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SCOTTISH_HoL_JURY_COURT
Page: 339↓
(1819) 1 Bligh 339
REPORTS OF CASES HEARD IN THE HOUSE OF LORDS, UPON APPEALS OR WRITS OF ERROR, And decided during the Session, 1819. 59 Geo. III.
SCOTLAND.
APPEAL FROM THE COURT OF SESSION (FIRST DIVISION).
No. 10
Power of an heir of tailzie in respect of leasing.
In what respects an heir of tailzie is absolute owner of the estate, and in what respects he is bound to administer for the benefit of his successors under the entail.
The word “dispone,” in the prohibitory clause of a Scotch entail, has the same meaning and operation as the word “alienate.”
Those words prohibit long leases, as alienations inconsistent with a due administration of the estate.
A lease for 57 years is a long lease within the meaning of the prohibition.
Words prohibiting alienation affect a lease by which the grantor of the lease, the heir of entail in possession, does not reserve to the succeeding heir of entail the same benefit as to himself, as, by reserving a given rent to the grantor during his life, or for the first years of the term, and a smaller rent after his decease, or for the remainder of the term.
Grassum (a fine taken upon granting a lease), is anticipated rent.
Therefore, a lease made upon a grassum paid to the grantor, is an alienation pro tanto of the rent.
A power in an entail to make leases “without diminution of the rental, at the least at the just avail for the time,”means, at the fair value at the time of leasing, not the last rent, which may have been paid a century before.
“Rental,” in that clause of the entail, is the same in construction as “rent.”
The heir in possession taking a grassum effects a diminution of the rental or rent, and does not take the just avail for the time.
It is a diminution of the rent if grassum was taken upon a preceding lease; and such lease being surrendered before its expiration, a new lease is granted at the old rent.
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Leases granted upon such terms are void, as between the heirs of the entail.
Whether leases granted for 31 years, or so many years as the Court of Session or House of Lords shall deem to be within the power of the heir of entail, are void as uncertain, and not according to a due administration of an entailed estate. Quære.
Leases made by the heir of entail in possession, for nineteen years, with covenant to renew annually during his life, are not void, as being a transgression of the power to lease for the setter's life, or nineteen years.
Numerous leases granted by the heir of entail for his own benefit, and to the prejudice of the succeeding, heir of entail, operate as a fraud upon the entail.
THE LORD CHANCELLOR. *
my lords,
2 July 1819.
This is unquestionably the most weighty and important cause, which, in the course of my professional life, either at the bar or in a judicial situation, I have ever had occasion to consider: important in its
_________________ Footnote _________________ * These were appeals arising out of various actions, of declaratur and reduction, in which the trustees of the late Duke of Queensberry, the present Duke of Buccleugh and Queensberry, the Earl of Wemyss and March, and certain lessees of the late Duke of Queensberry, were parties. The cases turned upon the construction of two entails; the one called the March and Neidpath, the other, the Queensberry entail: and the principal questions arising and discussed in the cause were,—1st. Whether, in the prohibitory clause of an entail, the word “dispose” was equivalent to the word alienate, and had the same effect to prevent alienation? 2d. Whether long leases, and of what endurance, were alienations? 3d. Whether taking grassum was a breach of the prohibition to alienate? 4th. What was the true construction of a power given to the heir of tailzie in possession to make leases “without diminution of the rental, at the least at the just avail for the time;” whether it meant the last preceding rent taken, or the fair value at the time of leasing; and
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_________________ Footnote _________________
whether taking a grassum was a breach of that condition annexed to the power of leasing? 5th. Whether leases for 31 years, or if the Court of Session or House of Lords should hold such leases to be void as too long, then for such period as those Courts should approve, were good leases, i.e. whether the Court would restrict the endurance, and define the ish for the parties? 6th. Whether leases for nineteen years, with obligations to renew for the same period annually during the life of the grantor, were prohibited, as being for the setter's lifetime and nineteen years? 7th. Whether leases at the same rent, substituted for and upon the surrender of former leases, which had been made with grassum, could be sustained? And finally, Whether leases of the several descriptions before stated, granted by the heir of entail in possession to the amount of many hundred, were to be considered as frauds upon the successors in the entail.
The appeal was before the House of Lords in the year 1817, and on the 10th of July was remitted, with special directions, for the reconsideration of the Court of Session. After judgment upon the remit, the cause now came for the final decision of the House of Lords.
The nature of the several actions in the Court below, the parties to them, the terms of the respective entails, the several matters in issue, the arguments urged before the original and appellate jurisdictions, so far as they are material to understand the question, appear in the following observations made in moving the judgment on this appeal. More exact information (if desired) upon these points, may be found in the printed cases; and a general outline of the pleadings, and the facts and questions, may also be found in the observations of the Lord Chancellor in moving the remit upon the former appeal.—MS. 9 July 1817. Dow's Rep. vol 5. p. 297.
No part of the arguments are given in this report, because the principal topics of argument are noticed in the Chancellor's speech in moving judgment, and from their extreme length, it would not be possible, within moderate bounds, to do justice to the great ability of the advocates who pleaded the cause at the bar of the House.
Page: 342↓
In order to render the question intelligible, it becomes necessary to enter into a statement of the law of Scotland as referrible to the facts and circumstances of this case,—the law of Scotland, not as it is understood in interpretation, but as it is to be found in acts of Parliament; for the question between these parties arises upon what is the true intent and meaning of an act passed in Scotland in 1685, which is their act respecting tailzies. Tailzies existed long before that period, but the present case is to be considered upon the true construction of that act of Parliament, as attaching upon the tailzies of the March and Neidpath estates, and the Queensberry estate.
Before and since the passing of that act, it has been the subject of much controversy, what is the law of Scotland as to the interpretation of tailzies. They have been treated as matters strictissimi juris, as not to be construed by intention, but only on what you find embodied (to use their phrase) in expression; and those principles have certainly, before and since the act, been applied to tailzied instruments.
_________________ Footnote _________________
The several cases were argued at the bar of the House of Lords upon the original hearing by Mr. (now Vice Chancellor)Leach, Mr. Jeffrey, Sir S. Romilly, Mr. Cranstoun, and Mr. Moncrieff, on the 3d, 5th, 7th, 10th, 13th, 14th, 17th, and 18th of February 1817; and after the judgment of the Court of Session upon the remit, by the Lord Advocate (Machonochie), the Solicitor General (Gifford), Sir S. Romilly, Cranstoun, Moncrieff, and J. Murray, on the 13th, 15th, 17th, 20th, 22d, and 27th of April 1818.
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Scots Act,1685.
That act of Parliament is in these words: “Our Sovereign Lord, with advice and consent of his Estates of Parliament, statutes and declares, that it shall be lawful to his Majesty's subjects to tailzie their lands and estates, and to substitute heirs in their tailzies, with such provisions and conditions as they shall think fit, and to affect the said tailzies with irritant and resolutive clauses, whereby it shall not be lawful to the heirs of tailzie to
*
sell, annailzie or dispone the said lands, or any part thereof, or contract debt, or do any other deed whereby the samen may be apprysed, adjudged or evicted from the others substitute in the tailzie, or the succession frustrate or interrupted, declaring all such deeds to be in themselves null and void, and that the next heir of tailzie may immediately, upon contravention, pursue declarators thereof, and serve himself heir to him who died last infeft in the fee, and did not contravene, without necessity anywise to represent the contravener. It is always declared, that such tailzies shall only be allowed in which the aforesaid irritant and resolutive clauses are insert in the procuratories of resignation, charters, precepts and instruments of seisin, and the original tailzie once produced before the Lords of Session judicially, who are hereby ordained to interpose their authority thereto, and that 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, and of the heirs of tailzie, and the general designations of the lordships and baronies, and the provisions and conditions contained in the tailzie, with the foresaid irritant and resolutive clauses subjoined thereto, to remain in the said register
ad perpetuam rei memoriam; and for which record there shall be paid to the clerk of register and his deputes, the same dues as is paid for the registration of seisins; and which provisions
_________________ Footnote _________________ * Here the Lord Chancellor noticed the arguments upon the construction of the words
sell, alienate and dispone, which occur afterwards, p. 360.
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And then there is a saving of his Majesty's confiscations or fines.
Without entering at present into other considerations relative to this act, it appears that authorizing certain entails, it requires, in order to make them good, at least against claims of third persons, that they should have prohibitory, irritant and resolutive clauses; and it has always been held, that clauses of each of these kinds are necessary to give the effect to those tailzies which this act of Parliament intends should be given.
Duntreath case; an extraordinary decision.
In construction this also seems to have been settled, that you cannot entail unless there is an express prohibition; you cannot entail by implication. That appears to have been intentionally prevented by some of the expressions used in the act of Parliament. If
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_________________ Footnote _________________
* Edmonstone v. Edmonstone, Nov. 24, 1769. D. P. 15 April, 1771.
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The entail of the March or Neidpath estate was effected by a deed bearing date the 12th of October 1693, but not recorded till the year 1781. It appears from the leases, that the late Duke of Queensberry had possessed the estate from the year 1731 to the year 1781, before this entail was recorded, as the statute requires it should be, yet the late Duke raised a very considerable sum of money upon the estate soon after he succeeded to the Queensberry estate in 1772.
This deed of entail was made upon the marriage of Lord William Douglas with Lady Jane Hay, stating that in contemplation of the marriage, “William Duke of Queensberry, in virtue of the power and faculty reserved to him by the infeftments of the lordship of Neidpath, be thir presents binds and obliges him, and his heirs and successors whatsoever, upon his own proper charges and expenses, to duly and lawfully infeft and sease the said Lord William Douglas, and his heirs male and of tailzie after mentioned, in the lordship of Neidpath, containing and comprehending the several lands, baronies (and so forth), particularly and generally after mentioned, to be holden from his
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Warrandice lands.
The tailzie then, at great length, mentions the particulars which form that lordship, among which are, “All and haill the tenandry of the Holy Cross Kirk of Peebles; and moreover all and sundry the lands and barony of Newlands, the lands and barony of Linton respectively, with their pertinents called Kirkwird and Lochwird; and further, the lands, baronies and others under written.” The particulars comprehended under those words, lordships, baronies and others underwritten, are distinguished in this tailzie as what are called warrandice lands.
Then the entail goes on to state who are the heirs
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Then the heirs of tailzie are bound to confirm the deeds of William Duke of Queensberry, with respect to these excepted lands of Lintoun and Newlands; and then follows this clause, which appears to me not to be altogether immaterial with a view to observations which I shall have to make by and by; “and in like manner it is hereby expressly provided and declared, and to be provided and contained in the resignations, charters and infeftments, and all the subsequent rights to follow thereupon, that all and sundry the foresaids lands and baronies of Newlands and Lintoun, and tenandries of the Holy Cross Kirk of Peebles, comprehending as said is, with the teinds, patronages, offices, jurisdictions and others particularly and generally above mentioned, pertaining thereto and comprehendit therein, shall be redeemable, and under reversion by the said
Page: 351↓
Page: 352↓
Then follow the prohibitory, irritant and resolutive clauses upon which so much of difficulty has arisen in the present case; (those clauses are not the same in the entail of March and Neidpath, as they are in the entail of Queensberry.) “It shall noways be leisome and lawful to the said Lord William Douglas and the heirs male of his body, nor to the other heirs of tailzie respectively above-mentioned, nor any of them, to sell, alienate, wadset or dispone any of the lands, &c. above rehearsed, as well those to be resigned in favours of the said Lord William, in fee, as these reserved to be disponed by the said Duke of Queensberry, in manner foresaiaid:”—(observe here, that speaking before of the lands which were to be disponed by the Duke of Queensberry, in the manner stated in former clause, he is to have the power of disponing; the word “dispone” being the self-same word as the word in the prohibitory clause, and mentioned in the statute as one of the words to be used in the prohibitory clause. The word “dispone,” in the sense in which it is here used primâ facie, at feast means the same as to “dispose of;” for the power of disponing, before rehearsed; is a power to dispose of:)—“or any part thereof; nor to grant infeftments of liferents, nor annualrents, forth of the same; nor to contract debts, nor do any other fact or deed whatsoever, whereby the said lands and estate, or any part thereof, may be adjudged, apprized or otherwise evicted from them, or any of them; nor by any other manner of way whatsoever, to alter or infringe the order and course
Page: 353↓
Then follow the irritant and resolutive clauses, and upon them no objection has been made which has given rise to any argument; but then there follows this permissive clause : “It is hereby provided and declared, that notwithstanding of the irritant and resolutive clauses above mentioned, it shall be lawful and competent to the heirs of taillie a-specified, and their foresaids, after the decease of the said William Duke of Queensberry, to set tacks of the said lands and 1 estate during their own lifetimes, or the lifetimes of the receivers thereof, the same being always set without evident diminution of the rental.” Upon this clause, it is said, on the one side, that it is a permissive clause; but that according to the construction of Scotch tailzies, the author permitting these tacks, has not prohibited other tacks to be made, unless in addition to what he permits, he states what he prohibits, and therefore they say that this, clause cannot prevent the heirs of tailzie from making leases other than those which under this clause they are permitted to make, for they say there is nothing in this tailzie prohibiting their making leases other than they are here permitted to make. On the other hand it is argued, that the obvious meaning of this (I refer to the prima facie, or the English meaning); is, that giving: this, permission is a ground for saying that all other leases except; those which you are here permitted to make must be understood some how or other to be prohibited to be made, and that the general words which occur in the prohibitory clause, namely, “that he shall neither sell, alienate, wadset or dispone,”
Page: 354↓
Powers to grant provisions for wives and children.
The deed then goes on to state, “that liferent provisions shall be in full contentation and satisfaction to the wives of the heirs of tailzie in possession of
Page: 355↓
Provision in case of descent to heir female, to marry, &c. and take name and arms, &c.
There is then a clause which occurs in many English entails, and which generally occurs in the entails of Scotland, “that in case the said estate shall, be virtue of this present taillie, descend and fall to ane heir female, the said eldest heir female shall succeed thereto in haill, without division, and so forth successivè, and that they shall be holden to marry ane nobleman, or gentleman of quality of the sirname of Douglas: at the least, who, and the heirs above mentioned, shall be holden and
Page: 356↓
Clause of renunciation of the right of redemption, reversion, &c. in the Duke of Queensberry.
Then follows this: “And in regard that the right of the lands and lordship of Neidpath, hereby appointed to be resigned in favours of the said Lord William Douglas, and his foresaids, (besides the said lands and baronies of Newlands and Lintoun, and tenandry of the Holy Cross Kirk of Peebles, which the said Lord Duke has reserved power to redeem, burden or dispose upon, in manner above written,) were, by the former infeftments of 1687, redeemable by payment of a twenty-merk piece of gold, conform to the provision of reversion the right of redemption, reversion, &c. in the Duke of Queensberry.
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Page: 358↓
Disposition for maintenance of Lord W. Douglas and Lady Jane Hay.
Warranty against stipends, cess, and other public burdens.
“Dispone” applied to rents.
Queensberry entail, 26th Dec. 1705.
Then there is an obligation to infeft the Lady Hay during her lifetime, which is not material to
Page: 359↓
Such is the charter upon which the questions arise with respect to the entail of Neidpath or March.
Word “sell”importing a gratuitous do nation.
Words “annailzie” and “dispone” coupled in sense.
The entail of Queensberry was made upon the 26th of December 1705, and registered in the Register of Tailzies on the 21st of February 1724, and in the books of Session on the 17th of June 1724. That tailzie is introduced by these words: “Be it known to all men by these presents, Us, James Duke of Queensberry, &c. heritable proprietor of the lands, lordships, baronies, heritable offices and others after specified, with the pertinents: Forasmuch as we having considered the state and condition of James Earl of Drumlanrig, our eldest lawful son, are fully convinced of his weakness of mind, and unfitness to manage our estate, or represent us in our dignities and in our said estate,
Page: 360↓
Page: 361↓
Prohibitory clause omitting word “alienate,” but containing the word “dispone.”
Then follows the prohibitory clause, “that it shall not be lawful to the said Lord CharlesDouglas, and
Page: 362↓
Judgment of Court of Session, that the word “dispone”has not as the word prohibitory virtue as the word“alienate.”
I pause here to observe, that even some of the judicial opinions, the soundness of which you have now the difficult duty of examining, turn upon the circumstance, that the word “alienate” is omitted in this prohibitory clause; and although in the Wakefield case, by force of that generic term, a lease of ninety-seven years was prohibited, it is held that the word “dispone” will not have the same effect. Some of the learned Judges were of opinion, that they would have the same effect; but they differed very much upon that point. I therefore call your attention to the circumstance, that the word “alienate” is not in the prohibitory clause in the Queensberry entail.
Exception and permission, in an English instrument, implies a previous prohibition of what is not excepted and Permitted.
Then follow these words, “except in so far as they are empowered, in manner after mentioned, nor to violate or alter the order of succession foresaid, any manner of way whatsoever;” that is, they are not to “wadset, sell or dispone, nor to contract debts, nor do any other fact or deed, except so far as they are empowered in manner after mentioned, nor to violate or alter the order
Page: 363↓
Prohibition to set tacks for more than life or nineteen years.
Then follows this : “and that the said Lord Charles Douglas, nor the other heirs of tailzie above specified, shall not set tacks nor rentals of the said lands for any longer space than the setter's lifetime, or for nineteen years.” —(One great point
Page: 364↓
Then follow the words, “nor doe no other fact
Page: 365↓
Clause for payment of casualties of superiority and public burdens.
Then follow these words, (which are important words for our consideration, if the law of Scotland operates upon the rent of 3 l. in such manner as it has been argued:) “neither shall the said Lord Charles Douglas, nor any of the said heirs of tailzie, suffer the duties of ward, marriage, and relief, either simple or taxed, nor the feu, blanch and teind duties, nor any other public burdens or duties whatsoever, payable forth of the said tailzied lands and estate, to run on unsatisfied, so as therefor the lands and others foresaids may be evicted, apprised or adjudged from them, for any of the said casualties of superiority, and public burdens *.”
