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SCOTTISH_HoL_JURY_COURT
No. 63.
OPINION of Lord Balgray in the Case of Stewart
Fullarton (Ascog), reported ante, vol. iv. p. 196.
From some observations made on the part of the pursuer, it seems necessary to consider, in the first place, the terms of that clause of the entail of Ascog on which the pleas of the defenders are founded. The terms of the provision, or, as it is sometimes called, the prohibitory clause, are as follow:
“Nor shall the said heirs of tailzie have any power or liberty to sell, annalzie, or wadset the lands and others foresaid, or any part thereof.”
I have thought it necessary to compare this clause with similar clauses in deeds of entail which we know had been prepared by those who were well acquainted with the forms of the law of Scotland. I have compared it with the prohibitory clause in the entail of the dukedom of Rothes, which is thus expressed:
“That it shall be no ways leisome or lawful to the said, &c. to sell, annalzie, dispone, dilapidate, or put away the said lands and estate, or any part or portion thereof.”
This deed of entail was prepared by Mr. Dallas, of St. Martin's, the first and the most laborious compiler of our forms in the law of Scotland, and who tells us, that he had framed the deed with uncommon pains and attention. This deed was executed in 1684.
I have also compared this clause with that contained in the Rosehall entail, dated 4th June 1689, which was executed by Sir George Mackenzie, and which is the more worthy of attention on account of his being the person who prepared the Act 1685.
“That it shall in no wise be leisome to the said George M'Kenzie, my son, nor to any other of the heirs of tailzie and provision above expressed, to sell, alienate, or dispone the lands, barony, and others above rehearsed, or to grant wadsets or infeftments of annual rent, &c.; neither shall it be lawful for them to contract debt, &c.
That the lands, &c. shall not be affected therewith in prejudice of the heirs of tailzie, seeing these presents are granted sub modo.”
I have also looked into entails of later times, prepared by the most eminent conveyancers, and I find that the style that they have adopted is pretty similar to one another, and it will be found very nearly to be the same with that which appears in the system of styles which has been given to the public by the members of the Writers to the Signet. The restraining clause there recommended is thus expressed:
“That it shall not be lawful to nor in the power of the heirs male of my body, or any of the heirs of tailzie and substitutes above written, to sell, alienate, dispone, burden, dilapidate, or put away the lands and others, or any part thereof,” &c.
From comparing the clause in the entail of Ascog, under consideration, with those which have been noticed, and indeed with almost every entail which has been brought under discussion, it appears to be perfectly clear that the present restraining or limiting clause is in perfect conformity to the law and practice of Scotland.
Supposing this clause to be according to legal form, the question still remains, what are its effects? Does it constitute any obligation, and so create any corresponding and relative right? If there is no obligation constituted, then it would be obviously unnecessary to enter upon any further discussion; if, on the other hand, there is an obligation, and some relative right thereby created, it becomes matter of investigation what that obligation is,—what is its extent and nature?
To maintain that no obligation whatever is created by such a clause can only proceed on one or other of two grounds; either that the words that have been made use of by the granter of the deed are incapable of creating any obligation in consequence of their not being agreeable to the form adopted in the law; or that a prohibition annexed to an appointment or substitution of heirs of entail, and declared to be a condition of the settlement, if not accompanied with irritant and resolutive clauses, never can create an obligation.
With respect to the first this appears not to be founded in fact, because almost in every entail which has in practice been allowed to be completely effectual, the clause is expressed nearly in similar terms, and of course it is quite vain to argue that the present clause
It is very true, that in the present case there is no direct or express obligation, but from the nature of the thing this can never take place but where the granter or entailer himself chooses to bind and oblige himself, which happens either in contracts of marriage or in mutual entails; but in all other cases where the provisions of an entail commence with the institute or heirs, which constitute the great majority of entails, no direct or express obligation ever can exist.
The origin of the obligation, which arises from a deed of entail, appears to depend on the simplest and plainest principles of law.
It may be observed, generally, that wherever the complete jus disponendi de re et ejus fructibus is acknowledged, the proprietor has the right and the power to dispose of his property under what restraints and limitations he thinks fit. In our law there is no control, nisi lex obstat. We consider that the will and intention of every proprietor must be obeyed by all his heirs and representatives as if he were a lawgiver.
This has always been the doctrine of the law of Scotland from the earliest times; this Court has carried it so far, that for a long period effect was given to general burdens contained in grants, not merely as against heirs and representatives, but against singular successors; and the reason for giving those extensive effects was, as Mr. Erskine expresses it, “in consequence of the right competent to all proprietors of disposing of their property under such conditions and limitations as they shall judge proper.” (2 Ersk. 3. 50.)
This was not corrected till the case of the creditors of M'Lellan, decided July 1734. (Ib.)
There can be no doubt, therefore, that this is the general law of Scotland.
The only question, therefore, which can remain, is, whether the law is different when applied to a deed of entail? Has a proprietor, in executing this deed, less power over his representatives than in any other deed?
When we examine a deed of entail it may be truly said, that the dispositive and prohibitory clauses form its very essence. These are the clauses which properly constitute that deed. The first form of entail contained no other clauses. All the other clauses are intended for no other end or purpose than to give efficacy to the will and intention of the granter, which are contained in those two clauses. The irritant and resolutive clauses, of which we hear so much, can contain no obligation whatever; they are merely invented for the purpose of enforcing the dispositive and restraining clauses, and containing a punishment on the receiver of the gift if he contravenes the intention of the granter. Those clauses may be expressed in a single line, and probably it is the best mode of so expressing them, to avoid all future dispute and controversy.
Some very unaccountable and strange misapprehension seems to arise in the minds of some persons regarding the deed of entail. It seems to be viewed as a confused, perplexed, anomalous, and modern contrivance; whereas the slightest consideration may teach any one that no deed can be simpler in its form and constitution. It is nothing but a simple disposition, with limitations and provisions, and these made effectual by defined penalties. There hardly exists a common feu disposition which does not prefer some heirs to others, and which does not contain some limitations or provisions of some kind or other. A deed of entail may contain a more prospective series of heirs, or more numerous limitations, according to the will and inclination of the granter, but these, be they few or many, make no change on the form or kind of the deed. The irritant and resolutive clauses are nothing but simple penalties on contravention, assented to by the parties. No verba solennia of any kind are required.
As by the law of Scotland the heir of entail is dominus or fiar, it is the prohibitory clause which is intended to restrain him in the exercise of those rights which would otherwise be competent to him as the fiar. When such restraints are imposed, the obligation to attend to them appears to be founded on the plainest principles of law, and even upon common justice. It is founded upon a quasi contract between giver and receiver.
