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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Executors of William, Duke of Queensberry . Brougha - Murray v. Charles, Marquis of Queensberry . Lushingto - Sandford [1830] UKHL 4_WS_254 (16 July 1830)
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SCOTTISH_HoL_JURY_COURT
Page: 254↓
(1830) 4 W&S 254
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1830.
1 st Division.
No. 34.
v.
‡
Subject_Entail — Reparation. —
Held, (reversing the judgment of the Court of Session), that an action of damages by an heir of entail in possession was not competent against the executors of the preceding heir, who possessed under an unrecorded entail containing prohibitive, irritant, and resolutive clauses; and who was alleged to have violated the prohibition as to the letting of the lands; and the penalty of the entail was the heir's forfeiture, and nullity of the act, and not pecuniary damages.
After the judgment of the House of Lords, reported ante, vol. ii. p. 265. (which see), the First Division of the Court of Session, in obedience to the remit, proposed the following Case and Questions to the other Judges.
“In this case, the House of Lords, of this date, (May 22. 1826), pronounced the following judgment:—
“Ordered, by the Lords Spiritual and Temporal in Parliament assembled, that the said cause be remitted back to the First Division of the Court of Session in Scotland, to review the interlocutor complained of;
_________________ Footnote _________________
‡This case was decided on the 22d, but being connected with the two preceding cases it is reported here.
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“ Circumstances of the Case.—Upon the 9th September 1769, Charles Duke of Queensberry executed an entail of the lands and barony of Tinwald in favour of himself and the heirs-male of his body, whom failing, to “our well-beloved cousin William Earl of March, and others.”
“By this entail it is declared, that it shall not be in the power of the heirs to alter the succession; and, under various other restrictions and limitations as to selling, alienating, &c. “and with and under this restriction, that it shall not be lawful to any of the said heirs to set tacks or rentals of the said lands, or any part thereof, for any longer space than nineteen years, and without any diminution of the rental, or for the setter's lifetime in case of any diminution of the rental; and that it shall not be lawful to any of the said heirs to take grassums for any tack or rental to be set by them, but to set the said lands and estate at such reasonable rents as can be got therefor, so that the succeeding heirs may not be hurt or prejudged by the heir in possession setting the lands at an under-value, or taking, by way of grassum, what falls annually to be paid out of the produce of the lands.” The irritant and resolutive clauses of the entail are expressed in the most complete and efficacious form:—
“Likewise it is hereby provided and declared, that in case any of the heirs
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hereby called to the succession of our said lands and estate shall incur any of the irritancies contained in this present tailzie, the heir next called to the succession shall be obliged to prosecute and follow forth a declarator of irritancy and contravention, and to procure him or herself infeft and seized in our said lands and estate, within the space of two years after the former heir has contravened the conditions or restrictions before or after written, or any of them. And in case the said next heir shall neglect to pursue the declarator of irritancy, and obtain himself infeft as aforesaid, the said heir so contravening, by neglecting to pursue such declarator, shall, for him or herself only, forfeit, amit, and lose their right to our said lands and estate, and the same shall fall to and devolve upon the heir next called to the said succession, who shall prosecute the foresaid declarator of irritancy; but all the heirs aforesaid succeeding upon any contravention, and heirs succeeding to them, shall be subject and liable to the same conditions, restrictions, and irritancies, throughout the whole course of succession for ever.”
The deed contains a commission in favour of any one or other of the heirs of entail for recording it in terms of the Act 1685:—
“And we hereby grant full power, warrant, and commission to as our procurators, or to any one or other of the heirs of tailzie before specified, to cause present this our disposition of tailzie before the Lords of Council and Session judicially, and procure the same recorded in the Register of Tailzies, and to expede charters and infeftments thereon agreeably thereto, in terms of the Act of Parliament anent tailzies; and that either in our lifetime or after our decease.”
“Charles Duke of Queensberry, the maker of the entail, died in 1778. William Duke of Queensberry (formerly Earl of March) made up titles in terms of the entail. He never recorded the entail in the Register of Tailzies. Upon his death in 1810 he was succeeded by the present Marquis of Queensberry. The Marquis recorded the entail in 1818. In 1791 William Duke of Queensberry granted a lease of Tinwald Mains to the late Provost Staig of Dumfries, for nineteen years, at a rent of L. 140 sterling. No grassum was taken, and there was no apparent diminution of the rental. In 1796 and 1799 the Duke renewed the lease at these respective periods, for the same period of nineteen years, at the former rent of L.140. The lease expired in 1818. This lease, as well as the other leases granted of the farms of the estate of Tinwald, were not challenged during the life of the late William Duke of Queensberry: The Marquis soon after his death brought
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“Upon advising these papers, the Court, of this date, (December 15. 1825), pronounced this interlocutor:—
“The Lords find the present action competent, repel the additional defences, and remit to the Lord Ordinary to proceed accordingly.”
Leave was granted to the defenders to appeal against this interlocutor; and, on discussing the same, the judgment was pronounced on 22d May 1826, already narrated. The judgment having thereafter, upon petition in common form, been applied, (May 31. 1826), mutual Cases were ordered to be given in. That order having been complied with, and the same considered by the First Division of the Court, they, in furtherance of the remit from the House of Lords, put the following questions:—
1. Whether the summons is competent by the law of Scotland?
2. Supposing such action to be competent generally by the law
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3. If such tack shall endure for a period in which several heirs entitled to succeed shall succeed to the estate,—is it competent to each of them so succeeding to institute and maintain, upon their respectively succeeding, a like action or suit for damages on the like account; and how are the damages to be estimated in the respective actions or suits which such heirs respectively shall so institute?
4. Is an action upon an alleged contravention of the prohibitory or limiting clauses of an entail, when duly fenced with irritant and resolutive clauses, necessarily and de jure to be confined to the matters and conclusions directly warranted by these clauses? or may the substitute heirs of entail in any case also demand reparation and damages from the contravener or his heirs, so as to make up any loss which cannot be obtained by the immediate operation of such clauses?