Power to provide for spouses to the amount of 2,300 l.
Then, after making the irritant and resolutive clauses, and also directing that the heirs and parties succeeding should denude on existence of a nearer
_________________ Footnote _________________ * Here the Lord Chancellor entered into a discussion as to the effect of taking grassum upon the rent, the operation of law upon the transaction, and the consequence of the principle established in the Scotch courts by their final decision as to teind-duties, and the mode in which grassum is to be taken into calculation in the estimate of rent for the payment of those duties. The discussion is omitted here, because it is afterwards resumed to the same effect.
See post.
Page: 366↓
Powers to charge 80,000 l. Scots, for portions of younger children.
Then there is this clause : “And also it is hereby further provided and declared, and shall be declared by the infeftments to follow hereupon, and
Page: 367↓
Grassums upon leases taken by Judges who were tutors and curators.
During some part of the time which has elapsed since these tailzies were made, these estates of March and Neidpath undoubtedly (and the estate of Queensberry too) have been let on leases for such terms and upon such grassums as I shall have ox-casion to mention; and it is a circumstance unquestionably of considerable weight, that leases of that nature were made by persons who stood connected with the heirs of tailzie, and holding judicial situations, from which it is fairly enough inferred, that they must have been acting upon their notions of what was the law of Scotland at the time.
Enumeration of leases made by the Duke of Queensberry; Harestanes, Whiteside, Alternate leases, Hallscar, &c.
When the late Duke of Queensberry came into
Page: 368↓
Case of Harestanes.
In Neidpath entail no express prohibition to grant leases.
Statement of proceedings in Court below in the case of Harestanes.
Fifty-seven years lease prohibited.
The lease of Easter Harestanes was granted under the Neidpath entail, in which it is declared, that the heirs of tailzie are not to sell, alienate, wadset or dispone, nor to grant infeftments of liferent, nor annualrent. There is no prohibition of any sort against granting leases; but the deed contains a permissive clause, by which “It is expressly provided and declared, that notwithstanding of the irritant and resolutive clauses above mentioned, it shall be lawful and competent for the heirs of tailzie above specified, and their foresaids, after the decease of the said William Duke of Queensberry, to set tacks or rentals of the said lands and estate during their own life-times, or the lifetimes of the receivers thereof, the same being always set without evident diminution of the rental.” The late Duke had granted £ lease to Alexander Welsh of the lands of Easter
Page: 369↓
Assets of the grantor liable on the warranty.
Lord Wemyss and Lord Elcho having both died, an action of tranference was raised, and the suit was, to use our expression, revived. On the 6th of December 1809, the Lord Ordinary having considered the memorials for the parties, and whole cause, repels the reasons of declarator, assoilzies from the conclusions of the libel, and decerns; that is, again stating his opinion that the lease was bad; but he reserved to the pursuer, (that is the tenant,)
_________________ Footnote _________________ * In the Wakefield case.
Page: 370↓
Statement of proceedings in Court below, in the case of the Earl of Wemyss v. the Duke of Queensberry.
After this decision the late Earl of Wemyss brought an action of declarator against the late Duke of Queensberry; in which he stated, that William Duke of Queensberry, in the year 1731, made up his titles under this entail, but notwithstanding the limitation therein contained of the powers of the heir of entail in setting tacks, he had set or granted tacks or leases of different parts or parcels of the said lands and estates, to endure for a longer term or period than his own lifetime, or the lifetime of the receivers thereof; and that the said tacks or leases had been granted, upon payment by the tenants of fines or grassums, and with diminution of the rental: he then alleged that he was the heir of entail, and entitled to succeed to the lands and estates on failure of the Duke of Queensberry, and the heirs-male of his body; that the tacks or leases had been granted
Page: 371↓
Joinder of processes.
This action was remitted to the previous process of declarator at the instance of Welsh, depending before Lord Woodhouselee. A representation having been given in for Welsh against Lord Wood-houselee's interlocutor, there was another interlocutor pronounced: “Having heard parties procurators upon what is stated in the representation, the Lord Ordinary recalls the interlocutor complained of; and in respect the action of declarator at the instance of the Earl of Wemyss against the Duke of Queensberry and others his tenants is now remitted to the present process,
Page: 372↓
Interlocutor, 12 Nov. 1812.
The Duke of Queensberry died soon afterwards. There was an action of transference against his representatives; and on the 12th of November 1812, the case having been then reported, the following interlocutor was pronounced by the First Division of the Court. “Upon the report of the Lord President in place of Lord Woodhouselee, and having advised the informations for the parties, the Lords sustain the defences in the process of declarator at the instance of Alexander Welsh against the Earl of Wemyss and others, substitutes under the deed of entail; and assoilzie the defenders from the conclusions of the libel, and decern;” that is, the whole Court then concur with the Lord Ordinary, and hold that this lease for such a rent and such a grassum, and such a term, was not a good lease. Then they “remit to Lord Hermand to hear parties on the conclusions of the libel for damages, and to do therein as he shall see just.” And with respect to the process of declarator at the instance of the Earl of Wemyss against the late Duke of Queensberry, and John Anderson and others, tenants of the tailzied lands and estate of Queensberry and others, they also remit the said process to Lord Hermand as Ordinary, in place of Lord Woodhouselee, to hear parties on the conclusions of the same as applicable to the cases of the several defenders, and to do therein as he shall see just. The interlocutor of the First Division of the Court of Session pronounces, that Welsh cannot sustain his lease against the persons who are
Page: 373↓
Questions in case of Harestanes lease. l. Duration 57 years. 2. Grassum.
The case of Easter Harestanes includes two questions, the first, Whether a fifty-seven years lease is an alienation? you have decided that a ninety-seven years lease is an alienation;—and there are some decisions that leases between fifty-seven and ninety-seven are alienations:—another question is, What is the effect of the grassum which was taken in this case of Easter Harestanes?—that is a question common to that and the other cases: with respect to the duration of the lease—the fifty-seven years furnishes a question peculiar to that case.
Case of Whiteside
The next case which was before the Judges of the First Division, was the case of the lease of Whiteside, and with respect to that lease, it was a lease for the life of the tenant. The rent was not less than the rent which was payable under the former lease, but it was insisted that this was a lease made for a grassum, and that therefore it ought to be reduced. The fact that it was made for a grassum, is a finding clear in the case. This farm had been let, together with two other farms; they were afterwards divided in the manner stated in these cases. There is no doubt that Whiteside, which is mentioned as having been let for the same rent, was let upon a grassum; and that the rent in this lease was affected by the
Page: 374↓
Proceedings in Court below, in the case of Whiteside.
14 June 1814.
There was a special interlocutor, first of Lord Hermand, then of the Lords of Session, with respect to this lease; and in order that the case may be fully comprehended and properly decided, it is necessary that the interlocutors should be read: “Having advised the condescendence and answers, in the process of reduction at the instance of the Earl of Wemyss and March against William Murray, and whole processes, conjoins this process with the declaratory action between the parties depending before the Lord Ordinary, in so far as the declarator is applicable to the present case: Finds it stated in the condescendence, and not denied in the answers, that the whole farms, whereof the leases are now under reduction, were formerly let by the late Duke of Queensberry for fifty-seven years; and, with an exception stated by the defender of the lands of Flemington and Crook, under burden of grassums, the interest of which bore a considerable proportion to the yearly rent: Finds it admitted in the answers, that in or about the year 1807, many of the tenants holding leases for fifty-seven years, renounced their leases, and took new ones for periods equal to the terms unexpired of the old ones, but without paying any grassums for their new leases; and that soon afterwards, the tenants of all the farms to which the present discussion relates, whether they had got new leases of the nature above mentioned, or had continued to possess on their fifty-seven years leases, executed renunciations, and accepted
Page: 375↓
Page: 376↓
Proceedings in Court below in case of Whiteside.
3 Feb. 1815.
Decision as to Whiteside and Fingland, on the principle that the lease operates against the prohibition to alienate, and also is in dimiuntion of rental.
When this came before the Court, they pronounced this interlocutor: “They find, that the entail in question contains a strict prohibition against alienation; but a permission to grant tacks of the said lands and estate during their own lifetimes, or the lifetimes of the receivers thereof, the same being always set without evident diminution of the rental: Find, that in the year 1769, the petitioner's father obtained a tack of Whiteside for nineteen years, at a rent of 109 l. for which he paid a fine or grassum of 132 l. 18 s. 10 d.: Find, that in the year 1775, the petitioner's father obtained from William Duke of Queensberry a tack of the farm of Fingland for twenty-five years, at the rate of 50 l. 10 s. for which he paid a grassum of 480 1.: Find, that in the year 1788, he renounced this lease, of which twelve years were to run, and obtained a new lease, for fifty-seven years, of the said farm of Fingland, and also of the farms of Whiteside and Flemington, at the rent of 260 l. 1 6s. 4 d. being the amount of the old rents payable under the former tacks, with the addition of the cess, and rogue and bridge money, amounting to 11 1. odds, for which he paid
Page: 377↓
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Case of alternative leases.
With respect to Neidpath, there was a third case as to the alternative leases. I will state enough to show what is meant by that term. There was a farm called Edstoun. In the year 1731, when the Duke of Queensberry succeeded to the estate, it was rented at the sum of 83 1. 10 s. In 1756, the rent was raised to 85 l. 12 s. In 1769, it was let for nineteen years to Alexander Horsburgh and John Saltoun, at a rent of 149 l. with a grassum, of 193 l. 7 s. 4 d. When that lease expired, a gentleman of the name of Symington obtained a lease for fifty-seven years from Whitsunday 1792; the rent stipulated upon that occasion was 155 l. 7 s. and the grassum 300 l. In 1807, Robert Symington renounced his lease, and obtained a new one,—which is the lease sought to be set aside,—“for the space of thirty-one years, and from and after the term of Whitsunday 1807, which is hereby declared to have been the term of the said Robert Symington's entry, notwithstanding the date hereof; declaring always, as it is hereby expressly provided and declared, that in case it shall be found that the said William Duke of Queensberry is prevented by the entail of his
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Judgment of Court of Session.
In the narrative of this lease, it appears to be a lease the duration of which is to depend upon the decision, when it is obtained, of the Court of Session or the House of Lords, whether it is to be a lease for twenty-nine years, twenty-seven years, twenty-five years, twenty-one years, or nineteen years. Now, according to the law of Scotland, there must be what they call an ish (that is a determination) to a lease : But no man living can tell what it is to be in this lease, until the Court of Session or the House of Lords have said in that or some other case what it may be. This is a lease, which one party says cannot be exposed to challenge, on account of a grassum being taken; the other party says it can, and ought to be affected upon that ground. The Court of Session held at first, that the limit of the Duke's power was nineteen years; but they say the whole transaction is affected by that general fraud which affects the
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These are the cases which appear to me necessary to be stated. I pass over the minor cases.
Points and arguments in the three cases.
1. Harestanes.
Scots Stat. 1449.
The points with respect to these three sets of Meases, may be thus shortly stated. First with respect to Easter Harestanes; the lessees and the representatives of the late Duke of Queensberry contend, that the Duke had power to grant such a lease; that the decided cases prove the power of granting such leases; that the entail, according to its legal construction, does not prohibit granting leases for fifty-seven years, and that, whatever may be the case with respect to a lease for ninety-seven years, a lease for fifty-seven years cannot be objected to; they say, that the rent being equal to the last rent reserved, is equal to that which the law requires; and being equal to that which the law requires, that grassum is not prohibited by the entail, or by any implication, or by any fair understanding of the words in the entail. It was further insisted, that the lease was within the meaning of the statute of 1449, and that the act is in complete force at the present day; though leases are not in the law of Scotland conveyances, but mere incumbrances on the fee or property, and only so made by the statute, inasmuch as the lessees cannot be ejected during their terms while they pay their rents. The words of the act are, “It is ordained for the safety and favour of the poor people that labour the ground, that they, and all others that have taken, or shall take lands in time to come
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Effect of word annailzie in the prohibition, as operating on the Stat. 1449.
Upon this statute, the effect of the word annailzie must be considered. We have decided, that a lease for ninety-seven years is void as an alienation. The present question is, how far that may apply as an authority to a lease for fifty-seven years.
The successor in the tailzie contended, that a lease of this endurance is prohibited by the entail; that any leases of extraordinary endurance are prohibited; that with respect to the statute of 1449, it authorizes only such leases as may be lawfully made, not such as contravene the prohibitions of an entail; that the lease is bad on various grounds, all of which they proceed to state, if made for a grassum. They contend, that the practice did not sanction such leases; and that practice, if proved to exist, could not sanction such leases.
2. Whiteside.
Points and arguments.
With respect to Whiteside lease, the argument on one side was, that such a lease does not fall under the prohibition to alienate, because deeds of entail are by the settled rules of interpretation in the Scotch law strictissimi juris, and a prohibition to alienate, according to such rules of interpretation, does not extend to leasing, and when the entail is so interpreted, does not extend to a lease of ordir nary endurance, though granted in consideration of
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The heir of entail, on the other hand, says, that the lease is comprehended under the prohibitions of the entail; that the construction which is put upon the word rental on the other side, is not the proper construction; that grassum is anticipated rent, within the meaning of the deed of entail, and that it is so when taken upon surrender of former leases; that such dealing with the estate is within the meaning of the words diminution of rental; that upon a lease, twelve years of which were unexpired, if the tenant renounces the lease, and takes another lease, extending the term twelve years, that the grassum taken for the first lease must have some operation.
The tenant contends, that whatever may be the case as between the Duke of Queensberry's representatives as stand ing in his place, according to all the principles of law which ought to affect his case, he is the tenant, and ought to be considered as a third party; that he is a purchaser, that he is contracting onerously, that he is entitled by virtue of the statute of 1449, and he prays that, whether his lease is a good lease or not, the Court will not consider what the case of any other persons may be, because he happens to have a good recourse against the assets of the late Duke of Queensberry. Then he insists, that all the prohibitions must be embodied in expression, that there, is no prohibition embodied in expression, and that the irritancy (if any) may be purged.
3. Alternative leases.
With respect to the alternative leases, as far as the points made on each side arise out of the facts of the case, they insist that those leases are bad, on the same grounds as all the other leases that are to be affected by a grassum; and they say it is
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Queensberry leases.
These include all the points with respect to the Neidpath estate.
With respect to the Duke of Buccleuch's case : That came before the other Division of the Court of Session, and the two Courts differ altogether in their views of thelaw on this most important question.
Leases for nineteen years, with obligation to renew annually.
The Duke of Buccleuch's leases relate to the entail of the estate of Queensberry; and without going through all the particulars of the leases which have been granted upon that estate, they may be represented generally as being leases granted for long periods, grassums being taken upon those leases, and first leases granted to tenants in those tacks which were current, or to strangers under the burden of the current tacks, and with obligations in both cases, to grant a new lease annually for nineteen years during the Duke's life. With respect to that species of lease, they say; that it is not only affected by the circumstance of grassums having been taken, but that it is to be considered as a lease for more than the Duke's life or nineteen years: they say it is a lease for the Duke's life and nineteen years; to which it is answered, that is not a lease for more than the lifetime of the setter or for nineteen year's, because, in order to make the lease good, there must he possession, and that the possession is a possession which at the death of the Duke of Queensberry must
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There is a second class of leases, where the current leases had actually expired.
There is a third class of leases granted without an obligation of renewal, but where the leases renounced were not near their natural expiry; and there were other leases which were not granted till the previous leases had expired, but on which grassums were taken. The validity of those leases was not only discussed in the general case of the Duke of Buccleuch, but also in the case of one of the tenants. With respect to the tenant's right, he insisted likewise upon the circumstance, that he was an onerous purchaser.
Judgment of Court of Session, Second Division, and remit.
In this case, the Second Division of the Court of Session declared the particular lease before them was good, and that the leases in general were good; and in this state of things, the cause came before this House, when you were pleased to make a remit, which has brought before you the collective opinion of both Divisions of the Court of Session, by which it appears that there is great diversity of opinion among the Judges.
Defences and argument for Duke of Buccleuch.
One of the defences of the Duke of Buccleuch, in one of those actions, stated that “the deceased Duke of Queensberry succeeded to the estate of Queensberry in the year 1778, as an heir of entail under the foresaid deed of tailzie, and made up titles accordingly under the conditions therein contained; but after entering on the possession of the estate, he
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Terms of remit
Dom. Proc. July 10, 1817.
Upon the remit, two orders were made by this House, one with respect to the tenant, and the other with respect to the general cause; which lattei was, “that the cause be remitted back to the Court of Session in Scotland, to review generally the interlocutor complained of in the said appeal; and in reviewing the same, the Court is to have especial regard to the fact, that this action of declarator is brought by the executors and trust disponees of the late Duke of Queensberry, as such, against the heir of tailzie, seeking thereby to establish, unconditionally, all and each of the numerous tacks mentioned in the summons, and granted by the said Duke, in the manner and under the circumstances mentioned in the pleadings, and is not instituted by any of the persons to whom such tacks are granted, nor are any such persons parties thereto: that the Court do reconsider the defences of the appellant, and especially whether, in a question between such parties, the leases so granted ought or ought not to be considered as granted in execution of such device,
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There are in print the opinions of all the Judges which have been taken in consequence of this remit. Upon these opinions I will make only this observation : I am either bound to suppose, that the question about the Duke of Queensberry's declarator, as contradistinguished from the proceedings of declarators in general, by the circumstances which are stated in this case, was not a question understood, or that it was a question thought of so little importance, as certainly not to produce information enough from those opinions, to enable those who thought that question of any weight, to look at them, to resolve any doubts they might feel.
Observations on the remit and misunder-standing of the Court of Session.
Question as to fraud upon the entail.
Distinction between cases of heir and tenant.