It is admitted by the pursuer, and indeed must be admitted by every lawyer, that every granter by the law of Scotland may bestow his property in any manner he pleases; there is no person can control him, except the general law: but it is plain that no person
On the other hand, the grantee, disponee, or institute, by whatever name he may be called, has a right just as uncontrolled to maintain that he will accept of any property from another under whatever restraint, condition, or obligation the disponer chooses; his heirs or representatives, from the very nature of that representation, have no power to control him. The receiving of any right is a declaration on the part of the receiver that he is to obey the restraints and limitations imposed on him by the granter; the receiving of the right is tantamount to his granting a special deed, declaring, that although he gets the property, yet that it shall be understood as being under such conditions and provisions.
This would no doubt create a direct and express obligation, but still this would not be agreeable to the law and forms of the law of Scotland, because the grantee of such a deed could only make it personal, as the receiver under such circumstances is not, in titulo, to create any burden on the property.
When, however, it is contained in the deed flowing from the granter himself, then the quality appears on the face of the deed, and is comprehended in the procuratory and precept, and enters into the infeftment, and so is promulgated to the public; but the obligation which is constituted against the receiver is precisely of the same kind and nature as if he had at the same moment executed a relative deed and obligation.
This has always been the view which the law has taken of this obligation, for, in the older decisions of the Court on such questions, it will be found that our lawyers make use of the expression, that when the receiver disregards the restraint or prohibition, he is said to contravene the warrandice of the deed, although it is evident that, pro formâ, he has executed no deed whatever, but merely accepted what has been given to him; it is, therefore, very plain, that the obligation which is created in this case arises from the grantee's own deliberate act and consent.
This same deliberate consent is the foundation also of the operative effect of the irritant and resolutive clauses. Any man may consent to what punishment he chooses, in the event of his contravening the obligation under which he comes. This is quite congenial to the law of Scotland; for there is almost no deed relative either to real or personal rights but what contains a penalty; and this penalty, less or more, has always been made effectual by the Court.
The efficacy, therefore, of these clauses between the immediate parties, such as granter and grantee, is derived from mutual assent and
This is more peculiarly our form with respect to the deed of entail than any other deed. In the special service it must be observed to the very letter; and even, according to practice, in the general service it has been so observed, and the generality of practitioners do observe it at this day. The Court, at an early period, was also of this opinion, and they so decided this case, 1st February 1726, Stewart against Denham. * But this was properly reversed in the House of Lords, and, although it was so, yet still practitioners have adhered, though not necessary, to this practice.
In this way, the contract which is created between the original parties is renewed with every succeeding heir; and this contract and agreement the law and legislature are bound in justice to enforce.
All this appears to be extremely plain when the matter is confined to the original parties and their heirs; but when the operation of this obligation comes to affect third parties, different principles of law emerge and come then into operation, for whatever contracts the parties may have entered into themselves, they have no right by such obligations to affect the rights of third parties.
For a long period, when the commerce of land, particularly in Scotland, was not very extensive, the limitations and provisions contained in the dispositions of land were not much felt; but, in the progress of time, when land became the object of commerce, and when proprietors were under the necessity of disposing of their property, those limitations and restrictions came under consideration; and it was long much doubted how far it was possible to sustain such provisions and obligations against third parties, particularly when it was acknowledged on all hands that the grantee or institute of the deed was the dominus or fiar of the property. Lawyers very soon saw the difficulties which occurred, and at first it was thought that third parties might be protected, and the will of the disponer at the same time carried into effect, by allowing of
_________________ Footnote _________________ * Mor. 7275.
Inhibition was afterwards thought of, and properly. According to general principles it was the best remedy that could be devised; but still the remedy was very imperfect; it was merely personal, and could apply only to the deeds of the person inhibited, and to such of these only as were subsequent to the inhibition.
The difficulties in making the deed effectual against third parties, consistent with the general notions regarding property, led lawyers to protect entails by contriving irritant and resolutive clauses, which have now made such a figure in this deed of entail. Even that mode of protecting the right, on strict reasoning, is somewhat objectionable, because the right of the party cannot be resolved till after the act and deed has been committed; but, be that as it may, our lawyers were of opinion that it was sufficient to protect the deed against the effect of obligations which were entered into with third parties.
It must be obvious, however, that all this depends upon quite different principles from those which regulate the rights between the entailer and the substitutes, on the one hand, and the institute or disponee and his representatives on the other.
This part of the case naturally leads to the history, origin, and progress of entailed settlements.
Entails in Scotland appear to proceed from three sources,
The first source of entails certainly arises from that principle which stimulates all men in wishing to preserve that property which they have acquired by their industry or their exertions, mental or bodily. Such acquisitions, where a man is sensible he will no longer be able to use them in this world, he naturally wishes to bestow them either on his family or his kindred. And this right and power appears to be sanctioned from the practice of the earliest periods, and has pervaded all countries; and the traces of it are to be found in the laws of all civilized nations from the earliest times. Hence arose the law of the twelve tables, adopted into our law, “Paterfamilias uti legasset super pecunias tutelæve suæ rei, ita jus esto.” Tab. V. This principle has taken deep root in this country, probably owing to our confined situation, and being much divided into families and clans.
The second source of entails has been unquestionably partly derived, and certainly encouraged, from our adoption of the civil law. Entails have been derived from the Roman fidei commissa; and the actio fidei commissaria is very similar to the remedy adopted in our law. In fact, there are some texts in the civil law which demonstrate that the entail, as adopted in practice with us, was nearly the same among the Romans. It is also remarkable, that in the older entails the very prohibitory clause now in question seems to be borrowed almost verbatim from Lib. 7. Cod. 4. tit. 51. See also Nov. 189.
The third source of entails seems to be derived from the feudal law, for although the word “tallia” is not to be found in the early institutions of the feudal law, or in the practice following thereupon; yet it is very plain that the feudal demission, particularly to heirs male, and with a clause de non alienando, which was so customary, is nothing but an entail; and accordingly Craig, in his Diegesis on Tailzied Succession, most emphatically expresses himself, “ hujus talliati feudi prima origo repetenda est ex mente et sensu juris feudalis,” Lib. II. Dieg. 16. s. 1. It may be noticed, that the clause de non alienando was very common in our law, and was only taken away, upon compensation, by the Act 1748; and even at this very day it is effectual when it is coupled with the jus Protimesios, as was found in the case of Sir Charles Preston against the creditors of the Earl Dundonald, 6th March 1805, and affirmed in the House of Lords. *
It is from those sources that our entails have arisen and been engrafted in the very nature and constitution of our law.
The history of entails is extremely well laid down by Craig in Lib. II. Dieg. 16, the whole of which title is well worthy of perusal; because, from it it is indubitably proved that those deeds are good and effectual according to the principles of our common law.
