United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

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(1719) Robertson 226

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 51.

William Scott of Raeburn, an Infant, by his Guardians, Appellant

v.

Walter Scott of Harden, alias Highchester, an Infant by his Guardians, Respondent

9th March 1718– 1719.

Subject_Tailzie. —

Fountainhall, 28 Feb. 1710. Forbes, 23 June 1713.

A person receives right to an estate from his father, and the son afterwards executes a procuratory of resignation for an entail of the estate, with prohibitory and irritant clauses, to himself in life-rent and to his father in fee, and failing of him to the heirs male to be procreated of his own body, and sailing them to other heirs of entail: This procuratory was registered in the register of Tailzies, and inhibition used against the grantor, but no charter or sasine taken thereon: It is found, that there being no antecedent onerous cause for making this entail, especially in favour of heirs to be begotten and born, and seeing it remained in the terms of a personal right, without being perfected by charter or sasine, it was revocable by the maker thereof, with consent of his father the first institute.

Sir William Scott, the elder, of Harden, in the county of Berwick, had two sons, William and Robert, and two brothers, Gideon Scott of Highchester, (the respondent's great grandfather,) and Walter Scott of Raeburn, his youngest brother, (the appellant's great grandfather).

In March 1673, upon the marriage of William the son (who was then also Sir William) with Jane Nisbet, daughter of Sir John Nisbet of Dirleton, Sir William the elder bound himself to settle the lands of Harden and others on Sir William the son, and the heirs male of his body of that marriage, whom failing to the heirs male of his body of any other marriage, whom failing to his heirs and assignees whatsoever. In 1674, a deed was executed by Sir William the father in terms of the said obligation, upon which infeftment was taken by Sir William the son.

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In May 1686 Sir William the son executed a procuratory of resignation for a new entail of his estate; at the date of executing this procuratory, Sir William the son was under the displeasure of the Government, and neither he nor his brother Robert had any issue; and the Earl of Tarras, son of Gideon Scott of Highchester, (who would have succeeded to the estate, failing issue of Sir William the son and his brother Robert,) stood forfeited for treason. By the said procuratory of resignation Sir William the son “for the well and standing of his house and family, and continuance thereof in the surname of Scott, and for certain good and onerous considerations, bound and obliged himself, his heirs and successors, to make due and lawful resignation of his estate in the hands of the superior in favour and for new infeftments thereof to be given to Sir William Scott the elder of Harden, his father; whom sailing to the heirs male to be procreated by himself of his then present or any future marriage; whom failing to Robert Scott his brother, and the heirs male of his body; whom failing to William Scott of Raeburn,” (the appellant's grandfather,) and the heirs male of his body; whom failing to the other heirs of entail therein mentioned, “the descendants of Sir Gideon Scott of Highchester deceased, both male and female, being always upon great and weighty considerations excluded and debarred from the succession in all events.” By this deed Sir William Scott the younger reserved to himself his own life-rent of the whole entailed lands, and power to provide for a second lady by a jointure not exceeding 220 l. 4 s. 5 d. sterling per annum, and the children of such second marriage with portions not exceeding 1666 l. 3 s. 6 d. sterling. It contains a proviso, that it should not be lawful to the said Sir William Scott the father, and the other heirs of entail, to alter the same or the order of succession, and in case any of them Should attempt it, the deed should be void, and the person so doing should forfeit his right, and the next in substitution should be at liberty to enter; and it also contains a clause, that the same should be valid, though it should not be delivered by the grantor in his lifetime, but should be found amongst his writings after his death.

No charter or infeftment followed upon this procuratory; but, in the absence of Sir William Scott, the younger, from the kingdom, his father in January 1691, sent the said procuratory to Mr. Menzies, his agent, (who had drawn the same,) with a missive letter, desiring him to register it with all convenience and security, for delays might prove dangerous. And Mr. Menzies, in July same year, presented a petition to the Lords of session for Sir William Scott the elder, and the other members of the entail, praying that the same might be registered in the register of entails appointed by act of parliament, which was accordingly ordered and done. Sir William Scott the elder, Robert Scott his second son, and William Scott of Raeburn (the appellant's grandfather,) the three persons first named in the entail, used inhibition also in 1691 against Sir William Scott the younger, to prevent his

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making any deed in prejudice of the entail. These steps were taken without the privity of the grantor, when he was out of the kingdom, and several years before his return.

