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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> James Carstairs Bruce - Solicitor-General (Sugden - John Campbell v. Thomas Bruce - Brougha - Lushington [1830] UKHL 4_WS_240 (16 July 1830)
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Cite as: [1830] UKHL 4_WS_240
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SCOTTISH_HoL_JURY_COURT
Page: 240↓
(1830) 4 W&S 240
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1830.
2 d Division.
No. 33.
v.
Subject_Entail. —
Held, (reversing the judgment of the Court of Session), that an entail containing prohibitory and irritant clauses, but no resolutive clause against selling, does not create an obligation on the heir selling to reinvest the price in other lands.
This case involved, besides another point, the same as that which occurred in the preceding one.
On the 16th of February 1683, Sir William Bruce of Kinross executed an entail of the lands and barony of Kinross in favour of himself and a series of substitutes. In virtue of this entail, which was duly recorded, James Bruce Carstairs (the father of the appellant) succeeded; and the estate being greatly burdened with debts, he obtained an Act of Parliament for selling it. By this Act it was inter alia enacted, “That in case a balance shall remain of the price of the said estate and barony, or of such part or portion thereof as shall be sold under the authority of this Act, after defraying the expenses of passing this Act, and of all reasonable expenses which may be incurred in carrying this Act into execution, and after payment of all debts, which shall be ascertained in manner hereupon directed, the Judges of the Court of Session are hereby empowered and required to direct and order that the said balance shall be laid out and employed in the purchase of other lands, which shall be limited and settled to the same persons and uses, and under the like prohibitory, irritant, and resolutive clauses, as the said estate and barony of Kinross now stands limited and settled by the foresaid deed of entail
Page: 241↓
The estate was accordingly sold; and there being a reversion of about L.25,000, the estate of Tillycoultry was purchased at the price of L.24,000, and thereupon a disposition agreeably to the original entail was executed in 1783. By this deed it was provided, “That it shall be nowise leisom or lawful to the said James Bruce, or any of the heirs of tailzie and provision above written, succeeding in the right of the foresaid lands and estate by virtue of the foresaid tailzie and substitution, and of these presents, or any of them, to sell, anailzie, dispone, dilapidate, or put away the foresaid lands and estate, nor any part nor portion thereof, nor to break, innovate, or infringe this present tailzie, nor contract nor ontake debt, nor do no other fact nor deed, civil or criminal, whereby the said lands and estate may be anyways apprised, adjudged, evicted, or forfeited from them, or anyways affected in prejudice and defraud of the subsequent heirs of tailzie above-mentioned successive, according to the order and substitution above-written. Neither shall it be leisom nor lawful to the said James Bruce, or the other heirs of tailzie and provision foresaid, to suffer and permit the said lands and estate, or any part thereof, to be evicted, adjudged, apprised, or any otherwise evicted, for any debts or deeds contracted or done by them before their succession, or by any of their predecessors whom they shall anyways represent, or wherein they shall be liable as representing them: All which deeds are not only hereby declared void and null ipso facto, by way of exception or reply, without declarator, or so far as the same may burden and affect the foresaid estate; but also it is hereby provided and declared, that the said James Bruce, and the other heirs of tailzie who shall contravene and incur the said clauses irritant, or any of them, either by not assuming the name and arms of Bruce of Kinross, or by the saids heirs-female, they being unmarried, and not marrying a gentleman of the said name, or shall assume, bear, and carry the said name and arms; or, being married, they and their heirs of the said marriage not bearing and carrying the said name and arms as aforesaid, or by their saids heirs their not accepting the benefit of this present tailzie within year and day after the decease of the immediate preceding heir to whom they may succeed in manner respective aforesaid; or who shall break or innovate the said tailzie, or contract debts, or commit any other fact or deed whereby the said lands and estate may be anyways evicted or affected in manner foresaid; or who shall suffer
Page: 242↓
The deed then gave authority to provide for wives and children, and, after a variety of clauses, contained the following:—
“With which reservations, burdens, conditions, provisions, restrictions, limitations, and qualifications, respectively particularly above written, the said present tailzie, assignation, and infeftment to follow thereon, is granted and accepted, and no otherwise; and all which conditions, provisions, restrictions, limitations, clauses irritant and resolutive before written, with the exceptions, reservations, and declarations before specified, are to be inserted in the instruments of resignation, charters and sasines to follow here-upon, and in all the subsequent procuratories and instruments of resignation, charters, special retoured services, instruments of sasine, and other transmissions and investitures of the said lands and estate.”