5. Whether, in the circumstances of this case which have been referred to in the pleadings, and where the entail also contains the particular clauses founded on by the defenders, the pursuer is barred by any personal objection from demanding reparation, indemnification, or damages, from the representatives of the late heir?”
The following answers were returned:—
Query 4.—We are of opinion, That where the prohibitions and injunctions contained in an entail are fenced with proper irritant and resolutive clauses, it is incompetent for the substitutes, in case of alleged contravention, to maintain an action of damages; and that they must confine themselves to the remedies which the entail gives them by means of these clauses. This opinion, we conceive, stands quite clear
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Query 5.—After answering the 4th Query in the manner we have done, it seems very immaterial to consider whether the pursuer is or is not barred personali exceptione. The ground on which he is stated to be so is, 1st, That having failed to bring a declarator of irritancy against the late Duke within two years after the lease complained of was let, he has himself incurred an irritancy under the entail, and is not entitled to found upon it as authorizing the present action: That had a declarator of irritancy been brought in the Duke's lifetime, but after the two years had expired, he might have effectually objected, that the pursuer, having contravened the entail, was not entitled to declare a forfeiture under it, and that the defenders must have right to urge the same objection. Admitting that the Duke could have competently defended himself by pleading that the pursuer had also contravened, it strikes us, that it might have been necessary previously to shew that the pursuer knew of the contravention from the time of its taking place; a thing which has not been alleged, and which is not naturally to be presumed, considering that leases are private instruments, necessarily known only to the contracting parties. It seems very questionable if the pursuer could have forfeited his right by failing to complain of a contravention, of the existence of which he was utterly ignorant. A second ground on which the pursuer may be held barred from founding any claim of damages on the neglect to record the entail is, that he has taken benefit from this very neglect, in so far as he has been thereby enabled to relieve himself of personal debts to the extent of above L.100,000, which, having become capable of affecting the entailed estate, are to be paid off by a sale of part of it. To this, however, it may be answered, that as the question of personal objection becomes of consequence only on the supposition that an action of damages is otherwise competent, and as on this supposition the substitute heirs may claim damages from the Marquis to the extent of the value of the lands carried off, he is not relieved in effect of any part of his debt. It will only be transferred from one set of creditors to another. But the effect of this answer evidently depends on the substitutes making such a claim. If they do not, or cannot in the circumstances establish it, then it appears to us that the Marquis will derive
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Query 1.—We have answered this Query in what we have said on the subject of the fourth.
Query 2. & 3.—The subject of these Queries seems also immaterial; for if an action of damages cannot be maintained, it is unnecessary to inquire how these damages are to be estimated or divided among the different heirs who may happen to possess the estate during the currency of the objectionable lease. As the attention of the Court seems, however, to be called particularly to this subject in the remit by the House of Lords, it may be proper to state what occurs to us, supposing the action had been competent. It does not appear that, in the circumstances of the present claim, the least difficulty can be felt; because, as the lease complained of had expired before the summons was executed, there can be no doubt either as to the mode of estimating the damage, nor as to whom it is due. Neither do we think the difficulty considerable, where the heir in possession has not gone farther than to infringe the injunction to let at reasonable rents, having kept his leases within the period permitted by the entail. As the sole complaint, then, arises from the inadequacy of the stipulated rent, the damage will just be the difference betwixt this and what would have been a reasonable rent at the time of letting. Any variation in the value of land during the currency of the lease ought to have no effect; because the obligation being to take a reasonable rent when the contract was made, this is the time when the heir must exercise his judgment. A subsequent rise of value ought not to increase the damages, nor ought a fall of rents to diminish them; for, had a fair rent been stipulated at the commencement, the succeeding heir would at least have had the tenant's obligation to pay this during the lease, and his chance that the obligation would be fulfilled. As the annual damage, therefore, admits of immediate estimation, there seems no great difficulty in apportioning it among the successive heirs. The damage may be decerned for in its natural form of an annual payment during the subsistence of the lease, to be drawn by the person who shall have right to the rents for the time; or, if it be necessary to settle by a payment at once, by applying this in the purchase of an annuity for the period of the lease; or, where there is a deficiency of funds, by applying whatever can be recovered in procuring such annuity as it will bring. The heir in possession, no doubt, settles in this way for the succeeding heirs, as well as for his own interest; but this is no more than he is authorized to do in any litigation he may maintain regarding the estate. The difficulty may become much more formidable, if we suppose the heir to have contravened at the same time the prohibition as to endurance, by letting a lease for a period far beyond that permitted
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Query 2. & 3.—I agree with the opinion of my Lord Justice-Clerk.
Query 4.—In the case put in this Query, I think that the substitute heir is not, in all circumstances and universally, de jure confined to the remedies which are articulately and in express words provided by the tailzie. Thus, supposing the tailzie to be perfect, as stated in the introduction to the queries, but not recorded in the Register of Tailzies, and that the heir on whom the estate has devolved sells it, and that the purchaser's right is safe;—in such a case it is obvious, that a substitute heir could not be benefited in any possible way by merely irritating the contravener's right; and I do not see any thing which precludes him from insisting in an action for having the price reinvested in lands to be settled under the same destination, and under the same fetters as those provided by the original tailzie, and for having the money in the meantime, till an opportunity for reinvesting occurs, properly secured; and I think the action would also lie against the contravener's heirs. In the present case, however, taking it as stated in the introduction to the questions, the matter may perhaps stand otherwise; for the contravener, although by neglecting to do what the entail enjoined he may have occasioned loss to the pursuer, took no benefit to himself, and did not become lucratus by the transaction complained of. Thus, the claim made by the pursuer is highly penal, a parte rei; and no step having been taken during the contravener's life, it may be thought that the claim does not transmit against his general representatives; and this, on the same principle on which the universal passive title of vicious intromission cannot be made the ground of an action against the representatives of the intromitter, except to the extent of his actual intromissions, unless it has been raised and insisted in during his life. There are many
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Query 5.—I am not satisfied that the action is barred by the personal objections stated against the pursuer. They are quite of a different kind from that which occurred in the case of Barholm, where it was no doubt found that an heir of entail, who, it appeared from the libel, possessed the remainder of the estate by feudal titles made up under a new entail inconsistent with the original one, and which new entail bound him to possess by no other title, could not, in the character of heir under the original entail, pursue for reduction of other deeds alleged to have been granted in contravention of that original entail. This was plainly an objection to the title to pursue, arising from the personal conduct of the pursuer, which was available to the defenders without the necessity of any separate procedure for establishing that the pursuer himself had incurred an irritancy; but in the present case I see nothing of this sort; and it appears to me, that the pursuer's character as heir of entail, on which he founds, must be held to subsist, unless it should be set aside, if it can be set aside, by those who have right to insist in an action for that purpose.