After his return to Scotland, in 1698, the father and son executed a deed, reciting, That though Sir William Scott the younger had for particular reasons at the time subscribed the deed of 1686, yet the same was left to be further considered by him, and no ways to be made use of but when and as he should think fit; nevertheless that it was in his absence and without his order put into the public register, he being at that time out of the kingdom, and since both he and his father were resolved to discharge and make void the said deed, to the end that their succession might either run in the tenor of the former infeftments of their estate, or be ordered by a new settlement of the said Sir William the son; therefore they expressly declared the said deed of 1686 to be void and null, and that the succession to the estate should by no means be regulated thereby: and the said Sir William the father did thereby repone and restore the said Sir William the son in his full right and place of the premises as before the making of the said tailzie, which he for himself and all the other heirs of entail perpetually renounced in his favour.

In 1699 Sir William, father and son, raised an action of reduction improbation before the Court of Session against the heirs of entail for reducing the deed of 1686; in this action the defenders did not appear, and decree of certification was obtained, declaring that the deed so reduced if produced in any Court was to be looked upon as false and forged, and to bear no faith.

For some time no new settlement of the estate was made; but, in 1705, Sir William the son executed a new entail of the estate, proceeding upon the recital, that “Whereas I have a plentiful estate conveyed to me from my progenitors of the surname of Scott, which I am resolved to transmit and continue in the said name of Scott, for the lasting well and standing of my family in the said name in all time coming;” therefore he settled his estate to himself and the heirs male of his body, whom failing to his brother Robert and the heirs male of his body, whom failing to the respondent (grandson of the said Earl of Tarras, who was son of Gideon Scott, the said Sir William's eldest uncle) and the heirs male of his body, whom failing to Walter Scott of Raeburn (the appellant's father) and the heirs male of his body, whom failing to certain other heirs therein mentioned: reserving a power to Sir William the grantor to alter this enrail. The principal difference between this and the deed of 1686, was, that the descendants of the Earl of Tarras, who were totally excluded in the former deed, were by this latter deed called to the succession in preference to the Raeburn branch.

Sir William Scott the father, Sir William the son, and his brother Robert, having died without issue male, the appellant was served heir to his grandfather William of Raeburn, the person next called to the succession by the deed of 1686; and thereupon an action was brought by him and his guardians before the Court

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of session against the respondent and his guardians, for reducing and voiding the deed of revocation executed by Sir William Scott elder and younger, and the said decreet of certification, and also for avoiding the second entail. In this action the appellants insisted that the deed of revocation was void, because neither father nor son apart nor jointly had power to recal the former entail, for Sir William the younger was divested of the fee, and only remained life-renter, and as such could have no heir or successor, and consequently could not alter the succession; neither could Sir William the elder do it, because he had not an absolute but only a conditional right by the provisoes of the entail; which among others were, that the descendants of Sir Gideon Scott (the respondent's great grandfather) should be excluded from the succession in all events; and that he should not alter the course of succession in prejudice of the heirs of entail, and if he should do in the contrary that such deed should be void; and they insisted, that the said decree whereby the entail, under which the appellant claims, was declared to have been false and forged, was null, the action implying a contradiction. For the pursuers in that action, in their deed of revocation, and in their libel, set forth that the entail was made by them and recorded as the law directs, and yet in the same libel they conclude that the same deed should be decreed to have been false and forged.

In this action the respondent appeared and made defences: and the cause being heard before the Lord Ordinary, his lordship, on the 18th of June 1712, “Repelled the allegation made for the appellant against the decree of certification, and found the said decree sufficient to exclude his title in that action” and to this interlocutor his lordship adhered upon the 17th of February 1713. The appellant reclaimed to the whole Court, and their lordships, upon the 23d of June 1713, “Found that there being no antecedent onerous cause made or done to Sir William Scott the younger, of Harden, for making the former entail of his estate, especially in favour of heirs to be begotten and born, and seeing the said entail did remain in the terms of a personal right without being perfected by charter and sasine, it was revocable by Sir William the maker thereof, with consent of Sir William his father, the first institute, and is actually revoked by them conform to the revocation in process; and therefore found no need to advise the relevancy of the reasons of reduction proponed against the said decree, but assoilzied from the reduction of the second entail and the said decree of certification simpliciter.”

Entered, 1 Dec. 1713.

The appeal was brought from “several interlocutory sentences and decrees of the Lords of Session of the 18th of June 1712, the 17th of February and 23d of June 1713.”

Heads of the Appellant's Argument.

Sir William Scott the younger having divested himself of his estate without reserving any power to alter, and the entail being

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delivered to Sir William the father, as institute in the entail, and he having got the same recorded by authority of the Lords of Session, and served Sir William the younger with inhibition to prevent his making any deed in prejudice to the first entail, he could not thereafter recall or void the same at his pleasure.

1621, c. 18.