There was no ground to attribute to me, that I felt a notion that an action of declarator was not the form in which the representatives of the late Duke of Queensberry could proceed in the Court of Session, in order to have it declared that these leases were good. I knew that was the species of action which would be brought in the Court of Session; but the remit was made in the Duke of Buccleuchs case; and the reason of making the remit in that form was, that in the proceedings of the trustees of the Duke of Queensberry against the Duke of Buccleuch, they not only sought to have these leases substantiated, but to be protected from all claims of damages, on the ground that they were good. Much of the contest in this case went on this ground, that whatever might be the effect of granting one such lease on the payment of a grassum, yet there might be such a conduct on the part of the heir of entail in possession, such a comprehensive and vast dealing, buying up the leases of tenants, making them renounce their leases, and letting all the lands
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Analogous case of Roxburghe feus.
In the case of the Roxburghe feus *, where the heir of entail having a power to feu such part of the lands as he should think fit, provided his grants were not made in diminution of the rental, &c. and the heir feued all the lands, taxing the casualties, the House of Lords decided, that this was making such a use of the power of entail, as a court of justice would not permit. As between the Duke and his tenant, if there were no other parties in the cause, you might decide in favour of the leases; but here there might be one principle, it was argued throughout, on which to contend against the Duke of Queensberry, yet a principle that would not enable you to contend against all his tenants, or most of his tenants.
_________________ Footnote _________________
* Ker v. Roxburghe, Dom. Proc. 18 Dec. 1813. MSS. and 2 Dow. 149.
Reflections on the understanding of the Court of Session.
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When the Court of Session was asked, by the terms of the remit, whether the action was an action which he could have maintained, if it was made out that there was in the leases that device, and that fraud upon the entail which the Duke of Buccleuch insisted made part of the system of the Duke of Queensberry, I had not the least idea that it would be considered as a remit, desiring to be informed, whether a man could in the ordinary case proceed by action of declarator. The particular circumstances that led to that particular remit, were of some such sort as I have been alluding to; and I must say, that the remit in its nature has not been well understood, and that it has not received the answer which was expected.
The majority of the Judges seem to have been of opinion, that these leases were good; that grassums could not affect them. And with respect to the word “dispone,” the majority of them were of opinion, that the word “dispone” would have the same effect as the word “alienate.”
Second Division of the Cour fo Session, 10th Feb.1818.
After these proceedings, from this interlocutor, (this case embracing the general consideration, and the additional circumstance that there is an onerous purchaser,) the appeal now comes back to this House. The several points which seem to have been stated in the Courts below, and discussed, involving the merits of the question upon this remit, were, with very little alteration, the same points on both sides as before submitted to the Court.
L.C. 6 July 1819.
In the March and Neidpath entail, the clause about setting tacks is a permissive clause, that is, “notwithstanding the irritant and resolutive clauses
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In the Buccleuch entail, the question arises upon the prohibitory clause, that is to say, the clause against disponing in any manner of way whatsoever, “except so far as they are empowered in manner after mentioned.” The clause then which relates to tacks and rentals, is a clause that they shall not do so and so, it is therefore a prohibitory clause in the terms of it, but still seems to be in some degree permissive also, by the words “except so far as they are empowered in manner after mentioned.”
Rental of the lands, teinds, &c.
To the March and Neidpath entail, there is subjoined a paper which has this denomination: “Rental of the lands, teinds and others, lying within the sheriffdom of Peebles and Selkirk re-spectivè, which did pertain to John Earl of Tweed-dale, and John Lord Yester his son, and were sold and disponed by them to William Duke of Queensberry in liferent, and to Lord William Douglas, his second lawful son, and their heirs of tailzie therein mentioned, in fee, conform to the disposition thereof of the date the 19th day of October last,” and which has particular relation to this present rental. Then they state what the lands are let at. There is, first in the parish of Lyne, I think they call it, the sum or rent of 5,840 l. Scots; then follows this, “Paid out of this in
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Alteration in the law of Scotland as to the valuation of rent in respectofteinds.
According to the law of Scotland at the time when this tailzie was executed, in calculating the teinds, the estimate was made by looking only at the rent reserved, and no benefit was given in that valuation to those who were entitled to the teinds with respect to any grassums that had been taken; but at a period long subsequent to this, the Court of Session having reconsidered the statutes, with reference to this matter of teinds, put a construction upon the words
* “the rents of lands constantly paying;”
_________________ Footnote _________________ * Originally by decreets arbitral of Chas. I. dated 2 Sept. 1629, upon submission by titulars, proprietors and other parties interested; ratified in Parliament by act 1633, c. 17. See the decreets, subjoined to the acts of the reign.
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Doubt as to the authority of the Court to give a new construction to the words of the Scots statutes 1633.
This was a very just alteration as to any question between the parties entitled to these different species of property; but how the Court of Session, after their predecessors, for nearly a century together, had said that the statute afforded the rule, and the words were what they were to go by, could give a construction which the words do not bear, in order to reach the justice of the case, is a difficult question, which ought to have been discussed upon the remit, but has been altogether neglected. I am not saying, that because this has been done in a question between the person entitled to the teinds and the owner, that therefore it is applicable to heirs of tailzie and onerous purchasers; that is another question; but the question is material for this reason, that this alteration of the law, by necessary consequence reduces the clear rents of the March and Neidpath and Queensberry estates in a very serious degree.
Effect of Scots statutes 1685 and 1449 as to long tacks.
The statute 1449, does not support a lease prohibited by a tailzie, framed according to the statute 1685,
As to the question, what is the effect of the statutes of 1449 and 1685 taken together, with respect to a tack for fifty seven years; supposing, for argument's sake, that the March and Neidpath entail must be considered as prohibiting a tack of fifty-seven years
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We have been told again and again, that we are to proceed on the matter upon that system of interpretation that he who runs and can read may fix instantly the interpretation; yet, notwithstanding all these dicta, and the representations of the great character of the heir of tailzie, most assuredly I may say, as to these decisions about estate tail, that those who have run and read, have felt very different convictions, and entertained very different feelings with respect to the interpretation to be put on what they have so read. Looking at the opinions of the Court of Session, it is very difficult to reconcile their opinions in a matter in which no two men who run and read it is said can differ.
Observations on the pleadings and the necessity and purpose of the remit.
Pleadings against the leases on the ground of fraud.
It was stated at the bar, on the hearing of this case, that the present proceeding was not to be looked upon as a claim for damages against an heir of entail, or his representatives, on account of his having contravened the prohibition; that it was not
_________________ Footnote _________________ * By this statute for the encouragement of agriculture, leases, which before had been mere personal contracts, were established as
quasi real rights against general heirs and purchasers of the inheritance.
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Conjecture as to the opinions of the Scotch Judges upon the question of fraud on the entail.
If I am to look at the opinions of the Judges, in consequence of this remit, as amounting to this, that a court of justice is not to change the law, (and God forbid they should change it!): if I am to look at what I read in those opinions, as pointing out, that although the Duke of Queensberry has made deeds to the amount of three or four hundred, although he has made tacks, and taken large grassums, and procuring the tacks to be renounced, has let the lands again, and so covered the whole estate with these tacks, if I am to look at those opinions as declaring that he has not thereby exceeded his power, that he has only done what it was lawful for him to do, it is very difficult to imagine in what cases those who make claims against him can say, that what it was lawful for him to do he has fraudulently done.
Cases in English law of illusory appointments.
We have, in our own law, cases, where men acting according to their powers, may abuse them as to the objects of the powers. These are difficult cases to decide, and the Judges should take care they are not misled by the idea, that because powers may be abused, there has been in the cases put abuses of the powers. A noble Lord
*, in one of the cases of this kind, had a power of appointing a certain sum of money among his younger children under a settlement. He made an appointment to one of those children, who was at that time at death's door in a consumption. What was the object of this appointment? It was, that if the child died, the
_________________ Footnote _________________ * Case of Lord Sandwich. See 11 Ves. 479.
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Difference of opinion on the question of fraud.
The Judges differ very much upon the point. Some of them are quite clear this was a device, and that it cannot be sustained; others being of opinion that this was nothing more, in a great variety of instances, than a legal exercise of that power which the Duke had a right to exercise.
This remit has been treated as if those who had the honour of advising this House had really doubted whether the law of Scotland would permit such a thing in general cases, as bringing an action of declarator by the representatives of the deceased, to have the acts of the deceased cleared from all doubt, and difficulty, and controversy. Certainly your Lordships did not mean to express any such doubt.
Observations on the memorials.
In looking at the memorials which were presented when this judgment was to be applied in the Court of Session, I find what passed in this House treated in those memorials in a manner of which I know no example, and of which I trust I shall never see another instance. Your Lordships are in the habit, for the sake of assisting persons in doing justice to the suitors in the Court of Session, of endeavouring to put into the possession of those who are the agents of the parties all the doubts and difficulties which have occurred to your minds upon the subject. It is accorded as an assistance to those who are afterwards to discuss the points below; but it never was intended, that when such notes are handed out to those who are to deal with the case below, they are to use them as
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It is supposed, that those who advise your Lordships, have very little notion of the difference between an English entail and a Scotch tailzie, because I observed there seemed to be this difference between persons claiming under a Scotch entail, and persons claiming under an English entail; that leases of short duration, under a Scotch entail, have been sustained against prohibitions, and that that possibly might arise from the circumstance, that a person making an entail might be presumed not to mean to prevent ordinary leases being granted of the estate; although if the term “alienation” applies to leases at all, it is difficult to say why it is not to apply to those of short as well as those of long duration. A lease of short duration was by the Scotch Judges held good; whereas our Judges have held leases made by a tenant in tail as voidable, not as void. Upon reconsidering that question, I am at
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Long leases alienations by the law of Scotland at all times.
Doubt as to the principle of distinction between long and short leases, on the question of alienation.
All tacks alienations pro tanto.
In applying the word “alienation” in the Neid-path case, in construction, I am perfectly satisfied that whatever distinction there may be, (if there be a distinction.) as to the effect of the word “alienation,”that word in all time has prohibited a long lease in Scotland. I formed that opinion upon the ground that the term was not now to be applied for the first time as prohibiting such a lease. If the law of Scotland be thoroughly investigated, it will be found there was no period when it was not an alienation. Holding that a long lease was an alienation, the next question is, Upon what principle,—for this is what I want to have sifted and examined—upon what principle is it to be said a short lease is not an alienation? The text books, and the authorities which decided the Wakefield case
*, show that a long lease is an alienation; and it is now supposed, because they have said a long lease is an alienation, and have not said a short lease is an alienation, that it is to be concluded that a short lease is not an alienation; but I must find some principle on which the distinction has been made.—Now those who
_________________ Footnote _________________ *
Montgomery v. E, Wemyss, D. P. Dec. 1813. MSS. and 2 Dow. 90.
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Length of lease allowable must be ascertained upon entail, as in case of inhibition, death-bed, &c.
It is said, and I agree it has great weight—what sort of a situation will you put all persons into, if you give a general sense to such words as “alienation” or “disponing?”—Perhaps it is a little too late to discuss that, after the general sense has been given, as far as leases are concerned. But it has been often asked, (and the papers in this cause go a great way to controvert the Wakefield case, but being settled we shall be bound by it,) How are we
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Questions in the cause.
We have had these arguments at our bar, as if they were the most unfortunate people as to landlords; and yet, if you look at their tacks, they seem so to deal with their landlords, as we have been told, if we were to insist on landlords dealing with their property, we should place them in the situation of not knowing what they should do, or forbear to do. You are not to place persons under the harrow of those difficulties, if the instrument has not placed them there; nor are you to be astute to find, that the instrument has a meaning to subject them to such difficulties; but if, in the true legal construction, they are exposed to them, they must submit. The instrument under which they claim is
_________________ Footnote _________________ * See post p. 416, and notes. †
Gordon v. Milne, id. 7008; and
Wedgewood v. Catto, Fac. Dec. 13 Nov. 1817.
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Leases for nineteen years, with covenant for renewal.
Leases for nineteen years, with covenants for annual renewal, good.
There are some points upon which I agree with some of the Judges—in some cases with a majority of the Judges—and I have the mortification to differ from a majority of the Judges in others. There is one very important part of this case, which is pronounced, I think, as the judgment of them all, in the interlocutor of the First Division of the Court—that is, with respect to those leases (I lay grassum out of the question for the present) in which the late Duke of Queensberry, having power to set for lifetime or nineteen years, set for nineteen years with a covenant to renew. It is contended that was a lease he could not make within the meaning of the charter, as it amounts to a lease for the life of the receiver, and eighteen years after. If so, it appears to me to be a
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Whether taking the teinds affects the transaction, is a distinct point; taking a grassum cannot affect it in any other way than in a higher degree. There can be no doubt, that, generally speaking, a man would give more of grassum, if grassum can be legally taken for a lease of this sort, with such a covenant, than for a lease without; but in that point of view the question by which the lease is to be affected, is not upon the duration of the lease, for as a lease it has
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Sense of the word dispone.
The tailzie of the March and Neidpath estates has been adjudged
* to prohibit long leases. The word “alienate” occurs in the Buccleuch case in different parts of it, but here also I take it to be clear law which never must be departed from—I mean, unless it is authorized by decisions—that when the statute of 1685 has required prohibitory clauses, irritant clauses, and resolutive clauses, those who state there is an effectual prohibition against onerous purchasers, must find the terms in which the prohibition is conveyed in all those clauses. Now it is quite clear that the word “alienate” is not in some of the clauses in the Buccleuch case; and that introduces another question in this case, likewise of considerable importance. Those who have had this charter to interpret,
_________________ Footnote _________________ * In the
Wakefield case, D. P. 1813. MS. and 2 Dow, 90 and 206, et seq.
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“Dispone” equivalent to “alienate.”
Upon the question as to the word “dispone,” according to its sense in the law of Scotland, whether it is equivalent to the word “alienate,”—I have again and again read this case and all the former cases—I have again and again taxed myself to the duty of considering what is the meaning of this word “dispone,” as it has been understood in text writers, in charters, in writs, in statutes; and in many of them, I am of opinion, that the word “dispone” is as effectual to prevent a lease of a hundred years, as the word “alienate” is.—That is my opinion. It would be pedantry in me to read all the doctrines which led me to express that opinion which I, for one, entertained on the word “dispone;” and I have the satisfaction to see, that the Judges below were not so much disturbed by that opinion, as they were by our notions of alienation in other cases.
The word “dispone” does not apply to leases as to duration, it only applies to leases in respect of gras-sums; and therefore it clears the way to the consideration, what is the effect of a grassum? because, if you held that the word “dispone” would not authorize such a decision as the word “alienate”
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Question whether heir of tailzie, where there is no prohibition, can diminish the rent.
If heir of tailzie so restricted, query on what principle.
When this case was argued here before the remit, there was no argument at the bar, nor any thing in the papers, which induced the raising, much less the discussion, of a question, whether an heir of tailzie, where there was no prohibition, could diminish the rent? Whether he could let below the last coming rent? I now see (and that makes this case of infinitely greater importance than I understood it to be then) that it is introduced as a question by no means determined, although the notion that an heir of tailzie had no such power, was founded upon the opinions of great and eminent lawyers, and those who now quarrel with that doctrine were the persons who brought those opinions here for the assistance of this House. I think there is one judgment * at least, in which some Judges of great eminence in Scotland have gone the length of saying, that if the rent was lessened, particularly, if much below what it was, (and see what a state of law you are getting into, much and little, long and short), that they should hold that to be fraudulent. From this it appears, how very dangerous it is to determine any thing not before us for judgment; and it becomes necessary to consider, if it be the law, that a tenant in tailzie cannot let below the rent, independent of actual terms of prohibition, on what principle that is said to be law. It cannot be the law on strict construction, because there is nothing on which to put it; and therefore it must arise out of some principle, of which we ought to satisfy ourselves.
_________________ Footnote _________________
* The Wakefield case, see post. 417.
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In these papers, much is also said about what are supposed to have been treated as implied prohibitions. I cannot charge myself as the first to denominate the cases of the Mansion-house, of Policies of illusory rent, and other cases, as implied prohibitions. I expressed a doubt as to the proposition which was so broadly stated in argument, that a tenant of tailzie was “absolute monarch
*” of his estate in every particular where he was not bound by express prohibition. I now venture to observe as to the law respecting the Mansion-house and the Policies, that if they are not implied prohibitions, I may take the liberty of stating them to be something like limitations of the powers of an absolute monarch. What is the principle here which binds a tenant in tailzie, although restricted by no words in the charter. When the act of 1685 gives a man power to comprehend in tailzie all he chooses to comprehend in that tailzie, and where he does comprehend the Mansion and the Policies, and where the prohibition does not strike at the Mansion-house and the Policies—what is the principle, I say, on which it has been held, both below and in this House, (particularly in the Roxburghe case—a case which may not form any precedent to decide this, but in that case in effect, if those feus had been held good, it was reducing the mansion-house of Roxburghe to the state of a stone quarry) that such a dealing as to the Mansion-house and policies was illegal, though not expressly prohibited. Such is the effect of the decisions, though I am not able to
_________________ Footnote _________________ * An expression frequently used in the argument for the appellant, as to the powers of an heir of tailzie, so far as he is not expressly restricted by the prohibitory, &c. clauses of the entail.
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Illusory rent.
Prohibitions implied on principle of presumed intention.