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The law has given to every man the power of rendering his prohibitions effectual by means of irritant and resolutive clauses; and if he do not choose, or if he neglect to use them, the presumption of law is, in my opinion, that he means only to tie up his heirs from giving away his land gratuitously, but leaves them at liberty to dispose of it for onerous causes, as I have fully explained in my opinion in the Ascog case, to which I refer. When the law has given one effectual mean of rendering a prohibition effectual, I do not think that additional ones should be given by constructive interpretations of words.
But in this particular action I am clearly of opinion, that the matter has been settled, both here and in the last resort, by the judgments in the cases between the present defenders and the Earl of Wemyss
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Another consideration to show the incompetency of such an action as this, is the difficulty which, in some cases, may exist in disposing of it. In the present case there would be no difficulty, because the lease is expired, and there is but the pursuer, as heir of tailzie, who is entitled to damages if they be due. But, in order to render such an action competent, the principles on which it proceeds must apply to all cases of the sort. The late Duke of Queensberry might have let a lease for ninety-nine years, in which case there would have been many heirs, and a long course of time embraced under one lease. One heir has no right to pursue for damages to his successor; and consequently, if there happen to be twenty heirs during the lease there may be twenty actions. One heir may be entitled to damages, and his successor not; because, by the change of times, the rent reserved in the lease challenged may be reasonable. Then times may vary, so that large rents may return. Even in the course of one man's life the amount of damages may vary. In order, therefore, to afford a fair rule for estimating damage, the action would require to be current, and the amount be settled every year. For damage is the amount of a man's loss, and consequently must vary with the times. The Court is not entitled to settle it on a course of time, as if a lease were granted, for that would be making a lease which never existed. Then comes the question, How are funds to be set apart and secured to pay an unsettled and contingent loss? nay, a loss which may be dormant during one heir's time, and rise up again in the life of his successor? It is certainly so difficult to direct a Jury how to ascertain this, as to amount to an impossibility, which goes to shew the incompetency of such actions.
Query 2. & 3.—I think it necessary to add together these two Queries, in order to answer them with correctness. They are in part answered by my observations on the preceding query. But in farther explanation I beg leave to remark, that if an action be competent to one heir, to insist in an action for damages or reparation on account of a lease having been let at a rent lower than could be considered reasonable, the same right must be competent to each succeeding heir. The heir in possession is entitled to give, during his own life, the farm at any rent, however low; and, in this predicament, I do not think that it would be sufficient for each heir to state that the rent was too low at the time the lease was let, because his claim is for damages only; and if he could not shew that the rent was too low at the time that he complained, he could suffer no damage whatever. Supposing it competent for him to set aside the lease altogether, he could get no more than the rent which the farm could afford at the time, whereby, comparing that with the rent reserved, the difference must be the measure of the damage: and to me it seems to follow of course, that an action of the nature referred to must be current, and require a new proof every year during the possession of the heir, if the lease should last so long. Take, for instance, this Very case.—The noble
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Query 4.—I consider this to be answered by the observations made in considering Query 1st, viz. “That the substitute heirs cannot demand reparation and damages from the contravener or his heirs, so as to make up any loss which cannot be obtained by the operation of the irritant and resolutive clauses.” But I beg leave to add, that, in this particular case, my observations on the general law are decidedly enforced by the clause of the entail quoted in the preface to the questions put by the Court, to be adverted to in answering the next question.
Query 5.—I am clearly of opinion, that the noble pursuer is barred personali exceptione from insisting in this action. His Lordship has personally incurred an irritancy, and forfeited right to the estate, under the express words of the clause just referred to, and fully quoted in the preface to the questions.
This clause, more decidedly than any thing occurring in the other Queensberry causes, proves that no action for damages for contravention can exist. It points out the remedy:—It orders the next heir to
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In the case of Gordon of Carleton, the tailzie prohibited contraction of debt, and declared, that the contravener should forfeit for himself and the heirs of his body. Alexander Gordon, one of the heirs of tailzie, contracted debts, which were challenged by his son Alexander. But this Court (21st June 1749) found, “That, by the conception of the entail, the person contravening forfeits for himself and his heirs; and therefore it is not competent to Alexander Gordon, the son of the alleged contravener, to object to the debt upon the
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The late Mr Little Gilmour insisted in an action for setting aside a lease which had been granted by his deceased father in contravention of the tailzie under which he had possessed;—and it was pleaded by the defender, that the tailzie forfeited the contravener, and the heirs of his body; so that, if the lease under challenge was a contravention, the pursuer cut the branch on which he stood: he, eo ipso facto, proved the contravention to extend its effects to himself, whereby he had no right to pursue; and the Court being of that opinion, dismissed the action. The self-same principle appears to me to rule this action. Under the tailzie libelled on, the Marquis had his remedy: he omitted to use it, and has, by operation of the same tailzie, incurred a contravention, and forfeited his own right to pursue.
The same principle that ruled the cases just quoted, guided the Lords of the Second Division, in the question between Mr M'Culloch of Barholm and various persons who had purchased parts of that estate, (17th May 1826). It was held, that Mr M'Culloch, having contravened the entail on which he founded, was not entitled to complain of contraventions by a preceding heir.