Lawyers have often noticed, and it has been done in the present case, that entails were considered, at a very early period, to be deeds of an odious nature; and reference is made to an expression of Craig's in the Dieg. alluded to, where he says, “Nostro tamen jure talliæ odiosæ reputantur et strictissimam interpretationem recipient.” He appears to have given them this appellation in order to draw the conclusion that they are
strictissimi juris. But there was no occasion for his doing so, because, according to the principles of the common law of Scotland, all limitations and all restraints on property are
strictissimi juris. Craig's opinion respecting entails was quite
_________________ Footnote _________________ * Mor. No. 2, Appendix. Pers. and Real.
“Itaque feuda talliata contra legem, sive regni, sive conscientiæ, qui putat, a vero meo judicio, longe abest: sed in his non statui immorari; nam tallias neque contra leges regni, neque conscientiæ esse, censuit senatus in causa Laughlani Machlaughlan contra Dominum de Lawmound.
Hæc sunt quæ contra tallias et pro talliis solent adduci ab utrius que partis patronis: Quod ad me attinet, nunquam committam, ut, in re tantâ, meam sententiam ulterius interponam quam ut illud tester, eum qui jus commune patriæ sequitur, legesque ipsas testes conscientiae suæ habeat, meo judicio non errare. Talliarum autem jus, publico totius regni consensu receptum, non solum in maribus, sed etiam in fceminis, et ut Canonistæ volunt; cœli cœlorum domino, terram autem, et jura omnia quce de terris et feudis habentur dedit filiis hominum, ut libere si in poteslale constituti sint, pro cujuscunque regni commodo de suis rebus possint disponere”
The case referred to by Craig is to be found in the Lord President Sir James Balfour's Practicks, voce Tailzie:
“Infeftment of tailzie is leasum be the law of this realme, and the geving and making thairof is not understuid to be hurtfull to the kingis concience or saul; and thairfor ony speciall infeftment of tailzie, geven to ony man be the king in his minoritie, cumis not under the generall revocatioun maid of tailzies gevin be him.”
1 Mart. 1548, L. Maklaughlan contra the Laird of Lawmound, 2 t. c. 332.
Bankton also gives precisely the same account with Craig, as to the origin and progress of our entails there, by demonstrating that that deed is founded upon the ordinary practice and law of the country: B. II. Tit. 3. sec. 135.
The decisions of the Court from the earliest times are also complete evidence of the same proposition. On such a point it is needless to multiply authorities; but there are two which deserve attention. One of these is the case of Helen Sharp against Mr. John Sharp, 14th January 1631, collected by Durie, page 553.
* This was the case of a mutual tailzie; but it is plain there is no difference in point of obligation between a mutual tailzie and any other common deed of tailzie, because the very disponing the estate to any individual under a specific condition or provision creates an onerous cause equally as if there was a mutual deed; and there appears no distinction between them. In that case, after a mutual
_________________ Footnote _________________ * Mor 4299.
At the same time, “The Lords found, that, in these cases, the contractors may sell and annalzie the lands at their pleasure, not withstanding of the contract of tailzie; for this contract, or other like contracts, extends not to prejudge the parties or any of them in any liberty which they had before the contract, except only concerning the succession to their right, wherein they having agreed upon an election of their succession, and the manner thereof, that was not alterable by them, but by consent as said is.”
This case, which is collected at considerable length, is deserving of perusal; and Lord Durie sums it up with this remarkable observation—“But it may be thought that by this liberty permitted to any of the parties to sell, they may elide the force of the contract in toto, by making alienations to a stranger, yet to the behove of another successor than that agreed upon in the tailzie; but if such fraud be intended, it is in law reparable.”
These authorities are alone sufficient to show what was early thought to be the effect and nature of such prohibitory clauses.
In the progress of time, when entails were so often disappointed by the imprudence of the possessors, and so alienated to strangers, it became an early object with proprietors to devise means to secure them against third parties; and, as already stated, it was endeavoured to protect those restraining clauses by interdiction and inhibition, the inefficacy of which was soon discovered by lawyers: and accordingly, about the time of Sir Thomas Hope, irritant and resolutive clauses were thought of for that purpose. At first, those clauses were not well distinguished from one another; for we find in the early entails the prohibitory clauses protected by an irritant clause, but no resolutive clause, and sometimes they were protected by a resolutive clause and not an irritant clause; and indeed when the decisions of the Court, even down to a late period, are perused, it will be frequently found that those two clauses are confounded together, and not properly distinguished; and indeed it is not till late times that the irritant clause has been properly applied to the annulling of the right granted, and the resolutive clause to the forfeiture of the heir. What at first was thought to be the effectual mode of creating an entail against third parties was w here the prohibitions were
This decision was acquiesced in by the country; and accordingly between that period and 1685 nineteen or twenty entails were executed on the footing and authority of that decision, besides many other entails which were not executed in terminis, so that whatever objection may be started to the opinion formed by our predecessors, still it is an opinion indicative of what was considered to be the law of Scotland; and therefore it is quite vain to maintain that no such common law right ever was sanctioned. In fact, at no period of our law, from the very primary existence of the Court, it never was for a moment doubted but that such deeds were effectual against the heirs and representatives of the parties; and the only doubt entertained was, how far they could be made effectual by irritant or resolutive clauses separately, or by irritant and resolutive clauses jointly; and there can be no doubt that latterly, even before passing the Act 1685, it was the opinion of all lawyers that where there were both irritant and resolutive clauses to protect the limitations and restraints contained in an entail, it was effectual even against creditors and singular successors.
All this seems to be put beyond doubt from what appears from Stair 2, 3, 59, and 2, 3, 59 in fine, and from the decisions which he there refers to.
So standing the import of the common law of Scotland regarding this deed called an entail, the next important question comes to be, what are the alterations which have been made on this common law by the Act 1685, c. 22? It is of great importance to ascertain the state of the law previous to this statute, because it affords a key
_________________ Footnote _________________ * Mor. 13996.
First, Is it an entire new constitution, settling the rules that govern the whole subject of tailzies, and therefore derogating from all former practice on the subject? In short, does the act authorize entails executed in a particular way only, which, if not followed, can neither be good against heirs or creditors? or,
Second, Is it merely a declaratory law, which, leaving the rights of heirs to remain as they then were, introduces regulations for the protection and security of third parties, that is, creditors and purchasers contracting with the heirs, and for preventing injury to them in such dealings?
A great deal of argument has been urged in favour of the first view as the proper interpretation of the statute; but it is clear that such a construction is neither warranted by the words of the statute, nor sanctioned by our elementary writers, nor by the decisions of the Court, nor by the opinions of our lawyers.