So as to the cases of illusory rent, if I am to look at the statute of 1449, and what some of the Judges have said on that statute, I find it extremely difficult to say what is an illusory rent. There has been an attempt to determine what is illusory, but our decisions do not supply the principle upon which we can determine that to be illusory, provided we read the statute of 1449, as giving the power by which the effective lease is granted. When, therefore, this is stated to be an implied prohibition, and to be an implied prohibition destroying all the effect of strict interpretation, I ask those who say that nothing is out of the power of an heir of tailzie, except what is put out of his power by the intention and meaning of the entail, embodied in actual expression, to show how they account satisfactorily for the cases to which I have alluded. They may account for them very satisfactorily, for aught I know, upon the doctrine which lays this down as a general rule, without any exception whatever; and yet, on the other hand, I have been quite unable to discover what is the
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The great and important question remains, and undoubtedly it is a great and important question in every view that can be taken of it, if the doctrine with respect to grassums is allowed. If taking gras-sums is not to be considered as “ evident diminution of rental,” which are the words to be construed, we see what may be done with respect to estates tail in Scotland. We may indeed be surprised at what has not been done with such estates. On the other hand, if you do hold that taking grassums is, in the sense in which I speak of it, prohibited, you deny legal effect to acts which have been sanctioned by practice, and defeat the provision and the means of providing for wives and children; but, much as such consequences might be deplored, we cannot, with a view of avoiding them, venture, in judicial decision, to declare that to be the law which is not so. Those evils must be remedied, if necessary, by the Legislature. The question, therefore, comes round to this, What is the effect of grassums with respect to such leases as have been granted under these entails, having due regard to the principles of interpretation, as affecting the construction of these deeds; having due regard also to what has hitherto been done in practice, and to what has hitherto been established by decision?
9 July 1819.
Valuation of teinds.
It has been intimated to me, that the teinds in one of these estates were valued about the year 1720;
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Dispone and dispose of.
With respect to the meaning of the word dispone, I found my opinion, not only on what I conceive to be the legal sense of the word, as contradistinguished from that strict and peculiar sense which belongs to an instrument known to the Scotch law by the name of disposition, but on looking at the meaning of the words dispone, and dispose of, in the two deeds of entail under our consideration, and all the parts and clauses of both the deeds, containing the words “dispone,” and “dispose of,” and “dispone upon,” and “dispone thereupon,” and so on.
Dispone.
Elgin v. Wellwood.
I understand there has been a decision
* of the Court of Session subsequent to this, by which a different construction has been put upon the word. There was a great difference of opinion upon it, and that with respect to setting tacks. In the case of The Earl of
_________________ Footnote _________________ *
Elliot v. Pott, March 10, 1814.
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“On the part of the Earl of Elgin, I hereby offer to enter into a lease with you for 999 years from Martinmas next, of the farms of Wankirclu and Greenhill, possessed by Thomas Purves, excepting that part thereof lying on the north side of the road from NorthQueensferryto Torryburn of Craigs;”—
the rent is a peculiar sort of rent, three bolls of oatmeal per acre, besides “a grassum of 12,000 l. sterling, bearing interest from Martinmas next, but the grassum not to be payable during your lifetime.”—The grassum, therefore, was to be paid at a subsequent period.—“It is understood, that Lord Elgin is in the mean time to find security for that sum to the satisfaction of Mr. Thomas Adair, writer to the signet;”—and then there is a provision with respect to the quantity of acres;—“and it is further understood, that by your acceptance of this offer, you agree to enter into a lease with Lord Elgin for the same period of years, at the same rent, and for a grassum in proportion to the extent to be fixed, according to the grassum now offered, of all the land lying to the west of Pitliver House, and belonging to you, which you are at liberty to let for that period of years, in terms of the entail of your estate, but this only in case his Lordship should incline to enter into such a lease.”
The power of leasing under the tailzie, in that case is expressed in these words: “and with this power and faculty, as it is hereby expressly provided
_________________ Footnote _________________ * Since decided against the appellant, D. P. cases of 1820,
post.
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999 years, whether a tack.
The Court below were of opinion that this tack for 999 years is a good tack; and the question to be discussed, whenever that cause comes for decision, will be of two kinds; first, with respect to grassum, upon which I observe, in the note I have taken, the counsel at the bar stated, not one word was said in the Court below; the next question will be, Whether a 999 years estate is really a tack? whether it is in Scotch law a tack? The Court were of opinion, it was a tack, under this power to set such tacks as the heir of tailzie thought proper, that this 999 years could be sustained. It was argued at the bar, that it was no such thing as a tack; and you will have to decide whether 999 years is to be considered as a tack under this power and faculty; and if it is, what is the effect of the grassum? I have thought it my duty to mention that case. Though it is a case subsequently decided, it contains the opinion of the Court of Session. It has so much of authority, (though subsequent to the case before your Lordships), as belongs to a case that is under appeal.
Harestanes lease.
Long leases an alienation.
The Harestanes lease has been reduced and declared to be null, by the First Division of the Court of Session, upon two grounds, first, upon the ground of its duration; secondly, upon the ground of the grassum. If it is a bad lease on the ground of duration, it would not be necessary, in that case, to show whether it was a good or a bad lease on the ground of grassum; but if you hold it to be a good lease, notwithstanding it was for a duration of fifty-seven years, then it will become material to consider what
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Leases only personal contracts for the possession of land.
How far converted into real rights by Scots Act 1449, quære.
In respect to forfeiture, long lease, or grassum, an alienation.
Soas to church lands and crown lands.
Long lease an alienation, because not of ordinary endurance, nor in proper administration of the estate.
Whether the lease is too long, the same in the cases of forfeiture, &c. as in the case of tailzies, yet those have been and must be made the subject of judicial investigation.
On looking at the grounds of the opinion, that a ninety-seven years lease was an alienation, and was not a tack, it appears the Court held, that according to the law of Scotland, except so far as the effect of the statute of 1449 is to be considered, a lease, though quite different from an infeftment, a disposition, and so on, and quite different from an alienation understood in the special sense of alienation, that is, a transfer of property, that a lease, although it is in truth nothing more, either in the law of England or in the law of Scotland, than a personal contract for the possession of land not transferred to another, and converted only into a real right, so far as the statute of 1449 does convert it into a real right; yet they were of opinion, not on any speculations of theirs, but on doctrine as it was to be found in their books, in their statutes and instruments, that a long lease was an alienation; and, when you look at what is to be found with regard to particular heads of law in the law of Scotland, (though I am not now stating this to afford a direct inference with respect to what should be the construction of a tailzie,) you will find that, with respect to forfeiture
*, for instance, a long
_________________ Footnote _________________ * See
Home v. Oldhamstocks, Diet, of Dec. 4684.
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_________________ Footnote _________________
* Dalziel v. Caldwell, Diet, of Dec. 4685.
† Chrystisons v Ker, Id. 3226; Bogle v. Bogle, Id. 3235.
† Upon the question of alienation see Stair's In 3t. 1. 2, tit. 2, s. 25, and 1. 3, tit. 3, s. 30; Craig, 1. 2; Dieg. 10, e. See also a case as to tacks of Crown property, with diminution of rent, A. v. B. Diet, of Dec. 7854.
§ A. v. B. Diet, of Dec. 7938.
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Sir Ilay Camp-bell's opinion.
Nineteen years a lease, and not alienation.
Sir Ilay Campbell, upon the first advising and decision of the Wakefield case, says, “Long leases are alienations, and leases of ordinary endurance are not alienatipns. My opinion is just that of all your Lordships. All of us know, first, that a lease may be granted by an heir, which is not an alienation; and, secondly, that a lease may be granted which is really, substantially and truly an alienation. Now it is unnecessary for me to bring under your Lordships view, examples of the two extremes, because they must be obvious; for leases for one year or two years, or in Craig's time for ten years, or in the present day for nineteen years, are not alienations. But, on the other hand, will any man say with candour, or is it possible for a lawyer to maintain, that a lease for a thousand years or ten thousand years, for some-thing much below the present rent, is not an alienation?” The difficulty commences when we come to inquire what is long and what is short, and what is too long and what is too short; and we find on this grave authority (for undoubtedly that of Sir Ilay Campbell must be taken to be a grave authority, he being Lord President of the Court at that time, and having great occasion to consider these subjects), a judicial opinion, that nineteen years is not too long to be a lease, and not an alienation. This doctrine of Sir Ilay Campbell led me on a former occasion to say, “upon what particular ground they found that he (the tenant) was to have a lease for nineteen years, I am not able to learn from the papers before us. I take for
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Difference between heir of entail and heir of tailzie.
Long lease void, because not for necessary management.
This principle not applicable to short leases
That an heir of tailzie in Scotland differs from an heir of entail in England in some respects, could not be unknown to me. An heir of entail in England has an estate that may endure for ever; an heir of
_________________ Footnote _________________ * 32 Hen. 8, c. 28, s. 1, 2.
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Rule of English law as to leases granted by tenant in tail, after the statute de donis. Bacon's Abridg. tit. Lease
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In a Treatise upon Leases, which I believe was written by Lord Chief Baron Gilbert, and certainly is one of the best compositions on leases we have in our law, he says, “If a tenant in tail, after the statute de donis, had made a lease for years, and died, this lease was not absolutely determined by his death; but the issue in tail was at liberty either to affirm or avoid it, as he thought fit; and the reason why such leases for years were not holden to be absolutely determined by the death of the tenant in tail who made them, was either”—(see now how near this comes to a Scotch tailzie)— “because they were drawn out of an estate of inheritance, which by possibility might continue for ever; and this was but a reasonable liberty given to the issue in tail, because it might well be supposed that his ancestor was not qualified to keep all his possessions in his own manurance and occupation, but must necessarily let them out to farmers and husbandmen, who, by their skill and understanding in the arts of agriculture and husbandry, would be best able to preserve and improve the soil, and by their yielding an annualrent or income to the lessor or tenant in tail himself, would enable him equally to provide for the necessities and exigencies of himself and his family.” Our Judges, who have not the power which belongs to the Judges of the Court of Session, upon this principle of policy would not hold the leases absolutely void, but voidable. The estate tail, being an inheritance which might endure for ever, was an estate out of which a nineteen years lease might be drawn. If the issue in tail, or those to take after
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Opinion of Sir Ilay Campbell as to leases under tailzies and the stat. 1449.
A paper was handed up to us, stating a great deal both with respect to leases and with respect to gras-sums, from the same learned person, Sir Ilay Campbell. You will see his authority both for and against any opinions that may be expressed to you to-day; and I consider it a document which sustains again the doctrine that long leases are bad, and that short leases are good. That imposes upon us the task of finding out what are long and what are short, and impels us to find the principle upon which the one is held good, and the other is held bad. In that paper it is stated, that “a lease without an ish at all is not good against singular successors, because it is truly not a lease, but an alienation of the subject, in an incomplete personal form, which cannot be sustained against an infeftment. Suppose then that it is for a limited term of ten millions of years, can this be sustained?—It is impossible. This may be said to be an extreme case on the one side, and a lease for two or three years is an extreme case on the other side. The thing desiderated is to fix a precise line. This is a hard task to be imposed upon Judges, and is much fitter for the Legislature; but till a new law is made, they must necessarily exercise their powers of discrimination according
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In another part he states, that he can find no resting-place until he comes to thirty-one years, or two lives in being at the time of making the lease; and that none of the old lawyers framed out a tack of thirty-two years, because there it seems you get beyond the power of an heir of entail.
Opinion of Sir Ilay Campbell, as to grassum.
Where there is no authority under the entail, the heir cannot lower the rents, except in case of necessity. Semb.
If the heir of entail granting a short lease cannot lower the rent ot one degree above an illusory rent, that is on the principle that he must administer the estate fairly.
He then proceeds to the consideration of the grassums. His authority is undoubtedly of great importance in this matter; and it is quite decisive as to his opinion. He says, “As to the question now raised about grassums, it is entirely new to me.
_________________ Footnote _________________ * Diet, of Dec. 15200. † Decisions, tit. Tack, No, 18.
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Opinion of Sir I. Campbell as to current rent and grassum.
The paper then proceeds to state another principle, which likewise deserves attention on account of the authority from which it proceeds : “By the current rent I mean that which has hitherto been obtained, not a future possible rent which might be got by varying the stipulations, and rejecting all entry-money, or other advantage to the heir in possession. The maker of an entail might no doubt prohibit grasssus;” (and there are unquestionably several entails in which grassums are prohibited; I take those to be of very modern date, when compared with the entails under our consideration, and stated in the cases before the House); “but even this would not always benefit the future heirs; for still the heir in possession might decline to raise the rent, and it would be extremely difficult to
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He afterwards states, that this is the result of his experience upon the subject: “The question, What is a long lease participating of the character of alienation, and what is moderate, amounting to administration only, is no doubt attended with difficulty, because the limits have never yet been precisely drawn; but the question of grassum is of a very different nature, and it is astonishing to me how it should ever have been made a question at all. I have been now upwards of sixty years employed in studying, reading, practising, hearing and determining upon all sorts of questions in the laws of Scotland, and I declare I never heard from the mouth of any lawyer, old or young, or any Judge, nor ever read in any book, nor figured in my own mind till now, that an heir possessed of an entailed property, was or could be under the smallest restraint as to taking grassums upon the renewal of his leases, the entail itself saying nothing to the contrary, and the former current rent under a lease, which perhaps had been granted by the tailzier himself, not being diminished;” (so that his opinion certainly is, that where there was nothing said about it, the rent could not be
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Power of leasing in English marriage settlements at best and most improved rents.
Donee of power taking same rent for himself as for those in remainder, there is a presumption that it is the best; the burden of proof that it is not so, is thrown those who impeach the lease.
If due administration is the principle of decision, it must be applied notwithstanding the difficulty of the rule.
This difficulty has been raised very high in argument. It has been said, no heir of tailzie can know, and no other person can know, when he lets for the best and most improved rent. That the difficulty of
knowing that, is such that you cannot adopt it as a principle. An English lawyer may think there is no great difficulty in matters, in which those who are experienced in the Scots law think there can be nothing but difficulty. There is not a single marriage-settlement in England, that has been drawn for some centuries, where the tenant for life has not a power of leasing, and that power is given to him to lease for the best and most improved rent, and the lease is void if not so made; and yet I believe I
_________________ Footnote _________________ * Dict, of Dec. 15537.
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I will go no farther in the statement of this paper
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10 Geo. 3. Title.
The act of the 10th of Geo. III. is intituled, “An act to encourage the improvement of lands, tenements and hereditaments, in that part of Great Britain called Scotland, held under settlements of strict entail.”
Recital.
The recital is in these words : “Whereas, by an act of Parliament of Scotland, made in the year 1685, intituled, ‘An act concerning taillies,’ all his Majesty's subjects are empowered to taillie their lands and estates in Scotland, with such provisions and conditions as they shall think fit, and with such irritant and resolutive clauses as to them shall seem proper; and which taillies, when completed and published in the manner directed by the said act, are declared to be real and effectual against purchasers, creditors and others whatsoever; and whereas many taillies of lands and estates in Scotland, made as well before as after passing the said act, do contain clauses, limiting the heirs of entail from granting tacks or leases of a longer endurance than their own lives, for a small number of years only,” (the printing is, or for a small number of years only, and the policy of the act is to encourage the improvement of lands, &c.) “whereby the cultivation of land in
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Upon this recital the act incapacitating those whom it prohibits by general words, or if not by general words, by the fact that they were either permitted to make particular leases, or prohibited from making other leases, goes on to provide, “that it shall and may be lawful to every proprietor of an entailed estate, within that part of Great Britain called Scotland, to grant tacks or leases of all, or any part or parts thereof, for any number of years, not exceeding fourteen years, from the term of Whitsunday next after the date thereof, and for the life of one person, to be named in such tacks or leases, and in being at the time of making thereof, or for the lives of two persons to be named therein, and in being at the time of making the same, and the life of the survivor of them, or for any number of years not exceeding thirty-one years from the term aforesaid.”
Here the Legislature seems to consider a lease for fourteen years, and the life of one person, or a lease not for any certain number of years, but for the lives of two persons, or a lease not for any life or lives, but for thirty-one years, as being in some respect equivalent to each other in the ordinary and proper management of a Scotch estate. Then if they are made for two lives, there is to be a special clause about inclosing, &c. and if for nineteen years, the lessees are to fence and inclose the lands; and every lease of above nineteen years is to contain certain clauses for the proper administration of the estate, which it is not necessary for me here to mention:
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Here it must be admitted, that the Legislature had in contemplation the practice of letting, under the rent last received; that they had in contemplation a species of letting with grassum, fine or foregift; that they had in contemplation that species of tack which occurs in this case, a letting in fact before the determination of a former lease; and that they likewise had in contemplation, that if a man let a lease under this act before the former lease was expired, and more than one year before the expiration of that former lease, it was an addition to that former lease, which under the authority of this act would be void.
Then follows this clause, which I apprehend must be supposed to take out of the authority of this act of Parliament the cases referred to in this clause: “That if any taillie shall, either expressly or by implication, contain powers of leasing more ample than are hereby given, the heirs of entail in possession shall be at liberty to exercise all such powers in the same manner as if this act had never been made.”
This clause, in judicial construction, can mean no
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Proviso as to improvements.
The decision that three fourths of expenditure for improvements to be paid by the succeeding heir out of the rent reserved, over and above grassum, questioned.
The act then proceeds to that part of it which relates to the encouragement to lay out money. In one of
the cases of Elliots
*, where a tenant of entail had laid out money on improvements, and where by letting leases he had by grassum got into his pocket that sum of money which he had expended in improvements, and afterwards his estate tailzie ceased, and another person under the effect of the entail came to the enjoyment of the estate; the Court of Session held, that under the true construction of the clause which followed, though that person had received in the shape of grassum so much for the improvements which he had made upon the estate, yet that he had a title under this act, as against the person who succeeded him, for three-fourths of those improvements, to be paid out of the rent reserved to the persons who were to succeed. Taking it for the present to be a right decision, consider what the effect of this act of Parliament is, if grassums are to be taken. The result would be, if a tenant under the tailzie should lay out a large sum of money in improvements, (not exceeding such a sum, the act puts a limit to the amount of the improvements, but supposing that sum of money to be considerable, as in many estates it will be), if he afterwards lets the estate, getting a considerable sum as a grassum, in a case where he cannot let with a diminution of the rent, that a person succeeding to the estate is to pay such proportion
_________________ Footnote _________________ * Trustees of
Sir F. Elliott v. Sir W. Elliott,
1793, Jan. 22. Diet, of Dec. 15622.