This entail was duly recorded; and the appellant, in virtue of it, on the death of Mr James Bruce Carstairs in 1784, succeeded to the estate. Having become embarrassed, he granted, in 1796, a trust-deed for behoof of his creditors, under which part of it was sold to John Tait of Harvieston, Esq. To ascertain his power to make such a sale, the appellant raised an action of declarator against the other heirs of entail, (including the respondent), to have it found that he “had undoubted right to make the said sale, and
Page: 243↓
At the same time a suspension was presented by the purchaser, and passed. At first the Court sustained the defences for the heirs of entail; but thereafter, 15th January 1799, pronounced this judgment:—
“In respect the resolutive clause in the entail does not apply to a sale of the estate, alter the interlocutor reclaimed against, find the disposition libelled on valid and effectual to the purchaser, and find the letters orderly proceeded, and declare accordingly.”
(See Morr. 15,539.) On appeal, this interlocutor was affirmed by the House of Lords.
In consequence of these judgments, the estate was sold in 1805 at the price of L.35,000, and, after paying his debts, there being a reversion, the appellant purchased with it the estate of Balchrystie. He enjoyed the undisturbed possession of it in fee-simple till 1821, when, by the death of a brother, he succeeded (as was alleged) to a considerable fortune. Soon thereafter the respondent (one of the heirs-substitutes) brought an action of declarator before the Court of Session, concluding to have it found, “that the said James Bruce, defender, is, by the foresaid deeds of entail, accountable to the substitutes in the foresaid entail in their order, for the price obtained for the said lands and estate (Tillycoultry); and that he is bound and obliged, and should be decerned and ordained, by decree of Our Lords of Council and Session, to lay out the same in the purchase of other lands, at the sight of such substitute heirs, and to take the rights thereof to the same series of heirs, and under the like provisions, restrictions, and clauses irritant and resolutive, or to lend out the same upon landed security, bearing interest, and destined to the same series of heirs, under the like provisions, restrictions, and clauses irritant and resolutive; and so often as the same is uplifted, to re-lend the same again in like manner, for the benefit of the defender himself, and of the several substitutes called by the said entail, according to their several rights and interests, all as provided and directed by the foresaid Act of Parliament; and that until such purchase or investment in landed property is made, the defender is bound, and should be decerned and ordained, by decreet foresaid, to deposit in the Bank of Scotland the sum of L.30,000 sterling, or such greater sum as has been received by him as the price of the said lands and others, upon a promissory-note taken payable to himself and
Page: 244↓
Thereafter, the respondent gave in a minute, stating, That, after the purchase of Balchrystie, he had been informed by the appellant that he was to execute an entail of that estate, and that “the pursuer, (respondent), and his mother, the late Mrs Bruce of Arnot, were satisfied with this, and supposed this entail had been executed. That, before commencing the present action, the pursuer, although quite aware that the price paid for Balchrystie was only about one-third of the price received by the defender for Tillycoultry, did offer to hold it as sufficient implement of the obligation to reinvest, if the estate of Balchrystie was secured to the same series of heirs as the estate of Kinross had been, by a sufficient and valid entail, containing full power to the defender and his successors to make such provisions for their heirs, and their children, as the original entail allowed. That the pursuer is still willing to adhere to this arrangement, and therefore now offers to withdraw the present action, on condition that a valid and effectual entail of the lands and estate of Balchrystie is executed and completed, so as to secure that estate to the same series of heirs as the estates of Kinross and Tillycoultry were destined. But if this offer is not accepted, then the pursuer will insist, in terms of the libel, that the full price received for the estate of Tillycoultry shall be invested in land or heritable security, in the manner prescribed by the Act of Parliament authorizing the sale of the said estate of Kinross.” This proposal was rejected, and the appellant resisted the conclusions of the action, 1st, upon the same general grounds as those maintained in the preceding case; and, 2d, on the plea of res judicata, which he rested on the judgment previously pronounced, finding that he had power to sell.
The Lord Ordinary reported the case, and thereafter judgment having been pronounced in that of Ascog, (which was held to regulate the decision in reference to the first of the defences), and the other being considered irrelevant, the Court “found, that the defender is accountable for the price obtained for the estate of Tillycoultry, and remitted to the Lord Ordinary to proceed accordingly.” *
_________________ Footnote _________________
* 5. Shaw and Dunlop, 822.
Page: 245↓
Mr Carstairs Bruce appealed.
The Solicitor-General (for the appellant) having commenced his opening,—
Solicitor-General.—It is not my intention to urge a single word, upon the general question; but I have with me a learned Counsel, Mr Campbell, whose assistance I had not in the other case; and Mr Brougham, who led in that case, has with him my learned friend Dr Lushington, who was not in the other case. I apprehend, therefore, that each of these Counsel may feel it their duty to address to your Lordships such arguments as may suggest themselves to them upon the general question.
