedient, to provide that a man should not have it in his power to deprive himself of the faculty of fettling his succession as he should find proper by any previous voluntary deed. This fundamental maxim of the civil law, in matters of succession, the law of Scotland has admitted universally, with one exception, and that is where a settlement is made for an onerous cause; in such a case, the law of Scotland looks upon the tailzie to be in effect a contract, which justice obliges the performance of, and therefore does not allow the maker to alter at pleasure.

Hope.

Stair's Inslit.

Dirleton's Doubts and Stewart's Answers, p. 146, 147.

Ld. Lindores against Oliphant and Stewart, Dalrymple, 8 Dec. 1714.

Bruce, 18 Feb. 1715. Scott of Hardin v. Scott of Raeburn, a subsequent case in this Collection.

2d, As this position is agreeable to the principles above established, so it is the unanimous opinion of all the writers on that subject: the learned Hope, in his Lesser Practicks, lays it down for certain, that a bond of tailzie ex nulla causa onerosa is revocable, but admits that it is binding, if it be granted for an onerous cause, or in view of a mutual tailzie. And Lord Stair, in his Institutes, b. 2. tit. 3. § 59. agrees in the same opinion, with this difference, that though a tailzie be made for an onerous cause, yet if that consideration were not adequate to the tailzie, it may be altered. Of the same opinion are the other lawyers who treat of this subject.

The appellant supports their opinion by the decisions of the Lords of Session in two important cases, lately determined, where the Judges were unanimous. The first was, the case of Lord Lindores against Oliphant and Stewart. The other case was that of Scott of Harden against Scott of Raeburn. Both these cases do incontrovertibly support the reasons insisted upon by the appellant, and prove, that the first maker of an entail cannot by any clauses be tied up from the power of disposing of his inheritance as against all voluntary substitutes.

But further, as the maker of a tailzie must, from the nature of that settlement, be possessed of a faculty of altering it, the appellant conceives, that he having by the deed now in question reserved to himself the fee of the estate according to the law of Scotland, and as the property does still absolutely remain with

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the appellant, the power of alienation must likewise remain with him. It is true, that if the appellant had made himself life-renter, he could not have pretended to the power of alienation, because the fee in that case would have been lodged in another; and it is equally true, that an heir of entail limited with usual clauses, cannot alter: but neither of them is the case here; the appellant was and still is absolute fiar.

Heads of the Respondents' Argument.

There is nothing plainer than that, as a man having an unlimited fee or property, may dispose thereof at pleasure; so he may lessen or restrain his own right in favour of another, and what is granted to that other, is as much his property as what remains with the first proprietor. It was indeed in the appellant's power to have joined in making this entail or not; but when he had joined in making thereof, whereby the estate is limited, for want of heirs male, to the respondent Dame Margaret by name, With prohibitory and irritant clauses, not only upon the heirs of entail, but expressly upon the appellant himself, he and all the heirs of entail are thereby bound up and disabled from making any alteration therein, whereby the appellant's right or property, which was before free and unlimited, is become limited. There are here not only the ordinary prohibitory and irritant clauses, but an express obligation on the appellant and all his subsequent heirs to stand seised and possessed by virtue of that contract and by no other title. But, besides, it appears in this case, that Sir John Schaw, the appellant's father, was tenant for life in possession, with the reservation of a jointure for his lady; So that the appellant was not proprietor of the whole fee simple; and the appellant's father and mother joined in this settlement, and thereby made a present provision for the appellant and his lady, which they could not have had, without the father and mother's joining; and therefore the appellant ought to be bound by the terms and agreements of the deed in which they joined.

The appellant contended, that by the contract of marriage, the fee was vested in him, whom all the heirs therein mentioned, or whoever might succeed to the said estate, must represent, and therefore could not controvert, but must fulfil his deeds; and in case of the appellant's contravention, no person could be served heir, for that the next in succession must be served heir to him, (which would be absurd, for that he had lost his right) and not to his father, for he was denuded. But this argument de absurdo is of no validity; for, as to the question, whether the appellant be bound or not by his contract, it is to be determined without regard to what might fall out. And if the appellant should contravene, upon an action brought against him by the next in succession, he would be decreed to denude, and adjudication would follow thereupon in favour of the next heir of entail, by virtue of the obligation in the settlement for that purpose.

The statute 1685 gave a liberty to persons to tailzie their estates, and burden their heirs as they thought fit, which before then had

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been controverted, as if a person could not burden heirs that were not in being; and the design of the statute was to prevent that objection. But it was never brought in question, either before that statute or since, whether a present and absolute proprietor could tie up himself as be thought fit; and the act of parliament does no way relate to that matter.

The entail is in a contract of marriage, whereof there were two parts subscribed and mutually interchanged and delivered: and the same was registered in the register of entails, by decree of the Lords of Session, upon a supplication of the appellant and his father, mentioning to be for the benefit of all parties therein concerned: and this being a complete contract, and having the force and effect of a delivered evident or deed, there was no distinction either as to the grantor or grantees, whether the same was completed by charter and sasine or not, since the power to alter did not arise from this, that it was but a personal obligation, but from the nature of the thing, for whatsoever the charter and sasine could do, the personal obligation had, by the law of Scotland, the same effect against the grantor to oblige him to fulfil; and with respect to the grantor's power of altering, there is no difference whether it was completed by charter or not; and the appellant might as well have altered the succession as to his five brothers, were they now living, as to think of doing it to the prejudice of the respondent.

The preference given to the respondent Dame Margaret by the said contract of marriage had been fully concerted and agreed to by all parties, and was what her father had stipulated for her, and not the mere voluntary deed of the appellant. For by Sir John her father's settlement in 1686, while the appellant was a minor, he, the appellant, had not a free and unlimited fee in the said estate of Greenock, the same being considerably qualified and burdened by the father: but all these qualifications and burdens were by her said father, in the contract on the appellant's marriage, renounced and given up; and consequently what was thereby provided in her favour was a plain agreement between father and son, whereby her father prevailed with his son to prefer her to his own daughters in the succession, and that for valuable considerations.

These valuable considerations were; That by the settlement 1686, the estate in question stood charged with the value of about 13,000 merks for a jointure to the appellant's grandmother, and about 150 l. per annum to his mother, who are still living, and with a power to Sir John the father to raise 50,000 merks for younger childrens' portions: Sir John the father had likewise a life-rent in the whole, and a power to make leases for his life, and nineteen years after, at one-third less than the then rent, whereby he might have raised fines. By the present settlement that power of making leases is discharged, and from the date thereof an immediate provision of 322 l, sterling per annum is made for the appellant, with a covenant therein to add more to it, as his children should increase, and other lands included to

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the value of 100 l. sterling, which were not comprised in the former settlement, and to which the appellant had no other right: and besides, Sir John, the father, had a personal estate of 20,000 l. sterling, which he might have disposed of at his pleasure, as he soon afterwards did to the appellant, the prospect whereof was a further inducement to the appellant to join in this entail, and to settle the succession as his father desired.

Judgment, 10 March 1717–18.

After hearing counsel, It is ordered and adjudged that the petition and appeal be dismissed, and that the said interlocutors therein complained of be affirmed.

Counsel: For Appellant, David Dalrymple. Rob. Raymond. Will. Hamilton.
For Respondents, Tho. Lutwyche. Sam. Mead.

This case seems to be inaccurately reported in the Dictionary, vol. 2. p. 431. voce Tailzie.

1518