To suppose that the Act 1685 subverted the common law of Scotland is a most violent supposition; and to obtain that interpretation many obstacles must be overcome.
In the first place, that interpretation necessarily infers a complete alteration of the first principles of the law of Scotland, which confers on the proprietor the most complete power or dominium over his property, nisi lex vel convenlio obstat. Heirs and representatives are by that law under the most complete control of their predecessor. His will, when clear and unambiguous, must be implicitly obeyed. The undeviating rule is, Quisque est moderator et arbiter rei suœ. Now can it be supposed that the legislature of Scotland, at that period under all the influence of the feudal law, would sanction the tying up the hands of proprietors in favour of their heirs, or deny them the right of imposing restraints on those who should succeed them?
In the second place, if the legislature had any such intention as that of opposing the current of the common law, as promulgated by the decisions of the Court of Session, they would have said so in express terms. The able men who framed that statute never would have left that matter to be made a question or doubt of, but would have explicitly declared the view and intention of the legislature. Had such been the intention of those lawyers who were entrusted with the framing of the act, it was impossible that they would have expressed themselves in the manner they have done.
In the third place, it is likewise impossible to lay out of view the precise evil which was proposed hv the act to be remedied. No
In the fourth place, the whole structure of the Act of Parliament, from the beginning to the end, is adverse to that interpretation of the act. The terms of the act are extremely remarkable.
1. It sets out with a broad general declaration of what is the common law of Scotland:
“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.”
This is a substantive proposition per se, and of a declaratory nature; and as such it has been so considered.
2. The act requires the insertion of the irritant and resolutive clauses in the procuratories of resignation, charters, precepts, and instruments of seisin, and requires a particular record in which the whole shall be registered. But it is plain, that all this is required for the sake of third parties alone, because no grantee or no heir can possibly be ignorant of his own title, by which he ever must be ruled.
Whatever is contained in the infeftment constitutes a complete legal obligation, and requires nothing further.
3. The after words of the statute are quite indicative of that view; “and, being so insert, His Majesty, with advice and consent foresaid, declares the same to be real and effectual, not only against the contraveners and their heirs” (which manner of expression plainly insinuates that so far the matter is taken for granted and supposed from the nature of the thing, and then follows), “but also against their creditors, comprizers, adjudgers, and other singular successors,” which last was the only intendment of the statute.
It continues therefore a principle, and probably will to the end of the world, “That any quality in his own right must necessarily affect the possessor.” These were the sentiments of that eminent lawyer Lord Kilkerran.
4. It is lastly declared in the statute, that if the heir shall omit to repeat the provisions and irritant clauses in the rights and conveyances, he shall forfeit his right; but that the same “shall not militate against creditors and other singular successors who shall happen to have contracted bonâ fide with the person who stood infeft in the said estate without the said irritant and resolutive clauses in the body of his right.”
Now it may be asked if the estate is gone to the singular successor, and the heir contravening forfeited, what can the substitute heirs have but a remedy at common law, and a claim for reparation, and, of course, that the act itself acknowledges a right which they have, although the estate has been for ever alienated from them?
There is, therefore, nothing in the statute itself which can sanction the supposition, that it was thereby intended to alter in toto the common law of Scotland.
In the next place our authors afford no sanction to such an interpretation of the statute; and those authors are entitled to the more regard, because two of them at least were accessory to the framing of that very statute, and of course must have known what was the object and intendment of the act. On this subject may be consulted M'Kenzie, vol. ii. pp. 149,325, s. 2 and s. 3, Stair 2, 3,58, who expressly points out the origin and object of the statute; the same is likewise stated by Bankton, 2, 3,141; and in later times, just as distinctly by Mr. Erskine, iii. 8, s. 22, and s. 27, wherein he particularly observes that entails may be in many cases effectual against the heir of the granter, or against the institute who accepts of it, which cannot operate against singular successors.
Lord Kaimes may also be quoted on this part of the case, and is the more deserving of attention, as he learned the practice and science of the law under those eminent lawyers who were nearly coeval with the Act 1685. In the report of the case of Gordon of Carleton in 1753,
* his Lordship disapproves of the decision, and he adds, “I admit that the case comes not under the Act 1685, but must be governed by the common law;” thereby admitting that the Act of 1685 does not regulate all questions of tailzie. “Further, I admit that clauses qualifying a personal right, or qualifying the possessor's right, must be good against a purchaser, whether voluntary or judicial; because a purchaser cannot take more than what is in the disponer. But prohibitory and irritant clauses have no such effect as to qualify the proprietor's right, whether infeft or not infeft. It appears to me evident that by the common law an entail is not good against creditors even where the heir of
_________________ Footnote _________________ * Sei. Dec. No. 55, p. 73. Mor. 10260.
There has been lately published annotations on Lord Stair, said to be by the late Lord Elchies, where he treats the doctrine of tailzies with great perspicuity and distinctness, pointing out the effects of that class of deeds, from a simple destination to the more limited entail, with all the machinery of its prohibitory, irritant, and resolutive clauses; and in those annotations he most distinctly states and notices that provision whereby the heir shall not sell, nor dispose, nor contract debts, nor do deeds whereby the tailzie may be frustrated or irritated, although there be no irritant clause of the contravener's right; yet he says, “There seems no question in that case that the clause not to alter or contract debts would be valid and effectual against the contravener himself and his other heirs, to subject them to the reparation of the heirs of tailzies damage, by the contravention, not only from what has already been said, but likewise from the Act 1685, whereby a person may substitute heirs to himself with what conditions and provisions he pleases.” * Those expressions of Lord Elchies, one of the ablest of the lawyers and judges of his time, evidently showed that he considered that the introductory declaration of the statute is one explanatory and declaratory of the common law, and that he conceived that that common law was thereby preserved and in full operation.
In the third place, the decisions of the Court are equally satisfactory on this point, and it is quite unnecessary to quote many of them for such a purpose; it is sufficient to show what was the opinion of the Court immediately after passing the act, and in later times when those earlier decisions were corroborated by subsequent practice.
The first case which may be referred to is the famous case which occurred between the family of Hamilton and the Earl of Callander, which attracted much notice at the time, and which was decided by the Court, 27th and 28th January 1687, two years after the passing of the statute. This case is to be found in Fountainhall, vol. i. page 443.