Campbell.—My Lords, I may not be able to address any thing to your Lordships worthy of consideration, but I certainly shall feel it my duty, for the interests not only of my client but of my country, to address to your Lordships those arguments which present themselves to my mind, to shew that the decision of the Court of Session is erroneous.
The Solicitor-General proceeded in his argument, and stated, that it was not his intention to repeat his former arguments.
Brougham.—There is only this great inconvenience, my Lord, I might say hardship upon me, resulting from that, that my learned friend may reserve his argument for the reply, and after that, of course, I shall have no opportunity of observing upon it.
Brougham.—There can be no objection to that certainly.
Page: 246↓
Solicitor-General.—I have no new light upon the subject: if my friends present a new view, I shall of course address myself to that.
The Solicitor-General proceeded.
Solicitor-General.—I have every thing to expect from the learning and ability on both sides; both of us have very able assistants on this occasion. I have a right to expect there will be something new elicited. I shall therefore only address your Lordships upon the peculiarities of this case.
(In reference to the case of Young v. Young),—
Brougham.—We never expected any attempt would be made to impugn that case: We shall produce the most satisfactory evidence, by producing the decreet itself, not only the pleadings, but the summons, and the whole of the record, in the very words which were used; all is preserved, and can be produced to the satisfaction of your Lordships.
Solicitor-General.—That does not appear, my Lord: We have a letter, which has been put into my hands this morning, which states, that it is in the handwriting of a clerk, and not of Lord Monboddo: it does not set out whether the bulk of these notes were or were not in the handwriting of a clerk or of Lord Monboddo. If my learned friend produces a decree, that will of course be entitled to consideration.
Brougham.—Being in the handwriting of a clerk is perfectly immaterial; all the Scotch lawyers dictate to their clerks.
Campbell (for the appellant)—In reference to the heir being bound by his service to the conditions of the deed of entail—
Page: 247↓
Campbell.—I apprehend not, my Lord; and that is the answer given by one of your Lordships.
(In reference to the case of Young v. Young),—
Campbell read the letter which had been received.
Campbell.—No, my Lord, there are no papers to be found in that cause. It appears that his family possess his Lordship's papers in most of the cases he reported, but that they have not these.
Brougham.—Your Lordship knows that in that country the learned Judges principally dictate; they write very little.
Campbell.—It may have been what we call in this country an undefended cause. (He then proceeded in his argument.)
Campbell.—As far as it goes.
Campbell.—I say that the summons is bad.
Campbell.—As far as it goes, it is in the form of the summons.
Campbell.—I say the summons is bad, and that the interlocutor is bad. The summons is bad, because it must distinguish
Page: 248↓
Campbell.—Yes, totidem verbis. But I say that the summons is bad in not distinguishing that; and that the interlocutor is bad in not distinguishing that; and that the interlocutor ought not to have stopped there, but that, when the case was brought to the Inner-House by the Lord Ordinary, they ought to have gone on, and to have delivered the decree as extensive as the summons.
Campbell.—I say that they ought to have stated in what shape they held Mr Bruce to be liable. It must be a matter of vast importance, whether it was to be laid out in land or in money, or in what way.
Brougham (for the respondent) remarked on the argument of Mr Campbell, as having contended that there was no case in which there was not a right to interfere to prevent the mischief.
Brougham then remarked on the case of De Boss v. Beresford, where the doctrine was laid down by the Chief-Justice, to the surprise of Westminster Hall, that the plaintiff might have gone into the Court of Chancery, and obtained an injunction to restrain the publication; a case reported by Mr Campbell.
Lushington (for the respondent) cited Pothier on Obligations.
Page: 249↓
Lushington proceeded, and cited the proposition laid down in the Stormont case with respect to the personal obligation created by the irritant and resolutive clauses.
Lushington.—No, my Lord, it is the statement of the party in his plea, which I consider most material, as showing the precise statement on which the question arose, and the way in which they thought fit to put it.
Lushington having remarked on the position laid down in the case of Gordon v. Cumming,—
Solicitor-General.—Your Lordship will find, by referring to the opinions of Lord Alloway and Lord Eldin, that it is clear that that point was never argued in that case.
Lushington.—“Although in questions with creditors and purchasers, prohibitions or irritancies in entails do with great justice and reason meet with the strictest interpretation; yet in questions among heirs of entail themselves, the maxim of the common law must take place,—uti quisque legassit,” &c.
Lushington.—It must have been a matter of deliberation and consideration with the Judges,—because otherwise they could not have given a decree which should have disposed of the whole question at stake,—whether he was at liberty to sell and to dispose of the price at his pleasure? They say, you may sell, but you cannot dispose of the price at your pleasure, because you would be subject to an action for reparation in damages.