1. In the first place, then, we are of opinion generally, that, in cases of strict entail in Scotland, damages may be awarded to the heir of entail, as representing the entailed estate or series of heirs of entail, for injuries done to that estate; and that these damages must be disposed of so as to repair as nearly as may be the injury to the entailed estate, or series of heirs. We shall suppose the case, that an estate is bought for a full price and entailed, and that, after the death of the entailer, the whole estate is evicted, from defect of right in the seller,—we ask, in such case, is there to be no claim of warrandice, or for damages, which is the same thing, on account of this loss? We can have no doubt that there must be a claim of damages against the seller. By whom then? We think clearly by the heir in possession, as representing the whole series of heirs of entail; or, in other words, for himself and his heirs of entail. His own right is clear. But farther, he is, by the form of the right, the proprietor; the others are his heirs, though no doubt under entail, but still his heirs. Why, then, should not he have right to sue the seller for damages on account of this eviction? We see no reason. We do not see how any remedy can be obtained otherwise: Nor do we see why any difficulty should be made in allowing this, more than in allowing the heir of entail in possession to maintain all the real rights of the entailed estate. He, it is clear, may pursue to vindicate the real right to the land under the entail, if an attempt is made without right to usurp it, or any part
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2. It appears to us, that the temporary nature of any loss caused by injury to an entailed estate can make no difference, except in the equitable mode of disposal of the damages recovered. Put the case, for instance, that on an entailed estate a mansion-house is set fire to, and destroyed injuriously,—or that a wood or fences are destroyed,—or that the agricultural state of the land is deteriorated, so as to require a certain time to restore it: Or suppose that a liferent, or temporary right of usufruct, or feu, affecting the whole, or part of an entailed estate, is evicted, from fault in the party who sold it to the entailer; or that a lease for 500 years, at a nominal rent, is evicted out of it in the same way, or for 100, or 50, or 20 years; or that an annuity is evicted out of it for 100, or 50, or 10 years; or a servitude of any kind for a limited time—it seems equally clear, that damages must be due, and that the heir in possession must have right of action for them. The only difference must be, that the damages, when recovered, would be employed in a different way, i. e. as closely as might be to compensate the parties who suffered, or were to suffer,
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3. We cannot see why it should make any difference, that the injurer of the entailed estate is himself one of the heirs of entail. Suppose, for instance, that an heir in possession maliciously breaks down a dyke, and lets the sea sweep away an entailed estate; or burns, or takes down and sells the materials of the mansion-house;—can there be any doubt that, after his death, the next heir of entail can sue his representatives for the damages? And the case seems just equally clear, when the wrong done by an heir consists in defeating the entail injuriously; as in omitting the irritant and resolutive clauses in making up titles, and so alienating the estate to an onerous third party,—or any real right out of the estate,—or conveying it with debt to such party; or in making such alienation or contraction of debt while the entail is still unrecorded,—or in making an onerous change of the succession in such circumstances. In all these cases there seems to be no room for doubt, that the parties suffering must have relief by action of damages; and that, whatever difficulties there may be in other respects, at least the heir holding, or entitled to hold, the entailed estate, may sue, as representing himself and the other heirs, i.e. his heirs of entail. Again, the same thing must hold in case the injury from the wrongous act of an heir of entail be of a temporary nature, as the constitution of a liferent or temporary feu, or servitude, or annuity, while the entailing clauses stand omitted in the making up the titles, or the entail stands unrecorded. In these cases it seems equally clear, that the heir in possession, or holding right to possession, of the entailed estate, must have right to sue for damages, as representing the series of heirs; and that the damages must be liable to an equitable disposal, to provide for the fair interest of all concerned as closely as may be. Put the case, then, that an estate worth L.10,000 a-year is let on a lease for 1000 years, at a rent of L.100, by an heir of entail who has omitted to insert the fetters in making up his titles, or while the entail is unrecorded, and that at his death he leaves this lease operative against the entailed estate,—we can see no reason why a claim and action for damages should be less competent, or otherwise operative in this case, than if a similar lease had been found in force against the estate by the fraud of a person who sold it to the entailer, and contrived to get the lease concealed from him; nor indeed any reason why the effect of such a lease should be different in this respect from that of a perpetual feu for the same rent. Diminish, then, the endurance, and increase the rent; let it be a lease for 100, or 50, or 19 years; let it be for a rent of L.500 or L.1000, the rent still being grossly inadequate, the principles of law applicable to the case remain the same. Let it then be a lease only of one farm, for a moderate time, but still the
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1. We think the summons competent.
2. and 3. We think that, in the case referred to, the heir of entail would, as representing the whole series of heirs of entail, or in other words, for himself and his heirs of entail, be entitled at once to claim damages for the whole injury done, or to be done, to the entailed estate by the lease, without any regard at all to the probable duration of his own life, or of his right to the entailed estate: That, in such a case, it would in like manner be competent for any after heir of entail to demand damages for himself and the after heirs, though we think not for any heir who predeceased him, unless he claimed as the representative of that heir: That we do not conceive it would be competent for any heir of entail to demand a priori damages as for himself alone, while the endurance of his life, or right to the estate, was uncertain: And that if, in such a case, no action was brought during the currency of the lease, we can see no principle whatever on which the separate representatives (if they had separate representatives) of every one heir who had suffered from the lease could be denied action of damages for the loss accruing to him.