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Harestanes, whether 57 years a good lease.
Held void as an alienation.
With respect to the lease of Harestanes, which is for fifty-seven years, the question is, whether it can be supported, considering the principles on which this House has held a ninety-seven years lease bad, or upon the principle upon which, as it appears to me, they have always acted; (I mean in judgment—practice is a different matter)—can such a lease be sustained upon the principle of distinction between long leases and short leases? The Court of Session is of opinion that it is a term which amounts to an alienation, and cannot be supported. If your Lordships are of that opinion, which I humbly state to be mine, that would dispose of the lease of Easter Harestanes. By the list of leases which has been laid upon your table, with a view to show what gras-sums have been taken upon the Queensberry estate, it appears that it was at a very late period indeed before any body dealing with that estate got, even in a very few solitary instances, to a lease of nineteen years. They were of very short duration; and so were almost all the leases contained in the list laid before your Lordships with respect to grassums, leases of very short duration. They show, that the persons dealing with that estate thought they were justified in taking grassums, but not for leases of sixty, seventy, ninety, or a hundred years; and although there are to be found in Scotland very long leases, I find that with very few exceptions in judgment, such leases have not been sustained.
Whether 57, 30, 27 years, or what number of years, is too long for a lease, is to be decided on the principles of fair administration.
The uncertainty shows the necessity of legislative interference.
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It has been asked, if you do not sustain a lease for fifty-seven years, will you sustain a lease for fifty years? will you sustain a lease for thirty years? will you sustain a lease for twenty-seven years? Or, to put the question as the case upon your table requires us, as to what we call the alternative leases, what will you sustain, if you do not sustain fifty-seven? Sir Ilay Campbell answers that question; but if I am to answer, I resort to the principle which cuts down one of those leases, because it is inconsistent with the fair and rational administration of the estate. I should be disposed to say, that with reference to ninety years, or such leases as are mentioned in the act of Parliament, it would be a lease of too long duration. If you ask me, why I say so, I can give you no more satisfactory answer, than that I think it is a rational application of the principle upon which they have held leases too long not to be good. But I do not know, with respect to this, and every other part of the case, any thing which appears to me to deserve so much and so strong recommendation to have these matters all settled by Parliament, as the state in which the power of leasing in Scotland exists.
Opposite inconveniences of prohibiting and permitting the taking of grassums.
In respect of other leases, it becomes extremely important that some such measure should be adopted: it would leave the law of Scotland in a cruel state, if on the one hand grassums cannot be taken in which the families of heirs of entail may be interested; I mean their widows and their children; for it is impossible, looking into the matter historically, to deny that this method of taking grassums has been frequently resorted to, to enable the heirs of
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Power of Judges to affect statutory entails, on grounds of policy, questioned.
Alternative leases void for uncertainty.
The power of judges, in this respect, may be doubted. Upon that subject, as it applies to English law, I have formed an opinion, which leads me to think, that the judges of this age, in England, would not have been permitted to get rid of the statute of English entails, as judges of that age did soon after the passing of the statute de donis.
Action of declarator as to right, a useful proceeding in Courts of Scotland.
English leases under a power void for the excess only.
Leases for a certain duration subject to be defeated upon a contingency.
The next subject is the alternative leases. The Division of the Court of Session, which has decided upon the alternative leases, seems to have been of opinion, that those leases, in the first instance, might be good for twenty-one years, or that they might be good for nineteen years; or in the first instance, for nineteen, and then for twenty-one years, (I do not recollect which) were it not that they were
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_________________ Footnote _________________
* In the Courts of Equity. Campbell v. Leach, Ambler, 740; Shannon v. Bradstreet, 1 Schoales & Lef.52. Excessive leases are held void at law. Hardres, 398—As to the authority of Leach v. Campbell, see the observations of the Lord Chancellor in his judgment upon the case Ex parte Smith, 1 Swanst. 336.
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Question as to grassum.
Conclusions and reasons of the first and second division of the Court of Session.
Supposing these leases to be good in other respects, the next, and the most important question is, whether the taking a grassum is that which leads to the conclusions, which are to be found embodied in the interlocutors of the First Division of the Court of Session, with respect to the March and Neidpath estates; or to those which are to be found embodied in the interlocutors of the Court of the Second Division, with respect, to the Buccleuqh estate. What the principle is, upon which the First Division of the Court proceed, we know; for they, in their interlocutors, state expressly the grounds and principles upon which they proceed. What was the principle, upon which the Court of the Second Division proceeded, is to be collected, as well as we can collect it, not from the terms of the interlocutor, but from such conclusion as may be found to arise out of the opinions delivered upon the subject. That interlocutor does not enter into a detail of the grounds of the opinion, in the same way as the interlocutor does with respect to the March and Neidpath estates.
Different expressions in the different deeds of entail.
The Buccleuch entail wanting the word “alienate,” whether lease with grassum prohibited.
Question as affected by expressions and provisions manifesting the intent of the authors of the entail.
Supposing the doctrine to be against grassum, you cannot apply that doctrine to the Buccleuch property, unless leases with grassum are prohibited in the true construction of that deed of entail, although the word “alienate” is not in the deed. If you are of opinion, that the operation of that deed of entail would be the same without that word as with it, then the question as to grassum arises with
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Provisions of Neidpath entail.
The Neidpath entail provides, “that it shall be noways lawful to the heirs of taillie, nor any of them, to sell, alienate, wadset, or dispone any of, the said haill lands,” and so on, “or any part thereof, nor to grant infeftments of liferents, nor an-nualrents furth of the same, nor to contract debts, nor do any other fact or deed whatsoever, whereby the said lands and estate, or any part thereof, may be adjudged, apprised, or otherways evicted from them, or any of them, nor by any other manner of way whatsoever, to alter or infringe the order and course of succession above mentioned.” And after the irritant and resolutive clauses, by a subsequent clause “it is provided, that notwithstanding of the irritant and resolutive clauses above-mentioned, it shall be lawful and competent to the heirs of taillie a-specified, and their foresaids, after the decease of the said William Duke of Queensberry, to set tacks of the said lands and estates during their own lifetimes, or the lifetimes of the receivors thereof; the same being always set without evident diminution of the rental.” There is then a power of providing for their wives, and for their younger children.
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Queensberry entail.
Meaning of word “dispone” ascertained by the context.
In the other entail, after stating what it shall be lawful for the entailer himself to do, it proceeds to state, “That it shall not be lawful to the said Lord Charles Douglas, and the heirs-male of his body, nor to the other heirs of tailzie above mentioned, nor any of them, to sell, wadset or dispone any of the foresaid earldom, lands,” and so on, “nor any part of the same, nor to grant infeftments of liferent or annualrent out of the same, nor to contract debts, nor do any other fact or deed whereby the same, or any part thereof, may be adjudged, apprised, or anyways evicted from them, or any of them, except so far as they are empowered in manner after mentioned, nor to violate or alter the order of succession foresaid, any manner of way whatsoever.” These words, “any manner of way whatsoever,” appear to me to have relation to every thing tha tis before prohibited; and when in an antecedent part of this entail, it is stated, that the author of this tailzie may dispone in any manner of way whatsoever, and the others are here prohibited to dispone in any manner of way whatsoever, it appears difficult to say, under such expression, that the word “dispone,” meant only to prevent what is technically called disposition; and these words, “except so far as they are empowered in manner after mentioned,” apply to a special prohibition, among other things, of granting leases, which special prohibition is in these words: “That the said Lord Charles Douglas, nor the other heirs of tailzie above specified, shall not set tacks nor rentals of the said lands for any longer spaces than the setter's lifetime, or for nineteen years, and that without
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The provision to be made for spouses by this deed went to the extent of a thousand pounds for one—to a larger sum for two—and if three, it might amount to about two thousand three hundred pounds; and there was likewise a provision for daughters and younger children, amounting to the sum of fourscore thousand pounds Scots, which would be between six and seven thousand pounds sterling.
Such was the nature of the instruments; and the question arises, (regard being had to the provisions contained in them,) whether, according to the law of Scotland, grassums could or could not be taken upon such leases as the Duke of Queensberry has thought proper to grant?
Practice as to leases of private property.
With respect to the practice as todeases of private property in Scotland, the counsel for the respondents have laid before you a list of leases which have been made with grassums. Those leases, I think, with respect to their duration, you will find to be generally very short; some of them certainly of considerable length; and with respect to the periods at which those leases have been made not going so far back by any means as the year 1685, when the statute of tailzies was made.
Arguments as to the alleged practice.
Those who encounter the argument drawn from this practice, say, that the list is not confined to leases of entailed estates, but that, on the contrary, by far the greater part of the lands mentioned seem to be unentailed; and it may be worth attention to look into
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Practice of taking grassum in the Queensberry estate by tutors in high judicial situations.
With respect to the leases of the Queensberry estate, it certainly does appear that, although this estate was entailed in 1705, grassums were taken within a very few years of that date; and that the grassums continued to be taken upon it, (the leases being short, and the grassums in general not being large, except in some instances), down to much later times; and it is to be observed, that this practice with respect to the estate of Queensberry, carries with it the authority which belongs to the circumstance, that two of the tutors or curators, or whatever they may be, of the Duke of Queensberry for the time being, letting these leases with grassums, were persons in the highest situation of the law in Scotland.
Arguments as to the practice appearing by the lists.
To answer the observation that these practices
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Page: 444↓
Practice of appellant and his family.
Difficulty of access to cases upon entailed estates.
To this I think must be added, that the persons who now complain, Lord Wemyss himself, or that family at least, granted leases with grassums. On the other hand, it must be admitted, that great part of the entailed estates in Scotland do not appear, by any evidence we have before us, to have been in the hands of persons who have let leases for grassums. This circumstance, however, again, is to be taken into consideration with regard to the defenders, that there may have been very great difficulty on the part of those who were to endeavour to find out what had been the practice as to those entailed estates. It is quite obvious, undoubtedly, that the very importance of this point would lead persons to take a great deal of care, how they afforded the means of information to those prosecuting this cause, as to the circumstances in which their own estate stood.
Practice as to church and crown lands.
Irregularity in practice as to church lands.
On the head of practice, the respondents again refer to the practice with respect to Crown lands, and the practice with respect to Church lands. It is not my intention to go through all the reasoning upon that subject. I think it may be stated as to Crown lands, and also as to Church lands, in
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Decisions in favour of grassum.
Case of Denham v. Wilson, 15 Jan. 1761.
Denham v. Wilson.
They have also stated many decisions of the Court of Session in Scotland, in which they represent that the right to take grassums has been established, and they cite a great many instances in which, as far as they go, there has been a general impression in the Courts of Scotland, in favour of the practice, as far as it is established by what, the Judges have said, and what they have done, and what they have forborne to do or to say. In the case of
Sir Archibald Denham v. William Wilsont,
† writer in Edinburgh as that case is stated in the papers on your table, and taken, as I understand, from the papers in the cause, “Sir William Denham of Westshiell, of the
_________________ Footnote _________________ * As to the beneficed clergy under prelacies, by the Scots Stat. 1581, No. 101; and as to all ecclesiastical persons, including by name bishops, abbots and priors, by the Scots Stat. 1585, No. 11. † See
ante, p. 393–4. † Dict. of Decis.
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Implied prohibition on succeeding heir to keep down the annuities charged on the estate out of the proceeds, although there is no clause in the entail directing such payment. This is required on the principle that the interest of successors is to be regarded.
Whether you are to call it an implied prohibition, or whatever else you may call it, it appears to me to be admitted in the papers before us, that the succeeding heir of tailzie was to keep down annuities out of the proceeds of the estate, and that he was likewise to keep down the annual rents of the heritable debts of the tailzier, with which the estate was chargeable, although in the tailzie there was no clause which ordered him to do so; and those duties of keeping down the annuity and the annualrents by the persons representing the estate, are duties which one may venture to represent, as founded in an obligation which has some relation to the interest of those to come after him.
Denham v. Wilson.
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The case continues thus: “It seems that Sir Robert's plan was to render the estate of as little value as possible to the next heir; for when the defender was factor, whatever payments of these burdens was made out of the rents of the estate, he, instead of taking discharges, took assignations in his own name; so that, had Sir Robert lived any number of years longer, by this scheme, the succeeding heirs of entail would have been quite cut off, and the tailzier's intention totally defeated.”
But the matter did not rest here; Sir Robert Denham also fell upon a new, and what, with submission, appears a most unwarrantable device, to disappoint the heir of entail of a considerable part of the proceeds of the estate for many years after his decease, by letting leases for which he not only took considerable grassums,—(your Lordships will be pleased now to advert to the specialty of this case,)—but also took bonds or bills from the tenants for part of their rents, payable by partial payments annually, for the same endurance with the tacks; to which bonds and bills it seems the defender had got assignation, and intimated the same some time after Sir Robert's decease.
Denham v. Wilson.
Argued that these bonds, &c. not grassums.
When the process against the defender came before the Lord Bankton Ordinary, the pursuer insisted that the annual sums payable on these bonds and bills were part of the future rents of the estate of Westshiell, to which the pursuer, as heir of entail, had right, and therefore that his Lordship should, ante omnia, decern the defender to repay what he had uplifted since Sir Robert's death, by virtue of his assignation to these bonds and bills, and transfer
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In the West-shiells case, agreed that grassum might be taken.
Grassum de anno in annum upon credit by different payments in successive years.
On the other hand, it was insisted, that there was not the least pretence for this,—both sides agreed that grassum might be taken,—there was no point, therefore, brought before the Court as to that, but it must be admitted, that both sides agreed that grassum might be taken; and your Lordships will hear what the Judges said on that point; but Mr. Wilson said this in effect— This is a very strange claim you make, —for the result of it is neither more nor less than this—here are (I forget what number, but I think twenty-one) tenants, who upon the renewal of their leases, a dozen of them being in good circumstances, say, here is a grassum,—(this was an entail, where it was to be without a diminution of rental,)—here is a grassum, let us have our lease at the rent last paid;—the heir in possession takes the grassum from them.— With respect to other persons, not in quite so good circumstances as the former, they say we cannot pay down the grassum, but our grassum shall be so much, and we will pay you that, de anno in annum, till we have satisfied you the whole of it. The grassum, if it be legal, must be paid, it is said, at the commencement
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Opinions of Judges.
The Judges, as far as we have notes of their judgment, express themselves in the following terms:— My Lord Kames says, “A bond payable for sums at the terms the rent is paid, is presumed a part of the rent.” Here it must be remarked, that the sums were not payable at the time the rent was paid; that is a mistake. “But in this case, we should not go upon presumptions; a proof ought to be allowed, that these bonds were granted for rents—these bonds must be paid to Sir Archibald.”
Lord Coalston says, “There is no fraud in this case—a lawful act to take bonds for grassums, as the heir of entail is not restricted in setting tacks:” so that he considers all this as grassum. The bonds were taken for what he thought a grassum, just as much as any payments could in the consideration of the Judges be considered as having the character of grassum.
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Lord Minto says, “The question depends upon this fact, Whether this is a grassum or a rent.” Mr. Justice-Clerk says nothing.
Then follows Lord Alemore, and what he states, will be well worthy your Lordships attention:—
“A deception of this kind is not unlawful, but if not cleverly done, it cannot be sustained. Every bungling operator is not fit to execute such nice operations. This deception is not properly executed—this appears to be rent, not a grassum.”
Lord Nisbet says, “This a grassum, not a rent, it has not the qualities of rents—no hypothec.”
Lord Auchinleck says, “These bonds rent, not grassums.”
Lockhart, the defender's counsel, observed, that the heir of entail could have discharged these bonds; he could not discharge rents.
Upon the report of the Lord Ordinary, “The Lords sustain the defences of William Wilson, defender, against that part of the pursuer's libel which concerns the bonds and bills granted by the tenants of Westshiell to the deceased Sir Robert Denham, to which the said defender has right, partly by assignation, and partly as executor decerned and confirmed to the said Sir Robert Denham, and remit to the Lord Ordinary in the cause to proceed accordingly.”
So that, in the first instance, the parties and the Court proceed upon the notion of grassum not being subject to objection. There was a very good reason for that: the Judges, one and all, were taking grassums themselves: even my Lord Alemore, who thinks the deception was not unlawful, so that it was cleverly
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Final judgment that grassum taken at the beginning of the lease is lawful, but if taken in sums annually paid in discharge of grassum, it is rent.
Denham v. Wilson an authority requiring consideration.
If present payments are allowable as grassum, it is difficult to deduce from principle, how future payments in respect of grassum can be forbidden as rent.
This was brought before the Court again; and it was argued, that this was an attempt to evade; that it signified nothing, whether the bonds and bills could be sustained or not; that it must be considered as a rent; and the Judges were finally of opinion, and came to this decision in substance— That if you contract for grassum at the commencement, you may take it, and keep it; and that the lease is a good lease, provided it be made without a diminution of the rental; but that, on the other hand, if you deal with a tenant, who cannot immediately pay you a grassum, and you agree with that tenant to take annually from him sums, which are in discharge of the grassum; in fact, those annual sums are not to be considered as grassums, but to be considered as rent; in other words, that the grassum must be presently paid, and you cannot give time, in the manner in which it is here stated, to pay the grassum de anno in annum. I understand that this case did not come before the House of Lords; but it is a case which deserves a great deal of consideration. It seems to decide, that if a sum of money, before or at the time of granting the lease, is taken as grassum, the heir of tailzie has no right to complain; but, if you can see from the whole transaction that the sum taken was reserved as rent, although expressly in discharge or satisfaction of grassum, then it must be taken as rent. But why, because to be paid in
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Law of Scotland that heir of tailzie in possession cannot grant a tack reserving more rent to himself than to his successors;
but this is effected in directly by taking grassum, which infringes the principle of the rule.