† “The interlocutor ran upon three points, and Lord John lost them all; 1
mo, The Lords found the prohibitory clause contained in the tailzie was a sufficient ground for the next heir, or my
_________________ Footnote _________________ * Annotations on Lord Stair's Institutions, p. 114, § 5. † Mor. 15477.
The case of Willison against Callander, 26th February 1724, may be referred to on this subject. *
It seems to be unnecessary to take notice of any other decisions till later times, but particular notice may be taken of two cases in 1791, where the late Lord Justice Clerk Braxfield had an opportunity of expressing his opinion on this very point. The opinions of that excellent lawyer are the more valuable on questions of this kind, because, besides his unrivalled knowledge, he had opportunities of informing himself on these topics beyond all other men who ever preceded him, or, in all likelihood, of any who will follow after him. The cause of this was, that he was appointed to investigate the titles of those persons which were forfeited in the year 1745, with the extensive vassalage which belonged to them, under the guidance and direction of the first lawyers of the time, and, from his having discharged his duty so well on that occasion, he was appointed also to consider the claims which were made by the landed proprietors on the abolition of heritable jurisdictions. From those circumstances there is perhaps no considerable estate in Scotland the titles of which did not pass through his Lordship's hands in making this investigation. It is from those causes that he acquired such superiority over all other men in the discussion of those questions.
The first decision which required notice is that of a question which occured in 1791, Henry Pierce and Attorney against Mr. John Russell and Hugh Ross of Kerse; it does not appear to be regularly reported, but it will be found to be collected among the cases of the late Mr. Robert Bell, from 1790 to 1792, p. 166.
The question there was, whether creditors could carry off an entailed estate by special charges and adjudication, no previous steps having been taken by the heirs of entail to complete their right, and where the entail was personal, and where the institute was heir of line of the granter, and possessed without completing his title by infeftment, although, at the same time, the entail was recorded. This question naturally brought out the general principles of law
_________________ Footnote _________________ * Mor. 15369.
His Lordship had also occasion to express the same sentiments in a case decided in May 1791, M'Nair against M'Nair, * and where he again thus expressed himself:—
“By the law of Scotland a person, who is not limited in the use of his property, may execute an entail. It has been said that this power has been derived from the act of parliament; but this is a mistake: Entails were in use long before the statute, and many questions have come before this Court in which entails were sustained prior to that enactment. Many estates were entailed before that time, and the statute was intended for a different purpose altogether,—it was meant to prevent fraud. The legislature said to the gentlemen of Scotland, ‘You have, no doubt, a right to entail your estates, but as we foresee many inconveniences which must arise to creditors if this practice should become common, you must execute your entails under the forms which we now prescribe for the benefit of those with whom you transact. No statute was necessary to authorize a proprietor to entail; for that power he possessed at common law. Accordingly, if the forms and requisites of the act be not followed out, the entail is not good against creditors and purchasers. But though these forms are omitted, still the entail is effectual against the heir.”
Since that period no case can be pointed out where any lawyer has ever attempted to deliver a different opinion. From all this the conclusion seems to be quite inevitable, that the Act 1685 is nothing but a mere declaratory law restricting the former power of making entails, introducing something new for the security of creditors and purchasers, but leaving the heirs entirely on the footing they are
_________________ Footnote _________________ * Bell's Cases, 1790–91, p. 546.
The only other question that now remains,—the answer to which, indeed, is a sort of corollary from what has been already stated regarding the import of the Act 1685,—is this, Do heirs and substitutes stand in a different situation from creditors and purchasers? The distinction between them is plain and obvious; for, first, the obligation created and the right conferred is derived from their own assent and consent; and each heir and substitute, as he succeeds, declares that consent and assent by his claim and by his entry; and, secondly, all are coheirs and representatives; none have any preference in point of right over the other, except in priority of possession; the title of each to the estate is all of the same kind and nature, flowing to them successively.
It is unnecessary to enter into any detailed disquisition on this subject, as the principles are so plain, and the authorities are so express and so uniform, from 1685 down to the present time.
Our institutional writers are clear on the distinction, Stair 2, 3, 59; Bankton 2, 3,133, 135,139, and 158, in which last section he expressly states, “Where the tailie contains prohibitive clauses to contract debts, but does not bear any irritancy of the contravener's right, the debts are effectual, it being against common justice that the debtor should retain his full right, and his creditors lose their payment, as is above mentioned; but in that case the next or any other substitute, who may succeed as heir of entail to him who contravenes, has good action against him or his representatives whereby to oblige him to purge the tailied estate of the debts, as was just said of a tailie with irritant clauses not duly recorded.”
Erskine 3, 8, 23, and 27, in which last section Mr. Erskine is as explicit. “A distinction must be made in this question between the heir of entail and his creditors; for entails may be in many cases effectual against the heir of the granter, or against the institute who accepts of it, which cannot operate against singular successors. Thus, when the act declares that no unregistered entail shall be good, the meaning is not, that they shall be ineffectual against the institute or other heirs of entail who have accepted of it with all its qualities, but that they shall have no force against singular successors, for whose special security the registration of entails was directed. For as the act was made to authorize entails, no general expression in it ought to be so explained as to destroy the effect of such entails as by the common rules of law were effectual antecedently to the enactment.”
Lord Elchies, in his Annotations on Stair, explains this part of the law with great perspicuity, and supports it with referring to various
The decisions of the Court, which contain the opinions of our judges and of our lawyers, are likewise no less uniform; and in order to show that this is truly the case I have selected, from the reported cases, a series of those decisions from 1685 to 1815, in which cases will be found the opinions of the most eminent of our judges, who all concur in supporting the distinction. These cases are as follow, and some of them require attention:
27th and 28th January 1687, Earl of Callander. (Mor. 15477.)
26th February 1724, Willison against Callander. (Mor. 15869.)
17th February 1726, Hall v. Cassie. (Mor. 15373.)
2d February 1728, Lord Strathnaver against Duke of Douglas. (Mor. 15373.)
29th July 1761, Gordon Cumming of Pitburg v. Gordon. (Mor. 15513.)
24th February 1791, Gordon against M'Culloch. (Bell, 180.)
18th May 1791, M'Nair v. M'Nair. (Bell, 546.)
24th November 1795, Gibson v. Christian Kerr Reid. (Mor.15869.)
13th June 1798, M'Gill of Kemback v. Agnes Law. (Mor. 15451.)
26th February 1801, Sutherland v. Sinclair. (Mor. No. 8. App. Tailzie.)
24th January 1811, Alexander Gordon v. Gordon of Ellon. (F. C.)
28th February 1815, Earl of Wemyss v. Earl of Haddington. (F.C.)
3d March 1815, Hamilton v. M'Dowal. (F. C.)
From the above selection out of many others, it does thus appear that the opinions of our judges have been perfectly uniform on the question. And such a series of rerum judicatarum, not to be met with on any other question, should make any Court pause before venturing to alter that branch of the law, after having been so long and so repeatedly considered.
Some of those cases deserve more particular attention. The first, that of the Earl of Callander in 1687, deserves notice on account of its being determined so soon after the Act 1685, and as it must have been decided by those judges and pleaded by those lawyers who were all accessory to the framing of the statute; and it is utterly impossible the Court could have come to such a determination, if it were true, as now contended, that the Act 1685 applies to heirs as well as to singular successors.