4. In case an entail be not recorded, we think that an heir of entail, upon contravention, may demand damages from the contravener
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5. We think this question must be answered in the negative. The deed of entail grants “full power, warrant and commission, to as our procurators, or to any one or other of the heirs of tailzie before specified, to cause present this our disposition of tailzie before the Lords of Council and Session judicially, and procure the same recorded in the Register of Tailzies, and to expede charters and infeftments thereon agreeably thereto, in terms of the Act of Parliament anent tailzies, and that either in our lifetime or after our decease.” The maker of the entail died in 1778, when he was succeeded by the late Duke William, who lived till 1810; and he was succeeded in this estate by the present Marquis. The entail was not recorded till 1818. It has been argued, that as the Marquis might have applied to have this tailzie recorded, he is barred from pursuing any action founded upon a contravention of it in consequence of its being an unrecorded entail. We are aware that it is the privilege of every heir-substitute to call upon the heir in possession to produce and record the entail, under which the one possesses, and the other may eventually succeed; and the commission in this case does not seem to us to carry this right higher, or to impose any obligation upon the substitute heirs, the neglect of which is to import a forfeiture of any of their rights. It gives authority to the heirs, but it imposes no obligation on them; and therefore we do not think that an heir-substitute neglecting this, is guilty of any wrong which can bar his action against the heir in possession, or representatives of that heir, for a contravention of the entail that is not reducible. Again, as to the duty of the heir in possession immediately to record the entail, we have to observe, that the Marquis was only an heir-substitute until 1810, when he succeeded; and therefore, supposing him to have presented this tailzie in 1810, on his succession, and recorded the same, this would not have prevented the injury of which he complains through the acts of Duke William. As we think, therefore, that the Marquis cannot be barred by his neglect to record while substitute, so we also hold it is impossible to refuse to sustain action at his instance, because he did not record the entail immediately on his succession. Indeed we must observe farther, that the lease objected to was granted in 1799. The objection therefore must be, that the pursuer did not call upon the late Duke to record the entail before that time. Now, we believe the pursuer was a minor at that time. Is it to be said, then, that his claim to redress for any contravention is cut off by a neglect to record the entail while he was a pupil or a minor? Yet it is only this neglect that can possibly be founded on. Besides, we do not see how the failure of the pursuer to record this entail can be pleaded by the representatives of the former heir, who was equally a wrong-doer, as a bar to his claim of damages against them. If the pursuer, by succeeding to an estate with the entail unrecorded, has charged it with his own debt, the future heirs will be entitled to claim damages to this amount from him; and this claim at
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On advising these opinions this interlocutor was pronounced:—
“The Lords, considering that the Opinions returned by the Lords of the Second Division, and the permanent Lords Ordinary, do not exhaust all the questions remitted by this Court for their consideration; and that, in the event of their answers to the questions not being agreeable to the opinions of the majority of the whole Judges, it might become necessary that their Lordships should give their answers to the other questions; of new remit the questions to their Lordships, and request that they may return
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In consequence of this remit, these Opinions were given:—
1. That the summons is competent.
2. That an inquiry being instituted as to the true annual value of the farm at the time of entering into the lease, the difference between such value and the rent stipulated is, the loss or damage annually sustained by the heir first succeeding to the granter of the lease; and if that heir does not outlive the lease, the same will, in like manner, be the annual loss of the heir or heirs who may possess till the issue of the lease.
3. That until an action for this damage has been raised, any heir in possession is entitled to bring a claim against the representatives of the contravener, for the loss or damage, from the commencement of his own possession, and during the currency of the lease; also, retrospectively, for the loss during the possession of a preceding heir, if he be the representative of that preceding heir; but after the damage has been ascertained at the instance of the heir in possession, it is not competent for any succeeding heir to institute a similar action.
4. That where an entail, though complete in its restricting clauses, has not been recorded, an action of reparation or damages in the case of a contravention may be competently instituted against the representatives of the contravener.
5. That the pursuer in this case is not barred by any personal objection from instituting such an action.
With respect to the questions which have been put, I am humbly of opinion,—
1. That the summons or action instituted is competent to be entertained by this Court, in the sense in which the word competent is understood by the law of Scotland;—that is to say, that the Court is bound by law to hear the demand of the pursuer, and is bound to call on the defenders to obviate the demand, if they can. No doubt, the pursuer may be barred from insisting in his demand, and in that sense the action may be said not to be competent; but that does not properly apply to the competency of the action.
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2. I also humbly think, that there can be no sort of difficulty in as certaining the loss or damage sustained by an heir of entail in claiming under a contravention such as has been alleged. The true annual value of any farm at any given time can be easily ascertained, and the difference betwixt that value and the stipulated rent is the loss or damage to be repaired. That the heir in possession will draw, as long as he lives, during the subsistence of the lease; and if a new heir succeed, he will be entitled to draw the same rent, and so on successive, till the right expires. As the value of the corn produce is annually ascertained by public authority in every county of Scotland, and the value of other produce also well ascertained, there is no practical difficulty in fixing the value of any farm; and in such a case as the present, there can be no difficulty in ascertaining the loss or damage to any heir of entail, whatever be the endurance of the lease.
3. According to the principles of the entail law in Scotland, when a jus crediti is created to every substitute heir of entail, however remote, he is entitled, upon contravention by an heir in possession, to bring an action to obtain redress; and this action is for the common benefit, and for the protection of the general right conferred by the entailer. Of course it necessarily follows from this, that if a succeeding heir finds it necessary to bring an action against the representatives of his predecessor for the reparation of any wrong that had been done, he is the dominus of the estate, and is, by the law of Scotland, considered as the representative of the whole body of heirs, and he is entitled to insist for reparation in his own and in their rights;—and consequently, what belongs to himself he will appropriate to his own use; and what may pertain to his successors, or rather to the estate itself, he is bound to preserve and protect for the use of the other substitutes. Such being the nature of the right of an heir of entail, and his duty in prosecuting all contraventions, and from all other substitutes being in the eye of law entitled to appear and to concur with him in such prosecutions, it is perfectly plain that the representatives of a contravener never can be subjected to successive demands of succeeding heirs to repair any damage or any loss which has been already determined with a predecessor. It is always to be recollected, that although heirs of entail do not represent one another, but merely represent the entailer, yet where an heir of entail acts in the proper discharge of his (duties) rights under an entail, he binds all the succeeding substitutes; and of course, in such a case as the present, if the damages have been ascertained at the instance of the heir in possession, it is not competent for any succeeding heir to institute a similar action.