There are several other questions, which we shall be obliged, I think, to put to ourselves, before we come to a determination of this case; and they may be put some of them in this way. It is said, that by the law of Scotland the heir of tailzie cannot make a lease, which is to reserve to himself, during the first five years of lease, 800 l. a year, and then to reserve, during the remainder of the lease, 500 l. a year; that the lease must not be more beneficial to the person holding at the commencement of the lease, than to those who are to take after him. Now, if that can be sustained as law, which is hardly denied, then this question presents itself: If a man cannot for the first five years of a nineteen years lease, take 1,000 1. or 1,500 l. a year for himself, reserving to himself, and those who come after him, 250 l. a year, for the remaining fourteen years of the lease—I may be wrong, but there does not appear to be a great deal of good sense in saying, he may do that per indirectum, which he cannot do per directum; that is to say, that instead of reserving the 1,000 l. a year, or 1,500 l. a year, for the first five years, he may reserve throughout the whole of the lease only 500 1. or 250 l. a year; and, instead of the 1,500 l. a year, or the additional rent for the first five years, he may take in præsenti from his lessee as much as that 1,500 1. a year, or the additional rent for the first five years, would amount to.
_________________ Footnote _________________
* Vide post, 465, the further discussion of this case.
Suppose the words “without diminution of the rental,” to mean that the last rent may be taken, what is to be done where the rent has varied? as where the rent has been lowered of necessity lease, and afterwards the land is to be let, when the former value is restored, what is the rent to be taken?
Elliott v. Curries. Doubt as to the principal of decision.
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Supposing the meaning of the words, “without diminution of rental,” to be, that you might let at the last rent; I conceive it would be the same in point of law, even if we had no authorities so to inform us, that if there were no such words to be found in the Buccleuch entail, as “the just avail at the time,” you might lower the rent, stating the reason. Then, suppose the rent having been lowered, there is a third lease to be granted; what is the rent at which that third lease is to be granted? Is it the rent which was the last rent which had been so lowered; or are you to refer back again to that which was the rent before it was so lowered? I find, there is one case *—(it was not a case where the last rent had been diminished on a subsequent lease, but) where the tenant who held, had ceased to hold, and the land was taken into the possession of the landlord himself, and he held it for a considerable time.—If the value of land, in the last year in which he so held it, had been asked, and it turned out that the value of the land to be let was 1,000 l. a year; and, on the other hand, that the actual rent reserved, before that landlord took it into his natural possession, was only 500 l. a year— I understand there is one case, in which it has been held, that if the landlord chooses to let it again, he is allowed to let it, not at such a rent as the value at the period of his natural possession would justify, but at the low rent which the land was let for at the time when his holding commenced. If you consider what may be the effect of such a rule, I think you will see no small reason to doubt the principle upon which it stands.
_________________ Footnote _________________
* Elliott v. Curries, Fac. Coll. Jan. 16, 1798.
L. C. 10 July 1819.
The rules of law, although originally in expedient, ought not to be varied.
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*In this case, the great and important question is, What is the effect of that thing, which in this case is called grassum, but which I apprehend must be called rent. With respect to the tacks made under this entail, sometimes inconsiderable sums were taken—one year's or two years rent, reserving sometimes the old rent, understanding the words, the old rent, to be rent recently paid before the lease is made. Upon this transaction, we are to decide what is the Scotch law applicable to the subject—we are to look at the practice—we are to look at the understanding of the Courts—we are to look at decision—and if an opinion should be ever so clearly entertained, that if the matter were res integra, it would be impossible to introduce the doctrine, that the heirs of tailzie may thus deal with estates; yet, if you find that doctrine at this day part of the law of Scotland; to any notion of the inexpedience of such law you ought to pay no attention, but to pronounce the law simply as you now find it to be.
practice, understanding, and extra-judicial decision, may be contrary to law.
On the other hand, as a lawyer, I do not shrink from stating, that there may be a great deal of practice in transactions of a particular nature; there may be a great deal of understanding, as to the legality or illegality of that practice; and there may be a great deal of decision, where the point decided is not the point in controversy; which understanding, it must be admitted, is important;
_________________ Footnote _________________ * At this part of his address to the House, the Lord Chancellor observed, that in the March and Neidpath case, there were one or two of the leases expressly granted for the lifetime of the receiver, and the lifetime of the grantor; and that the question upon them would be, how far grassum affects them?
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Course and principle of decision as to teinds.
Practice, understanding and dicta, upon investigation, ascertained not to be founded in law.
The present case affords a very strong and cogent illustration of the doctrine which I have been stating. You see in this case, that from a particular period, long before the year 1600, and down to the year 1732, it was the constant doctrine, and the uniform decision of the Courts of Scotland with respect to teinds, that they were to be valued upon the rent constantly paid, and without reference to grassums taken by the person to whom that rent was constantly paid. If any person had asked prior to the year 1732, what was the law with respect to teinds, he would have been answered, Who can doubt it? Here are the doctrines and the decisions of the Courts; and yet in the year 1732 the Court of Session itself decided, that all this practice, and all this understanding, and all these decisions, were not according to the law of Scotland. I do not say, that the same principle as between the land-owner and the person who is entitled to the teinds, is to be applied in considering the effect of a deed of tailzie, as between the heir of tailzie in possession and the person to succeed; but I am only attempting to illustrate the observation, that both in England and in Scotland it has frequently occurred, that there is a great deal of practice, a
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In the Wakefield case, former decisions founded on practice, &c. overruled.
Decision that under prohibition to “alien,” long leases are prohibited as alienations.
With respect to long leases, what has been the practice in Scotland—what has been the understanding with respect to them—what have been the decisions sustaining them? It is but a few years since the Wakefield case was brought into the Court of Session, when they decided, that their practice, that their understanding, that their decisions were wrong; and when this House decided upon the question, whether long leases were or were not prohibited as “alienation,” under that word “alien,” although it was represented that the whole law of the country would be overturned; yet the Court of Session in the first instance, and this House on appeal, were of opinion, that notwithstanding all that practice, all that understanding, all those dicta and decisions, the law of the land was, that the word “alien” in a tailzie which had prohibitory, irritant, and resolutive clauses, did prohibit long leases as alienations.
Rule of strict interpretation as applicabe to leases.
Alienation is a transference of property, which a lease is not, either in Scotch or English law.
A lease is a location of the land, a personal right under a contract.
A tack becomes a quasi real right under the Scots Act, 1449.
It is now stated in the papers upon the table, that “it is impossible not to admit, that there are grounds, both in principle and authority, for holding a long lease to be an alienation:” But they go on to state, “that the determination does not clash with the fundamental rules on which entails depend.” They further add, and in their words I had rather point out the distinction than in any of my own— “but the question with regard to the endurance of leases has no connection whatever with the question
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Nineteen years not too long as a tack.
Ninety years too long, because as injurious as alienation.
If it be the law of Scotland, as it has now been
finally determined to be
*, that under a prohibition to alienate, a long lease is prohibited, and if it be the law of Scotland, that a lease is not a transference of the property; yet, that in the construction put by the law of Scotland upon these deeds of tailzie, it applies strict construction to prohibit long leases; and yet it permits, upon grounds not of construction, but upon other grounds,
_________________ Footnote _________________ * Wakefield case,
ante.
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The reason why a long lease is prohibited, furnishes the principle on which a short lease is allowed, viz. ordinary and necessary administration.
If I am asked why short leases are not prohibited I cannot answer.— I have read these papers, till I can hardly tell what is in them,—and I have not been able to find expressly, and in terms, why a short lease is allowed. I am obliged, therefore, to see why a long lease is not allowed, and when I find why a long lease is not allowed, I find why a short, lease is allowed. The dicta and decisions with respect to forfeiture, with respect to deathbed leases, and so on, have this expression when they strike at long leases, “they cannot be considered as tacks, because they are not leases of necessary and ordinary administration;” some of them go so far as to say, because they have grassums. If this can be maintained that such is the principle upon which short leases are allowed, how can I be doing that
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Tailzies not odious under the stat. 1685.
Short leases alienations as much as long leases; but endured for the purposes of production and enjoyment.
With respect to those deeds of tailzie, it is impossible to overlook that which I find scattered in every author, that they are strictissimi juris, that they are considered odious. Yet it is difficult to deal with that proposition as applicable in the year 1685, or to affirm that the tailzies established by that statute are odious. I agree in this principle, that as, on the one hand, it would have been wrong in any Court of Justice to have added to that act of Parliament, so on the other hand, I think it would have been equally wrong in any Court of Justice to have taken away from the fair effect of it; and as to the effect of these tailzies, I do not, as a Judge, enter into the consideration of its placing the property extra commercium, if they happen to make an estate tail into what may be represented as a perpetuity.—I think it incumbent upon the Court to say, that what is complained of as an act which amounts to a breach of a tailzie, is a breach of the tailzie within that act of Parliament which sanctions the tailzie; and if the question is, whether a long lease is or is not an alienation within the meaning of the author expressed in the deed, it must also be considered whether it is an alienation within the intent and meaning of the act of 1685. Now that act has not one word about leases; it speaks of such provisos and conditions as you might think proper to insert in tailzies, but it has not one word about leases; and when they get the length of saying, that a long lease is an alienation, I cannot concur in the opinion
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Improper use of the word “grassum.”
When we get to this point, there are many ways of considering the question with respect to those leases which were made by the Duke of Queensberry, and which are said to have been made for grassums. In this case there has been a considerable abuse in the application of that word “grassum.” We have it said here, if you take a small grassum, you may take a large grassum, and it is very difficult to say Why, if you take a small grassum, you should not take a large one; yet, I do not think it absolutely follows, that a sum may not be so very large as to be too large even to be a large grassum, so that that term grassum cannot be properly applied; and when I see the heir of entail on an old rent of 3 s. a year, taking 300 1. by way of grassum, I should be glad to ask any lawyer in Scotland, of the century before the last, whether he had the least notion that the sum of 300 l. taken for a lease where the rental was only 3 s. was in the law of Scotland bonâfide a grassum?
This must be taken in two or three points of view. We must inquire first, what is the law—not what should be the law, if this were res integra. If the case is not touched by decision, we are next to ask what is the conclusion we are to come to, regard being had to the contents of these deeds of tailzie, and the
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Practice, dicta and decisions in favour of grassum.
Now, inverting the order a little as to these considerations: first of all, I call your attention again shortly to what has been the practice; and although I think, that upon the analysis of the several cases in this list of leases which are here printed, the practice will prove to be infinitely less than it appears upon first sight to be, if you take for granted that all the leases stated in this list of leases were let for grassums; yet it is impossible for me to deny (and I ought to admit every fact which bears upon the question that will enable your Lordships to try the opinion I may give) that, even upon an analysis of these cases, looking at each and every of them, there is enough to form a considerable body of practice. I might also admit as probable, that no research can have been so effectually made, as to bring before you the full amount of this practice. There are many heirs of tailzie who are not inclined and will not be advised to assist such inquiries. I might also admit, that you have cases, in which parties have come into Court, not questioning grassum at all, in which Judges have stated certain dicta with respect to grassum, which must also be taken as evidence of the law; and where you have decisions, except those very lately indeed, in favour of grassum. To this I must add, that it is stated in these papers, and not denied, that the former possessor of this estate let many leases for grassums. The practice is also extremely weighty. Sir Ilay Campbell, who states the result of his experience during a long professional life, in the course of which he has been in every respectable situation of
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On the other hand, there are ah infinite number of estates tail, in which, as it is represented, and without contradiction in these papers, leases have not been granted on grassums. But as to this tailzie of the Duke of Buccleuch having been made in 1705, it does appear that grassums, in the fair sense of the word grassum, on short leases, were taken by those who had the care of the Queensberry estates while the Dukes were minors, or while some Duke was minor, and that the persons who in succession had the care of the estate, were persons who, from their situation,—the judicial situations they held in the country,—were likely to know what they could and what they could not legally do in the administration of the estate of an heir of tailzie.
Practice in deeds evidence of the law.
There is another circumstance, which is evidence of practice, and of the law; namely, that in many cases, heirs of tailzie are prohibited from letting for grassums. I believe that those prohibitions are not of very ancient date; but, whatever may be their
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Decisions.
Lesile v. Orme.
With respect to the decisions upon the subject, I pass over the Church cases and the Crown cases, with the observations which I have made upon them, as bearing or not bearing upon this question. You will find them all stated at large, in the cases upon the table, and I cannot add to them; but there is nothing which bears as decision upon the point which I am now putting. I pass over the case of Leslie v. Orme. In that case, there was a grassum, but the case was not decided upon the effect of grassum; and it must be admitted, that the fact that it was not decided upon the effect of grassum is a fact of some weight. In that case, the lease for four nineteen years was sustained by this House. I can do no more than refer you to the observations which were made upon it, in the cases formerly in discussion in this House *.
Denham v. Wilson, 15 Jan. 1761.
With respect to the Westshiells case, so far from being an authority in favour of grassums, it is in principle an authority against them. In that case the pursuer did not complain of grassums, and the defender had no complaint about grassum to answer. It was an action which did not strike at a lease on which grassum had been paid. It was an action by
_________________ Footnote _________________ * As to this case, see the observations of Lord Redesdale,
post.
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Page: 466↓
No sound distinction between grassum paid and grassum payable on security.
Decision in the Westshiell's case disapproved.
In the first instance, they all decided, (and certainly there again it is authority to be regarded, both with respect to the practice and with respect to the law itself)—they all decided that it was not grassum, and deciding that it was not grassum, whether the lease was good or not good, being granted for grassum, was a question they had not in that case to determine—it was not before them. They found, that as the succeeding heir of entail had not sought to affect this lease on the head of grassum, the Judges had nothing to do with it; that if they could not bring the sums granted under these bonds and bills into the account as rent, they could do nothing. And they could do nothing;—why? because the parties had not upon that subject submitted any
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Examination of the decision in the Westshiell's case.
I say further, that when I see in these papers that grassum is treated as a thing impossible to be rent, because you cannot apply the remedies to grassum which by law and by acts of sederunt may be applied for the recovery of rent, I should be glad, if any body would tell me how then it was possible to apply those remedies to the payments secured under those bonds and bills. I am very far from saying that is a reason why it should not be considered as rent. Mr. Cranstoun has satisfied me, there may be such a thing as a fraud upon an entail. He has given instances in the memorial addressed to the Court of Session, where
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Principle of decision in the Westshiells case disapproved.
If that case had come before me as a Judge, I must have said I could make no distinction between
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D. P. July 1820, post.
This brings to my mind the case now pending on appeal to this House, the case of the Earl of Elgin v. Wellwood. If nothing is grassum but what is paid at the commencement of the lease, how are your Lordships to deal with the case of the Earl of Elgin v. Wellwood *: there the grassum was no less than 12,000 l. which is not to be paid at the commencement of the lease, it is to be paid at the death of the landlord or the tenant; and that is a case which includes the other question, namely, whether, where there is a power or faculty to set tacks for such time as the party thinks proper, making such reservations as are thereby prescribed, letting for the term of 999 years is to be considered as setting a tack, or whether that was not to be considered as an alienation, notwithstanding the permission contained in the lease to which I am now alluding?
Late decisions as to grassum and long leases M c Gill's case.
M c Gill's case not a grave authority.
With respect to grassum, as with respect to long leasing, much difficulty has been introduced by some
_________________ Footnote _________________ * Since decided in favour of the respondent, principally on the nature of the rent to be reserved and the permissive clause by which the heir of entail was permitted to make such tacks as he
should think fit, reserving ten bolls
of corn per acre by way of rent.
Page: 470↓
_________________ Footnote _________________
* Not reported.
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Blair's opinion as to the best contrivance for obtaining grassum.
Your Lordships will obtain a very correct idea, which will enable you to be more precise in your views of this subject of grassum, from a paper printed in a case which I have now in my hand, and which has the name of “Blair, Solicitor-General, as to the mode or making a lease subject to provisions for younger children,” undoubtedly with a view of avoiding what my Lord Alemore calls a bungling operation. He puts it thus: “What occurs to me as the most unexceptionable mode of conducting a transaction of this kind, if the execution of it shall be found practicable, is this, that the new lease should be granted for a real grassum to be drawn by the memorialist at the time, not from the occupier of the land, but from some third party, or any other person who shall agree, in consideration of getting the new lease in his name, to a sum of money equal, or nearly equal, to
Page: 472↓
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Blair's opinion founded upon assumption of the point in question.
Grassum is anticipated rent.
This is a mode in which a transaction of this sort is thought to be most advisably carried into execution; but when this mode is stated to have had the opinion of so learned a man as Mr. Blair, it must be admitted that it is “upon the supposition that the heir of entail has the power of setting farms at the old rent, and taking grassums; which is understood (as he says) to be a settled point.” But upon such a transaction, if you are to look at the real nature of it, what in the world is it but anticipation of rent? The lease is to be let at the value of the land; there is to be a previous agreement for a lease at the value of the land; an estimate is then to be set upon such a lease, that is, in other words, having agreed for a lease upon the full value of the land, another lease is made to somebody else at the old rent with a grassum, and the heir of entail in possession is to have the disposal of this grassum if he has got it; or if he did not take the grassum, somebody else is to have the benefit of the lease, with regard to which a calculation is to be made of the grassum. If that is not anticipation of rent, there surely is nothing prohibited.
I have called your attention to what has been considered to be grassum, and contrasted that with what passed in the case of Westshiells, where bonds and bills were taken, it not being thought necessary that the rent should be increased, and those bonds and bills were held to be rent, because they said they
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Great as the name of Mr. Blair is—and there never did exist in the judicial state a man entitled to a higher character,—it is impossible to look into these papers without seeing how unsettled his notions were as to the question whether long leases might be granted of entailed estates.
The question, it not concluded by authority to precedents, to be decided by principle.
