United Kingdom House of Lords Decisions

Jan. 29, 1743.

In 1743, Sir John Paterson, Bart., of Eccles, executed an entail of his estates of Eccles and Hope Pringle, containing the usual prohibitions, with irritant and resolutive clauses; but reserving power to alter or revoke at pleasure. The entail was duly recorded, and was granted, under burden of the entailer's debts, with power to sell the estate called Hope Pringle for payment thereof.

By a subsequent deed, Oct. 1755, he revoked the power given to heirs of entail to grant heritable security for infeftment over the estate, and he also discharged all further power of revocation of the entail. This deed was recorded in the register of entails.

July 1758.

A new deed was executed by the entailer, in July 1758, materially differing from the former destination. It recited the previous entail, and the power reserved therein; but was obviously granted with the view of its having the force of an entail. It had not the usual prohibitory and resolutive clauses; but a reference merely was made to the prohibitory, irritant, and resolutive clauses in the previous entail, by the insertion of the following clause:—

“With and under the provisions, conditions, irritant and resolutive clauses, as contained in the original bond of tailzie, and in the charter and infeftment following thereon.”

This deed was not recorded.

On the death of the institute, the respondent, one of his creditors, brought an action against the heiress of his debtor for payment of his debt, in which the question came to be, Whether the latter deed, containing only a reference to the prohibitions, irritant and resolutive clauses contained in the former entail and infeftment, was effectual to protect against creditors?

Mar. 11, 1786.

The Court pronounced this judgment, on remit from the House of Lords:—

“In obedience to a remit from the Lords Spiritual and Temporal in Parliament assembled, find, That in respect the disposition 1758 differs in several articles from the entail 1743, and in particular, that certain heirs or substitutes called by the entail 1743, are omitted in the disposition 1758, and that this disposition was followed with charter and infeftment, therefore it is to be held a new settlement of the estate; and not having contained

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the clauses prohibitive, irritant and resolutive, and not having been recorded in the register of entails, is not an effectual entail: Find, that in respect the clauses irritant and resolutive in the entail 1743, are not particularly inserted in the disposition 1758, the same, though held as a conveyance, is not effectual against creditors, and remit to the Lord Ordinary to proceed accordingly.”

Against this interlocutor the present appeal was brought.

Pleaded for the Appellants.—The judgment of the Court of Session, upon the present and former appeal, has proceeded on the supposition that the deed of 1758 was a separate and distinct entail of the estate, and as such, not good against creditors, unless it contained the usual prohibitory, irritant and resolutive clauses, and was recorded as a separate entail in the register of tailzies. But the appellant humbly conceives, that if the deed is to be considered as a new and distinct settlement, in so far as it differs from the previous one, it was not in the power of Sir John to execute such a disposition, as far as the same was inconsistent with the entail of 1743 and 1755, because, by the last of these two deeds, Sir John Paterson had renounced and discharged his power to alter and revoke, reserved in the entail of 1743. But, in point of fact and law, the settlement of 1758 was not a new settlement of the estate, but merely a continuation of that previously made, and must, from the precise and special reference made from the one deed to the other, be held to be one and the same deed, though in point of fact a separate deed; yet, as it contains a clause making reference to the prohibitions, and irritant and resolutive clauses in a former one, this ought to be held just as equally sufficient, as if it had contained these clauses expressly enumerated.

Pleaded for the Respondent.—When entails are set up against onerous creditors, a stricter rule of construction is to be applied to them than is commonly done where the question is between heirs; and, accordingly, unless the requisites of the statutes in regard to these deeds be complied with, they cannot be effectual against creditors. In the present case, the disposition 1758 was a new settlement of the estate, in many respects different from the previous entail. It contained no prohibitory, irritant and resolutive clauses, and though it bore a reference to the prohibitory, irritant and resolutive clauses in the former entail, yet this was not sufficient to make it effectual; and, besides, being unrecorded,

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