4. I am also humbly of opinion, that as an obligation is always created by a prohibitory clause, and that although the Act 1685 entitles proprietors to protect these obligations by irritant and resolutive clauses; yet when these become insufficient from the circumstances of the case, action of reparation or damages in the case of contravention
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5. I am humbly of opinion, that there is nothing occurring in the present case on the part of the pursuer, which can bar him from insisting in his present action. If the pursuer has contravened any part of the injunctions of the entail, he in his turn will be amenable to the succeeding substitutes; but third parties are not entitled to vindicate their rights, or to compensate the wrong which their predecessor has committed, with the wrong committed by another.
What has now been stated relates merely to the general questions of law, in which the majority of the consulted Judges appear to concur. There still remains a material part of the facts of the case, as to which there seems to be required a great deal more explanation and investigation, before the Court can arrive at any determination. In the present case it is admitted on all hands, that there was no direct diminution of the rental. It is also admitted, that no grassum was taken. In short it is admitted, that nothing was put directly into the pocket of the late Duke. It is also to be remembered, that he was the dominus of the estate, and had, to a certain extent, the uncontrolled management of the property. It is also to be kept in view, that during the period that the late Duke possessed the estate, the most extraordinary variation occurred in the value of landed property in Scotland, and that even during the subsistence of the leases in question. It therefore becomes a question of very considerable difficulty to decide, what a prudent proprietor ought to do under such fluctuations. For these reasons it appears to me, that it would be proper for the Court to direct the parties to give in Cases directed to the facts which are respectively alleged by them, accompanied by condescendences of what they offer to establish by proof; as vague allegations with respect to the value of land ought not to be regarded in a matter of the kind, particularly as so much speculation has taken place in Scotland in this matter; and of course. what any tenant may have offered for land,
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I concur in the opinion which has been given by Lord Mackenzie, and the other Judges who concur with his Lordship.
But upon the last point, viz. whether in this case the executors are liable, or what may be the extent of their liability—I think there is very great difficulty, and upon which I think we may still require to take the opinions of the other Judges.
Suppose the late Duke of Queensberry had derived an immediate and direct advantage from the transaction, then the executors might have been called upon, because the funds would have been thereby increased; but that is not the case here. The Duke of Queensberry got no advantage by the transaction, and I doubt much if the executors can be liable where they derive no benefit. Suppose all the opinions regarding the competency of the action were right, and that a claim for damages lay, there still remains the question, whether, in the circumstances of this case, the executors are liable for these damages? and upon that point I am not prepared to give any opinion at present.
The Court then pronounced this judgment:—
“Find, agreeably to the opinions of the majority of the whole Court, lmo, That the present action is competent by the law of Scotland, and that the pursuers are thereby entitled to state their demand. 2do, That where an heir of entail grants a lease at an undervalue in point of rent, contrary to a prohibition in the entail, and which lease cannot be legally reduced, and when it is established that the prohibition is contravened, the damages are to be estimated and measured by the difference of rent, between what has been fixed by the lease and what the lands would have given if let in terms of the entail, secundum
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arbitrium boni viri,—and the heir of entail in possession will be entitled to draw, during the subsistence of his right, that difference of rent from the heir of the contravener. 3tio, That every substitute heir of entail has such a jus crediti under the deed, as makes it competent for him to institute and maintain any action for damages, where a prohibition has been contravened; and where such action is instituted, the same is to be considered for the benefit of all concerned; and that, if a difference of rent is fixed in a suit at the instance of an heir of entail in possession, who is dominus of the estate, and representative of the other heirs, against the heirs of his predecessor, the same will regulate the right of the succeeding heirs who afterwards enter into possession, pending the endurance of the lease—and they will be entitled to draw in their order, according to the nature and extent of their right to the same, such surplus rent as may be fixed in any such action; and that, after the damage has been so ascertained at the instance of a proper party, it is not competent for any succeeding heir to institute a similar action. 4to, That although an entail be complete in its restricting clauses, yet an action of reparation or damages in the case of contravention may be competently instituted against the representatives of the contravener, so as to make up any loss which cannot be obtained by the immediate operation of such restricting clauses. 5to, That the present pursuers are not barred by any personal objection from instituting the present action, and from demanding indemnification from the representatives of the late heir: And further, with reference to the question, whether such an action lies where the heir is not lucratus? the Lords remit to Lord Meadowbank, Ordinary, to prepare the cause, and to report to the Court.” *
The Duke of Queensberry's executors appealed, and both parties again maintained the same pleas which had been formerly urged, (ante, vol. ii. 265.), and as to which the remit had been made.
Earl of Eldon.—My Lords, With respect to the Queensberry case, which we have just heard argued, it differs in this respect (I mean according to the argument at the bar) from the two cases of
Stewart v. Fullarton, and
Bruce v. Bruce, that there is no prohibition against letting of leases; and that suggestion from the bar appears to me to deserve a great deal of consideration, because unquestionably