The result of the whole in reference to dicta and decision, coupled with practice, will be, whether there is or is not so much of decision upon this point as to have become settled doctrine, hallowed and sanctified by time; so that if this case had been agitated some thirty or forty years years ago, we must have come to the same decision. No one can state more strongly than I should be disposed to represent to you, that the current of authorities in the Court below, standing on grounds that could not be shaken, must be considered to have been established on sound principles, in order that the law may be settled. But here the question at last would be, whether you have so much of decision upon this point as precludes you from examining what is the principle upon which you have acted in other cases, and particularly with respect to long leases, to which I have before alluded.
Diminution of rent, except in cases of necessity, prohibited under a tailzie by quasi implication, on the principle that it is not an act of necessary and ordinary administration.
It has never been suggested that rent could be diminished under a tailzie. I must be understood to be speaking, not of tailzies containing express prohibitions, or under circumstances where it is of necessity that the rent is diminished; but of tailzies where there is nothing about diminution of rent in the tailzies
Page: 475↓
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Opinion of Scotch Judges as to implied prohibition or incapacity of heir of tailzie to diminish the rent.
There is certain evidence of what is the law upon that subject. In the first place, something is to be found upon the subject in these papers. Lord Meadowbank in one case states, that diminishing the rent much, he would call even fraud. There is one of the Judges who says, he would not permit a diminution of the rent. Sir Ilay Campbell, according to the paper which I read to you, certainly supposes there could not be a diminution of rent; he conceives from the nature of a tailzie that a diminution of rent could not take place, unless there is a necessity for such diminution. Upon what grounds do these opinions rest, unless it be that such incapacity is imposed upon the heir, not for his own sake, but to preserve a just dealing with the tailzied estate.
I can never come to the decision of a Scotch cause, which involves an important question, without fear and trembling. It would be folly for any man in my situation, to suppose he is to deal with questions of Scotch law, as he would with questions of English law. I always recollect, that with respect to the judgments of the Courts of Scotland, it is our first duty to employ ourselves industriously in investigating those subjects which come before us,
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Cases of Greenock and Roxburghe. Implied prohibition against leasing the mansion and policies.
The Scots Act 1449, by its general terms extends to mansion-houses and policies.
With these observations, I apply myself again to what is the law of Scotland with respect to mansion-houses and policies. It is admitted since the Greenock case *, the Roxburghe case †, and others which might be mentioned, that the heir of tailzie cannot disappoint his successor of the mansion-house and policies; yet the author of the tailzie has not prohibited him by a single word, for this doctrine applies to those cases, where the author of the tailzie has not prohibited him from doing what he pleases with those mansion-houses, and those policies; but yet the law has said they are the residences of the heirs of tailzie in succession, and we will imply the prohibition. But leases, they say, of mansion-houses and policies are not protected by the act of 1449. Why are they not protected by the act of 1449? You find words by which lands and tenements are protected by the act of 1449, yet you find the cases mentioned in which as to lands and tenements that act is not applied to protect them.
_________________ Footnote _________________
* Catkcart v. Shaw, Jan. 31, 1755; D. P. March 19, 1756.
† Ker v. Roxburghe, D. P. 1813, MSS. cases, and 2 Dow. 149. See Ante, p. 408.
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Tenants in fee simple, those who in the largest sense are absolute fiars, have an unlimited discretion as to mansion-houses and policies. This was strongly impressed upon the minds of Scotch lawyers in the Roxburghe cases, by the great professional talent of Mr. Clerk. When the feus were made, it was thought necessary to except and reserve for the succeeding heirs of entail, the principal mansions and many acres of land adjoining. Upon what principle was this?—it was thought to be contrary to the intention of the author of the tailzie, who had not said one word about his mansion-house, to permit it to be given out of the possession of those who he hoped would there maintain hospitality among their Scotch neighbours, and continue to receive the respect so justly due to the Scotch nobility.
Power of selling wood to be cut after death of, &c.
As to the power of selling woods (to be cut down after the decease of the heir of tailzie), I never considered that as an implied prohibition; I said only that in such respect he was not the same monarch, having the same unlimited estate and power over his lands as an English tenant in fee simple, or the absolute fiar in Scotland. The tenant in pure fee can sell his wood to be cut, and this shows that the principle is not generally applied. There is no doubt, that the Scotch heir of tailzie may denude (to use the word) the estate of every stick upon it, timber, and saplings, and every thing else that should be permitted to grow; in short, he may do all the waste he can do in the course of his life. That is what our tenant in fee can do, but what our tenant in tail cannot do.
Difficult and uncertainty in application of law.
Case in law of England—illusory appointment.
As to the objections arising from the difficulty and
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Construction of the words diminution of rental.
lst Case. Lowering the rent of one farm and raising another in proportion.
I endeavoured, when I read in one of those charters, in the March and Neidpath entail the diminution of words, “without diminution of the rental,” to see how I could deal, upon any construction which I could put upon those words, with a great variety of questions which may possibly arise. What does this word diminution of the rental mean with respect to time? Does it mean, that you are to look at the date of the charter, and that you are to preserve always the rent as it is stated in the charter? If that is the case, would it be called a diminution of the rental, supposing the rental of this estate
_________________ Footnote _________________ * See
Butcher v. Butcher,
9 Ves. 399.
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2d Case. Where the author of the tailzie dies in possession of which have never been let at a rent.
There is another case we must look to, in order to know what this means. Suppose, that when the author makes his tailzie, he is in the natural possession of a part of the estate, that other part of the estate is in possession of tenants:—he dies:—the next heir of tailzie makes a lease, and he is to make a lease without diminution of the rental; what is
_________________ Footnote _________________ * Mr. Blair.
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3d Case. Land in possession of entailer let 50 years before at a low rent and since doubled in value.
“Without evident diminution,” &c. means of such fair rent as may be obtained.
Suppose again, that the land in the natural possession of the entailer had fifty years before been let at a rent, Could it be said, (something like it has been said lately, but I cannot assent to it,)—could the next heir of tailzie, being bound to let without diminution of the rental, say the author of the entail was in the natural possession of this part, which was worth 5,000 l. a-year during his possession; but the last time this was let, which was fifty years ago, it was let at 2,000 l. a-year; I will let farms A. B. C.
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Difficulty to ascertain fair rent imaginary.
Where tenant in possession takes the same rent for himself and those in remainder, there is presumptive evidence that it is the best rent which can be obtained.
We are told no person can deal with this decision; that You Put such a difficulty upon the heirs of tailzie, that they must go to what in this country we call auction, and what in that country they call roup; that it will not be safe for them to act at all. To that I answer, I feel no difficulty in the world upon that subject. And when we are told, as we are told over and over again in the papers before us, that he who is not to diminish rent, is not bound to increase it. I apply the principle which appears to me
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A lease for 19 years, reserving a large rent for the first part of the term, and a smaller rent for the remainder, is a contrivance to take grassum, which would not be endured by the law of Scotland. there is no instance of such a lease.
Suppose a man of the age of eighty, (and the Duke of Queensberry was about the age of eighty when he made some of these leases,) calculates his own life, and says, I may live for five years—Now, I will let for nineteen years; at 1,500
l. a-year for five years, and 500
l. a-year for the rest of the nineteen. It was positively asserted, but I really cannot give my assent to the proposition, that such a lease as that could not be set aside by the succeeding heir of tailzie. I will not say that it can be, but there has been no instance produced of such lease. What is the state of the law of Scotland if grassum can be so taken: such a contrivance would not be endured by the law of Scotland—What does it amount to? The heir in possession says, I will take a grassum of
_________________ Footnote _________________ * Presumptive.
Vide ante, p. 428.
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Construction of the words in the Queensberry entail.
Opinions of the Scotch Judges.
If this view of the case be right, on the words “evident diminution of the rental,” I think there is no difference with respect to the words contained in the prohibitory and irritant and resolutive clauses of the Buccleuch case, “without diminution of the rental at the least at the just avail for the time.”
Looking at the opinions which have been
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Meaning of the provision in favour of the heirs of tailzie in succession.
The question then is reduced to this: What is the meaning of the provision which is made in favour of the succeeding heirs of tailzie? I think the meaning of it is this; by way of direction to the heir in possession—“get what you can—recollect what is the rent—do not let it be diminished, unless it is necessary it should be diminished; take the just avail at the time in all cases, not in that case only when the just avail at the time is less than was the rent before actually paid.” The person making the entail could not have meant to say, “I have not the slightest wish or intention that my heir of tailzie should get the value of the estate; I mean to let him take less than the present rent, if he cannot get the present rent; but although I guard against his taking less than the just avail at the time, I do not mean that he should take the just avail at the time, when that is higher than the present rent.”
If grassum by the Scotch law is anticipated rent, the leases made under the entails in this case are void.
All law must stand on principle, unless principle and argument precluded by continued decision.
Grassum is anticipated rent.
If notwithstanding what has been the practice, and notwithstanding any thing that may be called decision, there is a principle upon which you are entitled to say that grassum is anticipated rent; if that is now the Scotch law, these leases cannot be maintained. God forbid you should say it is the Scotch law, if it is not so! I would not say it, if I were not convinced it is the Scotch law; but all law ought to stand upon principle, and unless decision has removed out of the way all argument and all principle; so as to make it impossible to apply them to the case before
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I do not advert now to the alternative leases. With reference to the question whether they are good or not, I am not sure whether it would not be my wish to remit so much to the Court of Session, if the alternative leases steer clear of the objection which applies to the others; but I do not find that any of those leases are clear of the valid objection on the ground of grassums, if it be a valid objection, not even the cases of Crook and Flemington Mill.
Entreating your Lordships to believe that I have given to this subject a degree of painful attention, which I hope I shall be relieved from ever giving to any other, if I am in an error, I cannot extricate myself by the operations of my own mind; and the view my mind takes of the subject, that view my conscience obliges me in my judgment to express. With these observations, I conclude this matter today, and on a future day will propose to your Lordships some findings which may be, in my opinion, agreeable to the principles which I have stated.
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L. C. 12th July.
With respect to the leases of Flemington and Crook, and likewise a farm called Edstoun, it is insisted there were no grassums; it is likewise insisted, that if there was any diminution of the rent in point of fact, it was a diminution rendered absolutely necessary by the circumstances under which the heir of tailzie was placed—he not having the power of letting at the same rent. These are cases also in which the summons has the alternative conclusion, that if these very long leases are not good, certain leases of certain durations there mentioned may be permitted; and the Court seems to intimate an opinion, that the alternative leases might be good, provided there was no fault on the part of the tenant. With respect to the leases depending upon that question, both on account of the manner in which the title on the part of the tenants has been created, which seems to me not to have been sufficiently investigated; and likewise on account of the extreme importance of the question, Whether leases with alternative durations can or cannot be sustained as tacks? on reconsidering which question, I have not been able from the papers laid on your table, or on the search I have been able to make into books, to find sufficient reason to offer to your Lordships a decided opinion upon the point. With respect to the Flemington and Crook case, I shall propose to your Lordships to remit these cases to the Court of Session, generally to review the interlocutors complained of, and to do therein what may be just.
As to the supposed matter of equitable consideration, which is proposed for the consideration of the
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Lease of Harestanes for 57 years void as alienation.
I will now state, in a few words, the view which have taken of the other cases, and the propositions which I shall have the honour of making with respect to them. With respect to the lease of Harestanes, in which case the Trustees of the late Duke of Queensberry, and Alexander Welsh, the tenant, were appellants, and the Earl of Wemyss respondent; that is a case which brings into question the validity of grassums, and is also to be determined upon other circumstances; and among others, the circumstance that the tack is for fifty-seven years. Conceiving that that tack of fifty-seven years is an
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With respect to the case of Symington, who is the tenant of the farm of Edstoun, it is a case which had an alternative ish, and it might have been necessary to reconsider that case, because it is case affected by that circumstance. But it may be disposed of upon other grounds *.
Tenant of tailzie in possession.
In the case of the appeal of the Duke of Buccleuch against the Executors of the deceased William Duke of Queensberry, I propose to reverse the interlocutor of the 7th March 1816, and to find, that the late Duke of Queensberry had not power, by the entail under which he held the land, to grant tacks for terms of years, partly for yearly rent and partly for a price or sum paid to the Duke himself; and that tacks granted by him, upon surrender of former tacks which had been granted partly for yearly rent and partly for prices or sums paid to the Duke himself, ought to be considered as partly granted for prices or sums paid to the Duke, and that such tacks ought not to be considered as let without diminution of the rental, or at the just avail, and are therefore to be considered, as between the parties claiming under the entail, as tacks which he had not power to grant by such entail; and with that finding, to remit the cause back to the Court of Session in Scotland, to do therein as shall be just and consistent with this finding.
_________________ Footnote _________________
* See the minutes of the judgment. Vide post, p. 533.
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In the case of the Duke of Buccleuch against the Executors of the late Duke of Queensberry, and Hyslop, the tenant of Halscar, I propose, to reverse the interlocutor complained of in the appeal, and to find that the late Duke of Queensberry had not power by the deed of entail to grant the tack in question, the same having been granted upon the surrender or renunciation of a former tack then unexpired, and which former tack had been granted by the Duke at the same rent, and also for a sum or price received by him; and that the said tack having been granted, partly in consideration of the rent reserved thereby, and partly in consideration of a price or sum before paid to the Duke himself, and of the renunciation of the said former tack, therefore to find that the tack in question ought to be considered, in this question with Hyslop the tenant, as let with an evident diminution of rental, and not for the just avail; and with this finding, that the cause be remitted back to the Court of Session in Scotland, to do therein as is just and consistent with this finding.
With respect to the Whiteside case, I propose to find, that William late Duke of Queensberry had not power, under the entail, to let tacks, partly for annualrent and partly for sums and prices paid to himself; and that tacks granted upon the resignation of former tacks, which were granted partly for rent reserved and partly for sums and prices paid to the Duke himself, are to be considered as tacks made partly for rent reserved and partly for sums and prices paid to the
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With respect to Edstoun, to adjudge precisely in the same terms as I have just proposed as to the Whiteside case.
The only other cases are those which relate to Crook and Flemington. I propose to your Lordships to remit to the Court of Session the interlocutors in both those cases to be reconsidered.
See the minutes, post.
The orders and judgments of the House in the several cases were according to the opinions and proposals of the Lord Chancellor *.
_________________ Footnote _________________
* The Lord Chancellor concluded by saying, that he had never been able to look at these cases without being satisfied, that in whatever way they were determined, it would be absolutely necessary for the stability and security of titles to property in Scotland, that some Act of Parliament should be passed.
The Earl of Lauderdale observed, that after this judgment, a declarator would lie against any heir of tailzie who took a grasum; and that being the case, this judgment would give rise to
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LORD REDESDALE *.
9th July, 1819.
statement of facts, pleadings and questions.
my lords,
THERE are two entails now under consideration, applying to different estates, and with different limitations: One of them applicable to the
March and
Neidpath estate, with respect to which the Earl of Wemyss is the person contesting, with the Trustees of the late Duke of Queensberry and the tenants, the validity of leases granted by the Duke; the other, applicable to what is called the
Queensberry estate, in which the question is between the Trustees of the late Duke of Queensberry and the Duke of Buccleuch, upon a proceeding somewhat of a different description from that in the former case, for the purpose of obtaining a declaration, that all the leases expressed in the proceedings to have been granted by the late Duke of Queensberry, of the Queensberry estate, have been granted according to the power vested in him by the entail of that estate. There is also this distinction betwixt the two cases. With
_________________ Footnote _________________ such a scene of litigation as absolutely to require an Act of Parliament to be brought in to declare whatis the law. The
Lord Chancellor replied, that the propositionwhich he intended to make, would bring before the House that consideration; and he hoped, whenever that matter should be brought before the House, the peers wouldexpress more fully their opinions upon that subject. * This speech was delivered before the conclusion of that of the Lord Chancellor, but it has been thought preferable to preserve the connexion of the Lord Chancellor's judicial opinion by postponing these observations of Lord Redesdale.
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Remit.
The form of the action which has been brought by the Trustees of the late Duke of Queensberry against the Duke of Buccleuch, to have this great number of leases declared to be good, was a subject of consideration of your Lordships when this case was before your Lordships upon a former occasion; and your Lordships directed the cause to be remitted * back to the Court of Session in Scotland, to review generally the interlocutor complained of in the appeal then depending; and special directions were given as to the points to be reconsidered upon such review.
Interlocutor consequent upon the remit.
Upon this remit the Court to whom it was made have pronounced an interlocutor repelling the defences, and finding, decerning, and declaring,
in
_________________ Footnote _________________ * Lord Redesdale here recited the words of the remit, which are given before, p. 387.
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Observations on the opinions expressed by the Lords of Session.
Upon those notes I feel myself compelled to state, that, as far as I can form any judgment, the Lords of Session have totally mistaken the object of the remit in one point—that object not being to obtain the opinions of the Lords of Session, whether, generally, an action of declarator respecting the validity of the leases could be entertained; but whether by the persons, and under the particular circumstances which are mentioned in the remit, such action could be entertained? Upon that subject the Lords of Session have given to your Lordships no satisfaction whatever. It appears to me strange, that these learned Lords should have so mistaken the terms of the remit; but, perhaps, it was much easier to mistake the terms of the remit, than to grapple with all the difficulties which the terms of the remit, not mistaken, might have imposed. We must, however, now deal with the decision such as it is. I cannot forbear
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Questions upon the leases.
Impolicy of long leases, and leases renewable for ever.
Expedience an improper ground of decision.
Entails in England destroyed by judicial contrivance.
An anomaly countenanced as the legislature and sanctioned by time.