The next important case which has been prominently brought forward upon the present occasion is that of Lord Strathnaver against the Duke of Douglas in 1728. In that case the grandson of
It seems to be admitted on the part of the pursuer that the decision was just; but it is observed that it was not because he was heir of entail, but because he was heir of line and representative of the entailer, “liable to implement all the entailer's obligations of every nature and description.” But it is obvious that this admission, that the heir of line was bound to fulfil this obligation, is fatal to the argument; because every heir of entail fully and completely represents the entailer in every obligation which he has created by or which arises out of the deed; and although the heir of entail has a claim of relief against the heirs of line and general representatives, every debt or deed upon which an action could be raised against the entailer himself must be actionable to the full value of the estate against the heir of entail.
There was no room for deciding whether a prohibition to alienate and contract debt implied a prohibition to alter the order of succession. There was no alteration of the succession attempted. The Duke of Douglas did not lay claim to the estate, but Lord Strathnaver was allowed to take it up. No doubt there is an argument maintained by the Duke, that because there is no express prohibition against altering the succession, therefore that he is not bound to disburden the estate of debts. This, however, was merely a plea thrown in by the defender, resorted to for the purpose of getting quit of the claim.
But every sort of objection to the authority of this case is completely done away by what afterwards occurred in the further discussion of this case in the House of Lords; for, upon investigation, it is now discovered that this case was brought under appeal, and where the point presently under discussion was alone considered and decided. This will be found in a report of the case published within these few days.
* The arguments of the respondent were as
_________________ Footnote _________________ * Craigie and Stewart's Reports, p. 32.
“1. Although by the Act 1685 it was declared lawful for persons to entail their estates with clauses prohibitory and resolutive, and that such entails, being duly registered, should be effectual against creditors; yet by that law the power which every person previously had of limiting and restraining his heirs with regard to one another was not impaired. The intention of the law was only to ascertain how creditors might with safety contract with a person having an entailed estate, for which end it was declared that they were not to be affected by the conditions of the entail, unless it was properly recorded; but in questions between the heirs, entails, although not registered, as they are the deeds of the ancestor, must be still as binding upon the heir as they would have been before the passing of the act.
2. The Countess of Sutherland, by this entail, in express words, obliged her heirs to resign the lands in favour of the persons, and under the conditions mentioned in the deed; and as resignation made in terms of the obligation would effectually bar any claim as heir at law, there was no occasion to add a proviso, ‘that the heirs should not possess by any other title.’ Their doing so was effectually prohibited by the condition whereby they were bound to resign under the conditions of the entail. The Earl of Forfar, being himself served heir at law to his grandmother, became thereby obliged to the performance of all obligations entered into by her, and consequently to resign in terms of the deed.
Every substitute is a creditor under this obligation, as well as the institute, whose renunciation, therefore, of the right of credit competent to himself can have no effect to bar the claims of the other heirs of entail.
3. The Earl of Forfar's estate, to which the appellant has succeeded, must clearly be liable for the present claim; otherwise it is evident that both the act of parliament, and entails made in terms of it, would avail nothing; for the heir in possession, by merely omitting to insert in the subsequent conveyances and infeftments, the prohibitive and resolutive clauses, would be at perfect liberty to charge the estate with debts to the full value of it, and to apply the money in what manner lie might think fit.
After hearing counsel, it is ordered and adjudged, &c., that the appeal be dismissed, and the interlocutors therein complained of be affirmed; and it is further ordered, that the appellant do pay to the respondent the sum of 50 l. for his costs in respect of the said appeal.
For appellant, P. Yorke Dun. Forbes and Rob. Dundas.
For respondent, C. Talbot and William Hamilton.”
This case, therefore, is perfectly decisive.
The next case deserving of notice is that of Gordon of Pitburg, in 1761, where it was expressly found that “the pursuer is laid under a prohibition of selling or alienating the estate to the prejudice of the substitute heirs of tailzie; and therefore, that, however safe an onerous purchaser might be, the pursuer, by a voluntary sale of the lands, would contravene the tailzie, and be subjected to an action of reparation and damages at the instance of the substitute heirs of tailzie.”
It has been said, on the part of the pursuer, that the whole argument in this case was confined to the point, whether the prohibitory clause imported a prohibition against selling: this, no doubt, is true; but the only reason why the eminent counsel for the heir of entail did not argue, that though there is a prohibition, a contravention of it gave no claim for reparation, was, because this was held not an arguable point.
As to the four special remarks which have been stated as to this case, in order to affect its weight as an authority, it may be noticed, as to the first, that the defenders expressly disclaim any different mode of interpretation between heirs and creditors in the third article of their answers.
Secondly, There was unquestionably in the case of Pitburg a necessity for finding that the contravener must re-invest, although he fell under the prohibition to sell; for it is forgot by the present pursuer that the case of Pitburg was an entail without an irritant clause, and therefore not good against third parties, so that the heir so prohibited might have made a valid sale; and thus it was necessary, in conformity with the express conclusions of the summons, to find what would be the effect of a sale as to the heir, just as much as it is necessary to exhaust the summons in the present case by finding the purchaser safe, but that the seller must re-invest the price. The nature of the entail of Pitburg has been quite overlooked.
Thirdly, It is held by the present pursuers that Lord President Miller overlooked one view of a tailzie, because he held another view sufficient, viz. that there was no prohibition to sell; and the recent case of Blairhall is referred to as an instance: but this is not a parallel case. The two decisions in the case of Blairhall arose out of different parts of the deed, and at the instance of different parties having different interests. The first decision ascertained that the reference to the institute was sufficiently explicit to bring him under the entail, so that the creditors who were pursuing in that case could not make their debts effectual against the estate: 27th February 1799, Syme against Ranaldson Dickson.