_________________ Footnote _________________ * 6. Shaw and Dunlop, 706.
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My Lords, with respect to this case I shall say no more at present, than that it may be my duty to explain pretty largely hereafter, (having been concerned in making that remit, to which reference has been made, to the Court of Session), the embarrassment this House was under with respect to this case. I hope I shall do it satisfactorily, after looking back to what was said upon the subject. There are very many cases, and it is exceedingly difficult to reconcile the recent decision that the House came to in respect to the Duke of Buccleuch's case;—the difficulty, perhaps, arises in one's mind the more, because one cannot help feeling that there is a moral right which one would wish to carry into a legal right; but, in making that attempt, we must not go further than the law will enable us to do. My Lords, I should hope that, in the course of a very short time, we shall be prepared to decide these cases; and would request, that in the meantime the gentlemen who maybe in possession of the notes of speeches made in this House, will have the goodness to furnish them, as far as they can, to the person
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Earl of Eldon.—My Lords, This case, in different shapes, has been before your Lordships several years. The summons recites deed of entail, (a copy of which I now hold in my hand), which was executed by Charles Duke of Queensberry and Dover, who, after making several limitations, and describing a great variety of property which was to be included in this entail, annexed the following conditions, one of which is, that the heirs succeeding by virtue of this tailzie shall be bound and obliged to pay the entailer's debts, so far as they shall not be recoverable from his unentailed or personal estate. Then follows this clause:
“And with and under this restriction and limitation, that the whole heirs aforesaid are and shall be limited and restrained from selling, alienating, impignorating, or disponing the said lands and estate, or any part thereof, either irredeemably or under reversion, and from burdening the same in whole or in part with debts or sums of money, infeftments of annualrent, or any other servitude or burden whatever, (excepting only as herein after-mentioned), and from doing or committing any act, civil or criminal, and granting any deed, directly or indirectly, whereby the said lands and estate, or any part thereof, may be affected, apprized or adjudged, forfeited, become escheated or confiscated, or any other manner of way evicted from the said heirs of tailzie, or this present tailzie prejudged, hurt, or changed.”
There is then the following restriction, on which the question arises, as to the power of granting leases:
“With and under this restriction, that it should not be lawful to any of the said heirs to set tacks or rentals of the said lands, or any part thereof, for any longer space than nineteen years, and without any diminution of the rental, or for the setter's lifetime in case of any diminution of the rental; and that it shall not be lawful to any of the heirs to take grassums for any tack or rental to be set by them,”
(grassums, your Lordships know, are slump sums of money for renewals at a smaller rent), “but to set the lands and estate at such reasonable rents as can be got therefor, so that the succeeding heirs may not be hurt or prejudiced by the heir in possession selling the lands at an undervalue, or taking, by way of grassum, what falls annually to be paid out of the produce of the lands.” Then there are irritant and resolutive clauses. And there is this peculiar clause:
“That in case any of the heirs hereby called to the succession of our said lands and estate, shall incur any of the irritancies contained in this present tailzie, the heir next called to the succession shall be obliged to prosecute and follow forth a declarator of irritancy and contravention, and to procure him or
_________________ Footnote _________________
* The further consideration of the case was then postponed to this day.
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Your Lordships will observe, that these are very particular clauses; for there are not only irritant and resolutive clauses, but your Lordships will find that it is incumbent upon the heirs next in succession to follow forth a declarator of irritancy and contravention within two years after the former was contravened, under the conditions and restrictions before and after written, otherwise he shall lose his right to the estates, and the same shall devolve to the next heir. This declarator of irritancy and contravention is to be prosecuted by the heir in possession; and if he does not do that within two years, he is himself to be considered as a contravener; and those who come after him may deprive him in the same manner for his contravention, as it was intended by the author of this deed that he should be able to deal with the heir before named who had so contravened. Your Lordships are aware, that, according to the law of England, (which appears to me to be much better in this respect than the law of Scotland), if a person becomes, by limitation, the absolute owner of an estate, if you attempt to restrain him from making leases, you make an attempt which is repugnant to the very nature of the estate given to him, and that will have no effect at all. It is clearly otherwise in the law of Scotland; for though you make the person the absolute fiar of the estate, you have a right, by those irritant and resolutive clauses, to reduce him to the situation of a very limited owner of that estate, although, by the first clause in the instrument, he was to become the fiar of the lands. It is the case in England, too, that whenever a lease which is made is not according to the terms of the settlement, and which is to the prejudice of the tenant for life, the next taker has nothing to do but to prove that that lease is not made according to the terms of the settlement, and thereby he sets aside the lease; and he has in that case a power to go back for gone-by rental a particular period—six years, I think it is. This is not so in the law of Scotland. The allegation made in the summons was, that the person in possession had let a lease that he was not at liberty to let; that it was let for an undervalue, and (so to express myself) not let for such a reasonable rent as at the time of making the lease he might have obtained for his own benefit, and the
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“That the said William Duke of Queensberry did, in the year 1799, enter into a transaction with David Staig, by which Staig, on the one hand, renounced the lease that had been granted to him in the year 1796; and, on the other hand, the Duke granted to him a new lease of the said lands and farm for 19 years, at the yearly rent of L.140, being the same rent as was payable by the former lease, although at this time the lands and farm were worth L.550 sterling of yearly rent, by which means the lease was prorogated for three years, to the great prejudice of the Marquis.”
It is then stated, that “the entail had not been recorded in the Register of Tailzies when the leases were granted as aforesaid by the Duke; and thus the tenant acquired right to possess the lands and farm in virtue thereof, notwithstanding the Duke, by granting the same, had contravened the entail; but, nevertheless, the executors and personal representatives of the Duke are liable to the pursuers for all loss and damage which the said Marquis, pursuer, has sustained by and through the granting of the said leases;” and then it prayed, that the damages which he conceived himself to be entitled to, a sum of about L.5000 sterling, might be awarded, together with the usual interest on the same, and the expenses. My Lords, defences were put in, and there were afterwards additional defences put in, for the executors of the Duke of Queensberry; and, with respect to a material part of those additional defences, they state that the action brought is incompetent, upon the following additional grounds, besides those stated in the original defences. Those stated in the original defences were,—“That supposing the action was liable to no objection on the ground of competency, there was no ground for subjecting the defenders in damages on account of the leases complained of: that the averment that the Duke, in granting them, was actuated by a fraudulent intention to injure his successors in the estate, was not true: that the Duke had no such intention, and that the defenders defied the pursuer to prove it: that the only other allegation made in the summons, that the farm was worth more than the rent payable by the lease, was altogether irrelevant; for though it should be held that the heir under this entail was bound to let at reasonable rents, yet the Duke was entitled to use his discretion in judging of what was reasonable, and that, if he reserved as much to his successors as he did to himself, he must be held to have fulfilled his obligation: that
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“The deed of entail under which the noble pursuer has succeeded to the Tinwald estate, contains certain irritant and resolutive clauses, declaring, that any heir who shall contravene the conditions of the tailzie should forfeit his right to the estate, and that the acts and deeds done in contravention should be void and null. But these are the only penalties which the deed of entail has annexed to any act of contravention; and it does not contain any condition or declaration whatever, importing that the representatives of any heir who should possess the estate should be liable in damages to a succeeding heir, on account of any alleged act of contravention. It would, therefore, be plainly inconsistent with the known rules of interpretation applicable to rights of this nature, to allow the pursuers, in the present case, to demand reparation from the defenders on account of an alleged act of contravention on the part of their author, while the only deed under which the pursuers have right to the estate gives no countenance, whatever to any such demand. If, in consequence of the entail not having been recorded, the pursuers cannot avail themselves of the only mode of redress which would have been competent to them against the alleged act of contravention, they have themselves to blame for not having insisted upon the entail being recorded during the lifetime of the late Duke of Queensberry.”