With respect to the leases themselves.—In the Neidpath case, the first question which occurs, arises upon the length of the term which has been granted. It seems to be a very serious question, To what extent that can be carried? There is another case
* upon your Lordships table, in which the question is, Whether a lease of 999 years may be granted of an entailed estate. I leave your Lordships toconsider what may be the effect of leases for 999 years of an entailed estate. Your Lordships will recollect, that during that term of 999 years, the estate will nominally belong to one person, and really to another; that the consequence will be, that the power and influence of such property will be divided—divided, in a greater or less extent, according to the possible improvement of the property, or the difference in the value of money, from time to time; and at length, the lessee for 999 years may have an infinitely better property than the tenant who succeeds to the entailed estate, and the power and influence arising from the estate will be wholly in the lessee, and the tenant of the
_________________ Footnote _________________ * The Elgin case, since decided in favour of the lease, on the words of the permissive clause of the entail.
Vide ante, p. 412.
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Distinction between English and Scotch entails.
The learned Judges of the Court of Session in Scotland seem to have supposed that those who attend the decision of appeals in this House, are disposed to judge of entails in Scotland according to the law affecting estates-tail in England; and that they consider estates-tail in Scotland as similar to estates-tail in England. On the contrary, it seems to me impossible to assimilate the laws of the two countries on this subject. In contemplation of the law of England, as it now stands, a tenant in tail has a quasi perpetual inheritance; he has powers, which certainly do not belong to a tenant of a tailzied estate in Scotland—I mean a
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It is a very difficult task, unquestionably, for persons who are not familiar with the administration of the law of any country, to apply their minds so fully and effectually to the subject, as those who are familiar with it. No person can feel that more strongly than myself. Having been for twelve months only in the situation of Speaker of the other House of Parliament, and therefore absent from Courts of Justice, I certainly did not find myself, when I returned again to a judicial situation, so capable of applying my mind to the subject as I should have been, if there had been no interval between my following the profession at the Bar, and my holding the situation of Chancellor of Ireland. I have heard that one of the most able men who ever sat in the Court of Chancery in this country, (Lord Cowper,) having ceased for four years to be Chancellor, in consequence of a change in the Administration, when he afterwards came back to the office of Chancellor, often declared that he did not feel himself so ready in the discharge of his duty in that office as he had been before. Whenever,
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The principle of former decisions to be regarded.
Long leases held to be alienations.
Leases of proper duration allowed, for the necessary administration of the estate.
The power of the tenant of tailzie in possession ought to be bounded by this necessity.
In judging of any question of law, it has always appeared to me highly important to discover, in the first place, what are the principles upon which persons who have had to decide upon the same question of law have proceeded; because I donot apprehend that a Court of Judicature is to decide capriciously, or is to decide because it will have it so, or as has been said with respect to the Court of Chancery, facetiously, by a very learned person, Mr. Selden, that a judgment in the Court of Chancery was like taking measure of the Chancellor's foot, one Chancellor having a long foot, and another a short one. The object of every person in a judicial situation, and particularly of a person in the office of the noble Lord on the Woolsack, should be, and I conceive always has been, to establish certain principles,
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Lease of Harestanes: question as to duration.
Lease of Harestanes bad in length of time alone.
Question of grassum.
Grassum is rent paid in advance to the granter of the lease, instead of being paid annually to the owner of the estate for the time being.
The Courts of Scotland have decided that grassum is to be considered as rent in questions of teinds and superiorities, and in all cases except of tailzied estates; but there is no ground for the exception.
Decision in Westshiells case. Groundless distinction between premium paid and premium secured by bond.
Where there is no prohibition, the tenant of a tailzied estate may lower the rent.
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In judging, therefore, of the Neidpath case, the first question to be considered is the length of duration of the lease of Harestanes, which is a fifty-seven years lease, not qualified by any circumstances; not for instance, a building lease. Was it, or was it not necessary to the administration of the estate, that a fifty-seven years lease should be granted? What line is to drawn between fifty-seven years and ninety-seven years? A ninety-seven years lease your Lordships have determined to be not sustainable, on account of the length of time; a fifty-seven years lease is a lease that may, probably, endure much beyond the life of the granter. It may be made by a person at a very advanced period of life: his immediate successor, (his son perhaps) may also be at an advanced period of life; and a fifty-seven years lease in such case likely to endure during the whole time of the successor's holding. If it should so endure, what is the consequence? The administration of the estate during the time of the succeeding tenant in tail, is not in the hands of that tenant in tail; it has been preoccupied by the person who preceded him in the enjoyment of the estate. The consequence necessarily is, that the person who so succeeds under the tailzie, has not the same power of administration as the person who preceded him had; and, generally speaking, has no chance of having the same power, considering the ordinary term of human life. We are told, that threescore years and ten is the ordinary term of human life; and if threescore years and ten be the ordinary term, consider how large a portion of that ordinary term a lease of fifty-seven years will occupy; and what is the probable state of a succeeding heir of
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Principles established in Leslie v. Orme decide this case.
The entail in that case did not prohibit setting tacks for any duration of time.
It contained a general prohibition of alienation, and a power to grant leases without limitation of term, and for any rent under the existing rental.
Yet the Court of Session thought in that entail there was something prohibiting long leases.
Looking at the case which have been decided, it
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Construction of the words “true worth and rental.”
The first person who came into possession of the estate under this entail, was a person of the name of Peter Grant, who took the name of Leslie; and he having had a litigation with respect to his title, was involved in considerable expense; and a person of the name of Orme, who had been employed by him to direct that business, had considerable demands upon him for money on that account. Part of the property consisted of a house called Fetternear, which had been a mansion-house, but at that time was in great decay, and not capable of being inhabited. Mr. Orme obtained a lease, dated the 29th March 1769, of that part of the estate for the term of four nineteen years, at the rent which had been before reserved upon a former lease. The consideration for this lease was part of the debt due to Orme; and the remainder of that debt was to be satisfied by means of another instrument, enabling Orme to withhold a part of the rent reserved by the lease till the whole of that debt should be discharged. Orme also obtained other instruments after mentioned from Mr. Leslie Grant. At length, the property comprised in the entail came into the hands of the person who disputed the lease, and sought to reduce all the instruments obtained by Orme from Leslie Grant, as contrary to the powers which were vested in Leslie Grant by the deed of entail; and he likewise endeavoured to reduce them, upon the ground of frauds practised upon Leslie Grant by Orme. The question of fraud was a distinct question, and it was determined that it was not
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Decision of the Court of Session affirmed on appeal in D. P.
Leases in Leslie v. Orme held good by virtue of the power, though otherwise proliibited.
The mansion and the lands adjoining held not to be within the power, though general.
Lease of a mansion excepted because not necessary for the enjoyment of the property.
I conceive, therefore, that in this case of Leslie v. Orme, the Court of Session, and this House, affirming what was done by the Court of Session, have established by their decision, as far as that decision has any authority, that the lease in question, in the case of Leslie v. Orme, was to be sustained under the express power given by the deeds of entail; and that, therefore, it was to be in all respects in conformity with that power; that it was the express power Under that settlement which enabled Leslie Grant to grant a lease of that long endurance, and at the rent reserved, and to take the grassum which he did take. I cannot conceive how there could
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Case of Qucensberry estate.
Word “ dispone” the same in use and effect as the word “ alien.”
With respect to the case of the Queensberry estate,
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Alternative leases not a proper administration of the estate, and void becauseterm not certain.
The next consideration respects the alternative leases;—the leases whichare to endure for so many years, if such be the power, and so on, till reduced tonineteen years. It appears to me, that such a letting of an estate cannot be deemed a proper administration; for how is the person who succeeds to the estate tailto ascertain for what term the lease is to endure? By the terms of the lease, theendurance is to be, first, decided by the Court of Session, and, lastly, by this House. In the mean time, what is to become of the rent? How is the property to be managed? How is the rent to be paid? Upon a lease which is to bind the succeeding heir of entail, that succeeding heir of entail ought to know immediately to what extent he is bound;
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Covenants to renew.
There is another question which arises upon the covenants to renew, from time to time, by annually granting leases for nineteen years. These covenants to renew have no operation beyond this,—they obliged the person who entered into these covenants, to renew, at the rent agreed upon between the parties, from time to time, during his life, however long the duration of that life might be. Supposing a lease upon a grassum with a covenant of that description by a person of two or three and twenty, who
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Question of grassum; effect of prohibition to alienate.
Effect of grassum to give to granter of the lease a larger rent than to his successor.
Grassum, rental, and rent, the same thing
The question of grassum is in some respects a distinct question, though it operates both with respect to the alternative leases and the covenant to renew. The question with respect to grassum applying to the Neidpath estate, is a question not depending upon any particular words in the deed of tailzie, but simply upon the right which a tenant in tail has to make leases of the estate tailzied; for although there is a particular power contained in that entail, that power does not apply to any of the leases which have been granted; and consequently the question in the Neidpath case is, What is the effect of the grassum upon a lease granted by the tenant of an entailed estate, with respect to whom there is no particular prohibition of granting the lease in question, but where the lease in question can only be affected by the prohibition of alienation? What is the effect of grassum? As a lease is a disposition of the property for a certain period, the effect of taking a grassum is, to give to the person who grants the lease a rent for the estate different from the rent which the person who succeeds him in the estate will receive during the continuance of that lease. What is “ rental?” What is “ rent?” What is “ grassum?” Grassum is taking, beforehand, that which otherwise would be taken half yearly, or annually, according to the terms
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Words prohibiting alienation, affect a lease which does not reserve to the same benefit as to the granter of the lease.
The disposition which is contained in such a lease made by a tenant of tailzie, restrained only by words prohibiting alienation, is a disposition of property during the period for which that lease is granted, in which there is a reservation of annual rent, for the benefit of the person who succeeds him; but that reservation does not convey the same benefit as that which he stipulated for himself. If a lease were granted for nineteen years, or any other term, reserving, for ten years, or so long as the granter should live, 100 l. a year; for the remainder of the term, 10 l. a year, I have not heard it asserted that that would be a good lease against a succeeding heir of entail. If a lease is granted at 10 l. a year for the whole term, and a grassum is taken equivalent to 90 l. a year during the first ten years, what is the difference? This would be, what was called in the Westshiells case, a contrivance, which, it was said, if dexterously executed, was to be sustained, but if not dexterously executed, was not to be sustained. If therefore the words prohibiting alienation affect any lease granted by the person in possession of the tailzied estate, they must affect a lease which does not reserve to the person who may succeed, the same benefit which the person who granted the lease derived from it, according to the term of his enjoyment of the estate; because, whatever benefit was so derived from the lease by the person granting it, would be exactly the same thing as the benefit derived from reserving a large rent for the life of the
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Leasing power in the Queensberry estate.
Meaning of the word rent.
Rental.
Just avail for the time.
The fair construction of the words of the clause, taken altogether, is that the heir is to obtain the fair value at the time of leasing.
With respect to the Queensberry estate, the words of the entail as to the power of leasing are these: “That the said Lord Charles Douglas, nor the other heirs of tailzie above specified, shall not set tacks nor rentals of the said lands for any longer space than the setter's life, or for nineteen years, and “that without diminution of the rental, at the least, at the just avail for the time.” It has been said, that this gives a power to let leases at the old rent. Under these words, it is not contended that leases might be let under the old rent, or that there are no words prohibiting the letting under the old rent; it is admitted that the letting must be without diminution of the old rent. The first question to be asked upon that is, What is the meaning of the word “rent?” It is said that it means, the rent reserved upon the prior lease of the same lands. I do not know upon what ground that stands; for it might just as well be asserted, that it meant the rental at the time the deed of entail was executed; and this must be general; so that if at the time of the execution of that deed, and long after, the lands had been in the hands of the creator of the entail, and the several tenants of tailzie in possession, and the value had been increased, so as to be quadrupled, or increased in any greater proportion, you must resort to the old lease prior to the entail. The words are “without diminution of rental,—at the least, at the just avail for the time.” It is said that the meaning of the words is this, “without diminution of
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Clause requiring heir female to marry a Douglas, or at least a person who whould take the name, if applicable, shows, that by rental the author of the entail meant the best rent.
Taking grassum is in effect a diminution of the rental or former rent, if that was upon grassum.
The clause inserted by the entailer, that there might be fair dealing and equal benefit between the heir in possession and the succeeding heir.
All charges on the estate are assessed with a calculation of grassum as rent.
But it is said, that in this entail there is another clause, which interprets the meaning of this,—a direction that when any lady of the family should succeed to the estate, she should marry a person of the name of “Douglas,” or at least a person who would take the name of Douglas. But what is the meaning of these words? That he wished the lady to marry a person of the name of “Douglas?” That was, in his mind, the preferable measure; but that, if she should not marry a person of the name of Douglas, she should marry a person who should take that name. Does not that, if it operates at all, rather show the meaning in which the words respecting leases are used as I have interpreted them? That the entailer did not mean, by the words “the just avail at the time,” a worse thing than that
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Upon these grounds, therefore, I do conceive that the effect of taking grassums is, to make all leases which have been granted at the old rent upon
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In the act prohibiting the alienation of lands of the Crown, except under particular circumstances, and except by way of exchange, by which the last rental should not be diminished, if a question had been raised upon an exchange, what was the meaning of the word “rental,” it must, unquestionably, have been construed to mean, that the value of the lands given and received in exchange should be the same; that the value of the land which the King should exchange with another person, should be no greater than the value of the land which he should receive in exchange. That act was intended as a restriction upon the power of the Crown to alien lands; and therefore, if the King exchanged lands with another, the act required that the lands which he should receive in exchange should be of equal value; that is, that the exchange should be without diminution of the rental of the Crown—the word “rental” there clearly meaning real annual value. The words of the statute must clearly and unquestionably mean the real value, and not the rent actually reserved.
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Taking the whole of the circumstances of these cases together, (upon which I should not have addressed your Lordships so long, in all probability, had the noble and learned Lord been able to have proceeded to-day, as he would most probably have anticipated much that has fallen from me upon the subject,) I can only add, that it appears to me that a fifty-seven years lease cannot be good, under the entail of the Neidpath estate;—that under the en tail of the Queensberry estate, the word “dispone” is a word operating a restriction upon the granter of leases, as much as the word “alien;”—and that in respect to the leases in question in that case, they cannot be sustained under the power of leasing which is contained in the deed of entail, because they have been granted upon grassums, and at rents reserved on leases before granted on grassums, and therefore with diminution of the rental, and certainly not at the just avail at the time.
In The Preceding Cases.
v. Sir James Montgomery, &c.
In action of Declarator.
Die Lunæ, 12 Julii 1819.
It is ordered and adjudged, by the Lords Spiritual and Temporal in Parliament assembled, That the said interlocutor complained of in the said appeal, be, and the same is hereby reversed: And the Lords find, That William late Duke of Queensberry, had not power by the entail founded on by the parties in this cause, to grant tacks for terms of years, partly for yearly rent,
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(signed) Henry Cowper,
Dep. Cler. Parliamentor.
In the Reduction.
Die Lunæ, 12 Julii 1819.
It is ordered and adjudged by the Lords Spiritual and Temporal in Parliament assembled, That the said interlocutor complained of in the said appeal be, and the same is hereby reversed: And the Lords find, That the late Duke of Queensberry had not power, by the deed of entail founded upon by the parties in this cause, to grant the tack in question, in this cause, the same having been granted upon the surrender or renunciation of a former tack then unexpired, and which former tack had been granted by the Duke at the same rent, and also for a sum or price received by him; and the said tack in question, therefore, having been granted partly in consideration of the rent reserved thereby, and partly in consideration of a price or sum as before paid to the said Duke himself, and of the renunciation of the said former tack: And find, therefore, That this tack of the 30th of December 1803, ought to be considered in this question with Hyslop as let with diminution of rental, and not for the just avail: And it is farther ordered, that with this finding, the cause be remitted back to the Court of Session in Scotland, to do therein as is just and consistent with this finding.
(signed) Henry Cowper,
Dep. Cler. Parliamentor.
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Sir J. Montgomery et al. v. Earl of Wemyss.
Lease of Harestanes.
Case of The Queensberry Leases
Die Lunæ, 12 Julii 1819.
It is ordered and adjudged, by the Lords Spiritual and Temporal in Parliament assembled, That the said petition and appeal be, and is hereby dismissed this House, and that the said interlocutors therein complained of be, and the same are hereby affirmed.
(signed) Henry Cowper,
Dep. Cler. Parliamentor.
Sir J. Montgomery et al. v. Earl of Wemyss.
Whiteside—Liferent Leases.
Die Lunæ, 12 Julii 1819.
The Lords Spiritual and Temporal in Parliament assembled, find, That the said William late Duke of Queensberry had not power, by the entail founded upon by the parties in this cause, to grant tacks, partly for yearly rent and partly for prices or sums of money paid to himself, and that tacks granted by him upon the surrender of former tacks which had been granted partly for yearly rent, and partly for prices or sums of money paid to himself, as between the persons claiming under the entail, ought to be considered as set with evident diminution of the rental: And it is ordered, That with this finding, the cause be remitted back to the Court of Session in Scotland, to do therein as may be just and consistent herewith.
(signed) Henry Cowper,
Dep. Cler. Parliamentor.
Sir J. Montgomery et al. v. Earl of Wemyss.
Edstoun.
Die Lunæ, 12 Julii 1819.
The Lords Spiritual and Temporal in Parliament assembled, find, That the said Duke of Queensberry had not power, under the entail founded upon between the parties in this cause, to let tacks partly for rents reserved and partly for sums and prices paid to himself, and that
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(signed) Henry Cowper,
Dep. Cler. Parliamentor.
Earl of Wemyss v. Hutchison et al. et e con.
Crook.
Die Lunæ, 12 Julii 1819.
It is ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the said causes be remitted back to the Court of Session in Scotland, generally to review the interlocutors therein complained of.
(signed) Henry Cowper,
Dep. Cler. Parliamentor.
Earl of Wemyss v. Murray et al. et e con.
Flemington Mill.
Die Lunæ, 12 Julii 1819.
It is ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the said causes be remitted back to the Court of Session in Scotland, generally to review the interlocutors therein complained of.
(signed) Henry Cowper,
Dep. Cler. Parliamentor.