The maker of a gratuitous or voluntary deed, whereby the grantor is divested of the fee has no power by the law of Scotland to alter it at pleasure, though no charter or infeftment followed thereupon. 1st, Any person may divest or oblige himself as firmly by a gratuitous deed, as by a deed for valuable considerations. 2dly, In this case the entail recites to have been executed for certain good weighty considerations and onerous causes, so that it was not gratuitous; for by the law of Scotland, an instrument or deed solemnly executed, containing any confession or declaration concerning matters of fact, proves fully against the subscriber of such instrument, which must the rather hold in this case; especially seeing, 3dly, The deed was made in favour of the father, from whom originally the estate flowed, and the other heirs of entail in their order, because their estates were entailed to the same line of succession that the estate of Harden was: So that the first entail is to be considered as a real and onerous settlement made betwixt the father and son, whereby they mutually agree to divest themselves of the power of altering, for preserving the estate in the line chosen by them. But, 4thly, By the course of decisions in Scotland mutual entails have always been admitted as onerous causes for each other: as, for instance, if Sir William Scott the elder and younger on the one part had settled the estate of Harden in default of issue male of both their bodies to the appellant's grandfather, and at the same time he had settled his estate of Raeburn in default of issue male of his own body upon the said Sir William Scott, and their issue male, these mutual entails would have been valuable considerations for each other, and could not have been altered by either party, and this was in effect the case. For the appellant's grandfather, in 1681, five years before Sir William Scott's entail was made, settled his estate upon his own heirs male, whereby Sir William Scott and his heirs male, would have succeeded in the course of succession before the grantor's heirs of line; and Sir William Scott elder and younger are subscribing witnesses to this deed of settlement: and that this was a consideration in making the first entail, does plainly appear from these words, which are part of the deed of entail, viz. “Because he” (the Said Sir William Scott, jun.) “knew their estates were entailed upon their heirs male, and that they would not alter these entails and course of succession therein set down,” as in reality they have not done. But whether the first entail was gratuitous or not, it is equal in this case; for it is not denied that the second entail under which the respondent claims was gratuitous, and by the act of parliament 1621, c. 18. may be reduced at the instance of the heirs of the first entail, who, with respect to the heirs of the second entail, are lawful creditors. Though

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no resignation or charter and infeftment followed upon the first entail, yet Sir William Scott having reserved no power to alter the entail, as is usual in all cases, when such reserved power is intended, was bound the moment he executed the deed of entail; and the making resignation, and taking out charter and infeftment thereon, concerned only the heirs of entail, but not the maker thereof, he having given a power to any person they should appoint, to surrender the estate, when the heirs of entail pleased; and though the said Sir William the younger had objected against such surrender, yet he could not have stopped it, and therefore the obligation must remain binding upon him and his heirs, who had no interest in the fee simple of the estate, except the foresaid reservations in favour of a second lady and children, which exclude all other reservations. For exceptio firmat regulam in casibus non exceptis.

1685, c. 22.

By the following words of the act of parliament 1685, c. 22. viz. “The original tailzie once produced before the Lords of session judicially, who are hereby ordained to interpose their authority thereto, and that a record be made in a particular register-book, to be kept for that effect, wherein shall be recorded the names of the maker of the tailzie, &c. and being so insert, his majesty, with advice and consent foresaid, declares the same to be real and effectual, not only against the contraveners and their heirs, but also against their creditors, comprysers, adjudgers, and other singular successors whatsoever, whether by legal or conventional titles;” it is plain the entail is a real and effectual right after the same is exhibited before the Lords of session and recorded as above.

It is plain Sir William Scott the elder had the entail in his possession, as appears from his letter to Mr. Menzies for recording the same, and Mr. Menzies's receipt for 3 l. 8 s. sterling as the fees thereof; and the Scots law presumes it was a delivered deed when it appeared out of the hands of the grantor; neither did Sir William the younger make any objection against the recording of the said entail for seven years thereafter, nor did he ever say that his father had indirectly got up the said deed of entail; and there is no doubt, if he had not delivered it to his father, he would have demanded his oath upon the way and manner how he got the same.

No. 46 of this Collection.