After the summons and these answers had been put in, there was an interlocutor ordering condescendence and answers. It is not necessary for me to state to your Lordships the nature of this long condescendence, and these very long answers. It will be in your Lordships' recollection, that, when this case was argued at the bar, there were several observations made on the case of the pursuer—what ought to be expected of him, regard being had to the advantages which he had received from certain deeds and transactions with respect to this estate; but it is sufficient to say, that we have nothing to do, I apprehend, with the question, whether the pursuer's conduct has been commendable or otherwise? My Lords, after the Counsel had been heard on the condescendence and answers, mutual informations
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“Upon report of Lord President, in absence of Lord Meadowbank, Ordinary, and having advised the mutual informations and other papers given in by both parties in this cause, the Lords find the present action competent; repel the additional defences, and remit to the Lord Ordinary to proceed accordingly”
My Lords, there was an appeal to this House against this interlocutor, upon which the judgment of this House was pronounced so long ago as May 1826. Your Lordships, however, will permit me to observe this short ground, that the House was very much disturbed, at the period, by the doctrines in the Ascog case, and various other cases and questions, whether, where there were obligations, irritant and resolutive clauses, these were to be enforced by inhibition; or whether the remedies given by the deed of entail itself, were not remedies which ought to be pursued in the case of an alleged breach of the conditions, &c. that were imposed by the deed of entail? And, under the circumstances of difficulty which the House was under with respect to regulations of this nature, the judgment of the House was,—(Here his Lordship read the judgment quoted p. 254.)
My Lords, unquestionably it was the feeling of this House, and that feeling has been rightly understood, that when the cause was remitted back to the Court of Session in Scotland, they were to review the interlocutor. It was meant, not merely that the Court of Session should consider the difficulties in respect to damages, but they were to review the interlocutor itself, having regard, among all the other considerations, (and the remit calling upon them, in the review, to attend to this consideration), how the damages were to be estimated. And I think I do not misrecollect what passed, when I state, that the Counsel at the bar were questioned at several periods with respect to those damages, and were requested to inform us how, according to their notions and speculations, the damages might be assessed; or to inform us, if they could inform us, by any decision, how such damages had been assessed; but they were not able to give any satisfactory answer to those questions, notwithstanding those questions were propounded to them by the House.
My Lords, the case having gone back again, it has produced great difference of opinion among the learned Judges. I observe, that those who have concurred in the opinion that this action cannot be sustained, state great difficulties with respect to the assessing the damages in certain cases, particularly one learned Judge, I think my Lord Cringletie, in his judgment;—and, on the other hand, there were four Judges who held the obligation to be competent, and who do not feel this difficulty about estimating the damages, because the last heir lived beyond the duration of the lease. That circumstance does not seem quite to remove the difficulty; because, if the heir was to have damages assessed at the period when his right was infringed upon, it does not follow that because he actually outlived the lease, that he has lost
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My Lords, on referring to the different judgments which have been given by this House, and by the Court of Session, it is impossible that they can all stand; and the question is, which of
_________________ Footnote _________________ * The speeches of the Judges of the Court of Session in the Ascog case, have been (in order to make the reports of these three cases complete) inserted in the Appendix, No. I.
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The House of Lords accordingly ordered and adjudged, that the interlocutors complained of be reversed. *
Appellant's Authorities.—Earl of Wemyss and
March v. Duke of Queensberry's Executors, Jan. 14. 1823, (2. S. & D. 107.); March 10. 1824, (2. Shaw's Ap. Ca. 70.) Duke of Buccleuch, Nov. 13. 1822, (2. S. & D. 6.); Feb. 1. 1826, (4. S. & D. 412.) Bryson, Jan. 22. 1760, (15,511.) Lord Ankerville, Aug. 8. 1787, (7010.) Lockhart, June 11. 1811; Hope's Min. Prac. p. 403.; Stair, 2. 3. 59. Binney, Jan. 28. 1668, (4304.); Stair, 4. 13. Clauses Irritant; Ibid. 2. 1. 23.; 1. 9. 30. Bankton, 1. 3. 152. 158.
Hamilton v. M'Dowall, March 3. 1815,(F. C.)
_________________ Footnote _________________ * In the Appendix, No. II. will be found a note by the late Mr Chalmer, (communicated to the reporters shortly before his death), of the principles fixed by the recent decisions on entail questions.
Respondents' Authorities.—Kames' Law Tracts, p. 144.; Dalrymple on Feudal Property, p. 139.; Hope's Min. Prac. 16. 9. 13.; Mackenzie, ii. 490.; Stair, 2. 3. 59.; Ersk. 3. 8. 23. Bryson, Jan. 22. 1760, (15,511.); Hope's Min. Prac. 16. 11.; Mackenzie's Institutes, 3. 8. 11.; Ibid. on Tailzies, ii. 489. Gibson, Nov. 24. 1795, (15,869.) M'Nair, May 18. 1791; Bell's Cases, 546.;
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Solicitors: J. Chalmer— A. MacRae,—Solicitors.