* Then it was afterwards
_________________ Footnote _________________ * Mor. 15473.
Fourthly, It has been said by the present pursuer that there might have been strong reasons for not urging the plea that an heir
The next decision deserving of notice is that of Gordon against M'Culloch, 24th Nov. 1791, which brings out the question in its best form. This case will be found collected by Mr. Bell in his reported eases from 1790 to 1792, p. 180; at the same time the report of the case has been compared with the printed papers which have been furnished from the collection of the late Sir Hay Campbell, and an opportunity has been thereby offered of examining his lordship's manuscript notes. The case was this: Edward M'Culloch of Ardwell executed an entail of his estate, and he disponed the same to himself and to David M'Culloch his son, nominatim, and a long series of substitutes, with certain reservations and conditions, and clauses irritant and resolutive. Although, from the form of the deed, David M'Culloch appeared to be the institute, yet, from other parts, from the power of altering, and the life-rent of the entailer, being reserved, it was doubtful how far the institute might not be considered as an heir. It so happened that the prohibitory clause was complete, and was directed against David M'Culloch, nominatim, but the irritant and resolutive clauses were directed against heirs and substitutes. If, therefore, under the entail, David M'Culloch was to be considered as the institute, he had the power, under the principles of the case of Duntreath, both to sell and to contract debt. Accordingly David M'Culloch, after possessing the estate for a number of years under the entail, attempted first to sell the estate, and thereafter to execute certain heritable bonds and
_________________ Footnote _________________ * Bryson and Chapman, 22 Jan. 1760. Mor. 15511.
The next case deserving of notice is that of Gibson against Christian Kerr Reid, 24th November 1795,
† where again are recorded the opinions both of Lord Justice Clerk Braxfield and Sir Ilay Campbell. The case there, was, whether terce could be claimed out of an entailed estate, where the entail was defective in so far as it did not irritate sales nor debts contracted contrary to the conditions of the deed. The widow of the last heir of entail claimed an aliment out of the estate, and the question, therefore, came to be tried, whether the right of terce should be considered as excluded by the deed of entail; and this led to the discussion of the foundation of entails by the common law, and the effect of the Act 1685, and as to the distinction betwixt heirs and
_________________ Footnote _________________ * Mor. 15418. † Mor. 15869.
It was said in the pleadings, that, in order to secure an estate against the claim of terce, irritant and resolutive clauses were required. But these are necessary only to save against the deeds of the proprietor, not against the acts of the law. What are you to annul in excluding the terce? I apprehend that neither irritant nor resolutive clauses are necessary for guarding against the provisions of the law; it is enough that the proprietor, in conveying his property, has qualified the right; that he has made this exclusion a condition of the entail, and this he can do in two words, by saying ‘I exclude the terce and courtesy.’”
Sir Ilay Campbell. “My opinion coincides with the second which was delivered, and with that which has been just now so well expressed. In judging of this question, I will give my opinion as I would have done in the year 1684, had I been then alive and sitting here; or as if the legislature were now to repeal the Act of 1685, for I think that act is entirely out of the question.
The history of entails was very well given in the second opinion. For a long time past the right of refusal in the superior has been circumscribed, and the proprietor has had the power of conveying his property under what conditions he pleases; and the only question that ever has occurred has turned on the power of excluding creditors or purchasers; but it never has been doubted, either before or since the Act 1685, that in questions with heirs the disponer might add what conditions he chose.
(The case of Stormont stated.) In that case the opinion was, that the limitations appearing on the records, they were therefore effectual against creditors and third parties; and thus stood the law down to the act 1685. By that act a double registration of the conditions and limitations is required; the object of the act being the safety of creditors, without any view to restrict the powers of proprietors further than the safety of creditors rendered it necessary; and this was to be attained by the double registration of the entail, and to put both creditors and purchasers on their guard, and by declaring that without that double registration the entail should not be binding.”
Another similar case occurred a few years after, 13th June 1798, M'Gill of Kemback against Agnes Law, * where an entail excluded the terce, and prohibited the heir in possession from giving a higher annuity to the widow than a certain proportion of the rent; and it was found that she was excluded from the terce, although the entail was otherways ineffectual against singular successors. This observation was made by the Court:
“The Court, on advising memorials, considered that case (Gibson against Kerr Reid) to be decisive of the present. In the former case it was observed, the entail, though recorded, was ineffectual against creditors, from wanting an irritant clause. But irritant and resolutive clauses, and consequently registration, are unnecessary to make entails effectual intra familiam of the substitutes.”
The next case deserving of notice is that of Sutherland, 26 February 1801,
† which is of considerable importance. It has been said, on the part of the pursuer, that the case related to another point altogether, and that there was not any argument on what occurs in the present case. But it may be observed, that in making this statement the Session Papers in the case of Sutherland cannot certainly have been examined. The action in that case was brought against the representatives of the heir of entail who, having a power to sell for the entailer's debts, sold and paid off the debts both of himself and other prior heirs. The entail contained a prohibition against contracting debts, and an irritancy of the heir's right on contravention, but no irritancy of the debts. Debts were contracted, and the entailed estate sold by the creditors. The next heir, stating it “as a clear point that an heir of entail has a claim against the representatives or separate estates of preceding heirs for relief of the damage he has sustained through the entailed estate being either utterly evicted or improperly burdened,” brought an action to have it found that he was a creditor to the extent of the price at which
_________________ Footnote _________________ * Mor. 15451. † Mor. No. 8, App. Tailzie.
The defenders maintained on their part, as to this plea, “that an action of this nature founded upon a clause merely prohibitory is somewhat new and uncommon, and particularly improper in the present instance, where the sale of the estate of Pulrossie was chiefly occasioned by the debts of the original entailer affecting it. But what the defenders are more particularly to direct your attention to is, that the prohibitory clause does not restrain an alteration of the succession,”&c.
The other defender Baillie seemed to admit the conclusion if the prohibition applied to contracting debt; and contended that he was only liable in valorem; in support of which he referred to the cases Diet. v. 4. p. 45.
The reclaiming petition for Sinclair's representatives argues the case fully and ably under these two heads:—
1. The pursuer had no title to insist as heir of entail.
2. The heir in possession did not contravene to the effect of rendering his representatives liable in damages to the subsequent heirs. The argument under this last head was,
1. Because the prohibition applied “to the heirs male and of tailzie,” the party contracting being heir of tailzie, but not heir male.
2. Because it was within the power of the heirs to alter the order of succession; and “what he might have done as to the estate itself, he had power also to do with equal validity and effect, as to the reversion of the price, which came to be a surrogatum in place of the estate.”
Lastly, the petitioners submit, that in order to entitle an heir of entail, in such a situation as the pursuer, to maintain an action of damages against a prior heir, he must be able to show that he himself has conformed precisely to every thing which the entail required of him.
Further, the petitioner must not omit to remark, that the entail gives no countenance to the petitioner s libel as laid. The pursuer
Here, too, the claim of reparation, if a prohibition was contravened by the heir, was considered too clear to be questioned.
The next case deserving of notice is that of Gordon of Ellon, 24th January 1811, and in which will be found the opinion of the late Lord President Blair. The question there was, whether an heir of entail in possession was entitled to pull down the mansion-house of the entailed estate for the purpose of selling the materials thereof? The entail contained expressly a disposition to “the town and fortalice of Ardgight, now called Ellon Castle, yards and orchyards thereof.” The prohibitory clause was in the following terms:
“That it shall not be in the power of the said William Gordon, &c. to sell, alienate, or impignorate, or dispone the lands, baronies, and estates above mentioned, or any part thereof, either irredeemably or under reversion, or to burden the same, in whole or in part, with debts or sums of money, infeftments of annual rent, or with any other security, servitude, or burden whatever.”