The appellant supports his case by the decision of the Court of Session, affirmed by the House of Lords, in the case of Sir John Shaw v. Dame Margaret Houston and Sir John Houston her husband, 10 March 1717–18: the words of the decree of the Court of Session are, that the irritances and clauses not to alter were binding upon Sir John Shaw, who made the entail then in question, even supporting Sir John Houston's lady to have been a gratuitous substitute or heir of entail. That case of Shaw and Houston was very much stronger than the present, for Sir John Shaw kept the entail in his own hands, and never perfected the same by charter and sasine. 2dly, That entail was made in favour of himself, as the first institute with a power to alter; and the obligations or irritancies

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were only to commence upon the heirs of entail agreeable to the statute 1685. 3dly, Albeit Sir John Shaw's entail was made in a marriage-settlement, yet that did not alter the case; that settlement was no further onerous than in so far as concerned the wife and children of that marriage; the entail, in so far as it extended further, was a choice gratuitous and free; and yet the Court of Session in the one case decreed, that the two Sir William Scotts joining together could alter that entail, and in the other case, that Sir John Shaw was bound by the clauses irritant not to alter.

Heads of the Respondent's Argument.

The deed in question was not delivered, but on the contrary was intended not to be delivered, there being a clause in the deed dispensing with the not delivery in case of his death. It is true it was recorded, but that was done without either the order or privity of the grantor: for these are the words in the deed of revocation. “It was” (meaning this deed)“in my absence and without my order put into the public register, I being at that time abroad out of the kingdom.” This therefore can never be looked upon as a deed delivered by Sir William.

Lord Lindores's case.

Dalrymple, 8 Dec. 1714., Bruce, 18 Feb. 1715.

Though it contain no power of revocation, that is of no consequence, it being unnecessary, because by the law of Scotland, it is alterable of its own nature, being considered only as an intention or destination of succession to take place after his death, in case he should not make any alteration therein. This is the undoubted law of Scotland, and so it is laid down by the greatest lawyers of that country when writing on this subject: and the judges as often as any question of that kind has come before them, have so determined it, particularly in the case of Lord Lindores, where they found that a voluntary settlement, though under the strictest provisions not to alter, was still alterable at pleasure by the first maker. So that clauses of revocation are not of any use in deeds of this kind.

Though Sir William the maker, obliged himself to resign the estate, and make himself only liferenter; yet that resignation or settlement never was made, and the deed continued only in the nature of a declaration of what was then intended ; which, as has been said, continued alterable at pleasure.

As to the case of Shaw and Houston; 1st, Sir John Shaw, who made the settlement, was expressly tied up from making any alteration; but in the case in question, there is no such restriction upon Sir William the son; these restrictions are only put upon Sir William the father, and the heirs substituted to him. Besides, though the deed of 1686 be called an obligation, yet the said Sir William the son was not bound to any other person; so that if it be to be called an agreement, it is only with himself, which shews it to be only in the nature of a will. 2d, In the case of Shaw and Houston the settlement was by marriage-contract, and was a solemn agreement betwixt different parties, publickly, and with the greatest solemnity executed and duly registered with consent

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of all parties, and was made upon an onerous cause or valuable consideration. For Sir John Shaw the father, who was a party to that agreement, had quitted his liferent of the lands thereby settled, and had made several other provisions in view and consideration of that very settlement; but in the settlement in question there was no valuable consideration, no contract with different parties, but a deed poll ^* containing a destination of succession not intended to be delivered, and made purely to guard the estate against the dreaded forfeiture. 3d, In the case of Shaw there was a power to the father and son to alter the same together, which shewed that the father had an interest in the covenant, but here was no other party, nor any other interest than that of the maker of the tailzie.

By the law of Scotland, no man can dispose of any estate of inheritance by will, but must do it by deed; should then the appellant's doctrine take place, that a man who once by deed obliges himself to make any voluntary settlement of his estate must pursue that and cannot alter it, the consequence would be, that no man could make any voluntary settlement but once in his life; which is attended with consequences too obvious ever to be received.

The deed whereby the appellant insists, that the respondent was excluded, was only made upon a certain view, on consideration of the circumstances of the family, as they then stood, which afterwards were altered; and that deed was not a contract or settlement, but only an intention to make one, which was never made, and the grantor was consequently at liberty to alter it in favour of the respondent his heir at law.

Judgment, March 9. 1718–19.

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

Counsel: For Appellant, David Dalrymple. Thomas Lutwyche.
For Respondent, Rob. Raymond. Jo. Pringle. Wil. Hamilton.

Vide the case Muirhead v. Muirhead, No.2 of this collection; where a disposition was found to be revocable even where infeftment had been taken thereon.

_________________ Footnote _________________

* I retain this technical English expression, merely to mention what perhaps is not generally known in Scotland, that in England there are two sorts of deeds, deeds poll, and deeds indented: a deed poll is a deed consisting of one part only; a deed indented consists of more parts than one, and the parties to it interchangeably execute the several parts or copies. The latter is called an indenture because the top of it is indented or cut in an undulating shape; whereas a deed poll is cut straight or polled.

1719