Page: 250↓
Lushington having referred to a note of the case of Young v. Young,—
Lushington.—It has been sent for, but has not yet arrived.—Having proceeded to remark on the Westshiells case, and stated that the appellants in the present case rested their hope on being able to persuade the noble Earl (Eldon) that he had in the Westshiells case pledged himself that the decision of the Court of Session was decidedly wrong when he moved the House to remit it for further consideration,—
Lushington then proceeded to remark on the authority of the text writers, and stated, that it having been supposed that entails were comparatively of modern date in Scotland, he should produce a deed of entail, with a prohibitory clause, in the year 1489, which he found in Dalrymple on Feudal Property, page 162.
Lushington.—No, my Lord; I shall shew when they commenced.
Having remarked on the Stormont case,—
Lushington.—No, my Lords, there were no irritant clauses.
Lushington.—Certainly; but the Stormont case is important in these respects, that there were no irritant clauses, and there was no inhibition.
Lushington.—Yes it was; that is mentioned in all the papers.
Having read an extract from Lord Bankton as to Heir-looms,—
Page: 251↓
Lushington.—That is precisely this case.
Lushington.—The action for reparation here arises ex contractu, out of the obligation on the donee to obey the condition imposed upon him by the donor.—He then proceeded with his argument.
Lushington.—Most undoubtedly not, my Lord; that is English law—but the Scotch law unquestionably proceeds on a totally different principle; and to ascertain what is the Scotch law, we must look to the feudal system and the civil law. The Scotch law, as I have shewn, imposed a personal obligation on the party to perform every condition on which the donation is made to him, unless the performing that condition is contrary to law, which is the only circumstance which can discharge him from performing it. Having remarked on the prohibitory clause,—
Lushington proceeded, and argued on the effect of inhibition.
Lushington.—Quacunque via data it is perfectly useless. If the entail be good, the sale is bad; if the entail is bad, the inhibition is waste paper:—He then stated that he was about to address himself to the question of time, it being contended that the parties were precluded.
Lushington.—He is subject to an action of damages. We do not claim damages in this case.
Page: 252↓
Lushington.—No, my Lord.
Lushington.—I should say, there may be cases in which an action for damages would lie, in respect not of the sale of the estate simply, but the abstracting the price. So long as the money is made secure, there is no action for damages, but only when the money is made away with.
Lushington.—I apprehend that would depend on the equitable discretion of the Court of Session; that they would see that there was a fulfilment of the obligation on the party, and that justice was done to the substitutes in the entail.
Lushington.—Just so; there would then be no injury to the substitute in the entail.
Lushington.—I apprehend the Court of Session would decide that in the same manner as they would decide now. The price of this estate was so and so; they would direct a proper estate to be purchased with the price.
Lushington.—I apprehend that the custom is, in the Court of Session, to refer it to certain valuators, and on the report made by them, to decide whether it is a fulfilment of that which is required.
Lushington.—I conceive so, my Lord. I understand it is done in sales for the redemption of the land-tax, where the property is to be laid out again; that the Court of Session appoint valuators to see that the money is laid out agreeably to the entail.
Page: 253↓
Lushington.—The Court order it to be paid into the bank.
Lushington.—Yes; and they take a receipt in the name of their own officer.
Lushington.—It is done exactly in the same way.
Lushington.—No, I think not; the Act states that the purchase may be made under certain circumstances.
The Solicitor-General commenced his reply, and proceeded to remark on the observations imputed to Lord Eldon in the case of Westshiells.
The Solicitor-General proceeded, and remarked on the argument of Mr Brougham as to the adopting the condition.
Solicitor-General.—Yes, as every man does adopt a condition who acts upon it. Having remarked on the argument as to a vexatious course of selling,—
Solicitor-General.—No: I should like to see a declarator framed to prevent a vexatious sale.
Solicitor-General.—Yes: Lord Balgray hints at the same thing.
Page: 254↓
Solicitor-General.—A man says, I will sell an estate; he has the power of selling; you cannot prohibit it. Can he be prevented, if he says he is going to do it to vex me? *
Earl of Eldon.—In this case of Bruce v. Bruce, I am not aware that there is any such distinction between it and that of Stewart v. Fullarton, as should lead me to give your Lordships any trouble upon this one. I think the judgment of the Court of Session ought to be reversed.
The House of Lords accordingly ordered and adjudged, that the interlocutors complained of be reversed. †
Solicitors: Moncreiff, Webster, and Thomson— Richardson and Connell,—Solicitors.
_________________ Footnote _________________
* The case was then adjourned, and judgment pronounced at the same time as in the preceding case.
† For authorities, see the preceding case.