Upon this occasion the Lord President observed, “The general principle of the law of Scotland on which the petitioner founds is, that restrictions on the use of property are not to be extended by implication,—a principle which never has been and never will be altered. But although restrictions are not to be created or extended by implication or presumed will, de casu in casum, yet where limitations exist, these are to be construed according to the usual and legal import of the words. Upon this ground a lease for more than the usual length was construed as coming under a prohibition to alienate: Duke of Queensbury against Earl of Wemyss, 17th November 1807.”
The two other decisions which have been selected, 28th February 1815, Earl of Wemyss against Earl of Haddington, and 3d March 1815, Hamilton against M'Dowal, I referto for the purpose of bringing under notice the opinion of that eminent judge the late Lord Meadowbank, whose opinions on feudal questions are entitled to the highest respect. In the report of this latter case a mistake has been fallen into by the reporter, as if his Lordship had been of opinion that the Act 1685 made the deed of entail now entirely a statutory deed; and the reporter also falls most undoubtedly into a mistake, as making his Lordship state that the late Lord President Miller and the late Lord Justice Clerk Braxfield were of opinion that entails stood on no other foundation than the statute 1685. This is most unquestionably a total mistake. What his Lordship meant to convey was this,
“Elliot against Elliot, 19 May 1803.
Q.—Defective, irritant, and resolutive clause in tailzie?
Suspend letters in suspension, and sustain defences in declarator—Methven, Cullen, and myself, valde repugnantibus—Rest of court held that Sir William is bound by the entail as it is—all, however, agree that Sir William would be liable in damages were he successful.”
From this it is perfectly evident what his Lordship's meaning was in the case of Hamilton,—that it was merely so far as regarded creditors and purchasers the Act 1685 was to be considered as a pure statutory regulation; and of course that the reporter has stated that matter too broadly; at least it should have contained the exception, which was his Lordship's opinion on the subject.
From examining those decisions for a period of no less than a hundred and thirty years, it appears to be quite clear that the law of Scotland always has acknowledged, and does still acknowledge, a distinction between the claims of heirs and those of singular successors; and that it is impossible to alter those decisions of the court without a total disregard of the original principles of the law of Scotland.
It is perhaps improper to resort to the opinions of living authors; and it is to be understood that they are not referred to as authority. But still they may be resorted to as evidence demonstrating the existing understanding of the profession on the subject, and that that understanding does still exist at the time when they are giving their works to the public. Thus, Mr. George Joseph Bell, in his valuable Commentary on the Laws of Scotland relative to Mercantile Jurisprudence, takes notice of the distinction betwixt heirs of entail and the creditors. Vol. i. p. 45, 46, edition 1816. Also Mr. Sandford, in his late Treatise on Entails, published in 1822, observes, p. 54, “These decisions appear to be sufficient to establish the right of the substitutes to demand fulfilment of the personal obligation in their favour, or reparation for its breach. But as the obligation ie not real, and therefore does not give the substitutes
In considering the effect and purview of the statute 1685, it appears that those who maintain that that statute has made a complete revolution in our law, and has destroyed all entails, except those which are executed in terminis of that statute, have not attended to the consequences which would ensue to the other principles of our law. For it is to be remembered that entails are executed and are effectual relative to subjects which never can be brought under the operation of the Act 1685; and of course, if it were held that the common law upon that subject were annihilated, all these deeds which have been hitherto held to be effectual from time immemorial must also be considered as entirely nugatory, even in a question inter hœredes. By the law of Scotland leases may be tailzied; also money and moveables of all descriptions, such as books, statues, pictures, plate.
Thus Bankton, 2, 3,151, states “moveables may likewise be tailzied, so that they cannot thereafter be gratuitously alienated in prejudice of the substitute. But still such bonds of this last kind may be affected by the institute's debts; and purchasers of such moveables bonâ fide are secure, in respect of the free commerce of them.”
The Court was clearly of this opinion respecting the famous jewel which was given by Gustavus Adolphus to the celebrated General Leslie. 27th February 1683, Earl of Leven v. Montgomery. * See also Sandford, page 153.
But what, of all, is decisive upon this question, is the determination both of this Court and of the House of Lords upon the effect of entails, which are allowed to remain personal deeds, that is to say, on which no infeftment has followed, and which have not been recorded. If the common law was entirely annihilated and subverted, and nothing but a statutory regulation, equally effectual against heirs and creditors, it would be totally absurd to maintain that the entail in its most incomplete state could be effectual; and any little omission of the entail in carrying it into execution would render it totally inefficient. And yet both this Court and the House of Lords have uniformly found that an entail which remains personal is effectual, not only against heirs, but also against creditors and singular successors; which cannot possibly be
_________________ Footnote _________________ * Mor. 3217.
So that, by taking all those matters into consideration, it appears to be quite impossible to maintain that the Act 1685 alone gave effect to entails in Scotland. It was merely a regulation restraining the effect of entails against creditors and singular successors, for their security and protection.
In this question it is of great importance to ascertain the original foundation on which entails depend, and the true import of the Act 1685; because if the common law of Scotland is admitted to have its proper and due operation, then the door is opened to all the analogical argument which has been so well adverted to by the counsel for the defenders. It then becomes proper and competent to refer, after the obligation is truly established, to all the doctrine arising from contracts of marriage; and also to refer to those principles of our law which are to be found under the heads of “Personal and Real,” and “Approbate and Reprobate,” from all which most apposite illustrations may be derived.
It is now only necessary to advert to some of the special pleas on the part of the pursuer.
The first is, that no inhibition is now allowed upon an entail; and that as all obligations may be made the foundation of that diligence, it is to be inferred that in the case of an entail, where there are no irritant or resolutive clauses affecting the prohibition, there is no proper obligation created.
Secondly, it is urged, that the plea of the defenders would be productive of great inconvenience, and in some respects entirely nugatory.
Thirdly, that where there is an irritancy in the entail, no damages can be claimed.
With respect to the first, the argument, as put on the part of the pursuer, is extremely imposing; but on examination it is not founded on correct principles, and the premises are wrong from which the conclusion is drawn.
In considering this question, upon which so much argument has been bestowed, it is proper to attend, first, to the nature of the diligence of inhibition; and, secondly, to the nature of the right of heirs and substitutes of entail.
As to the nature of the diligence of inhibition, it is to be observed, first, that originally inhibition was not allowed nisi causâ cognitâ, and this in all cases whatever. Even at this day it is issuable de jure only on present liquid obligations.
Secondly, inhibition is a mere personal diligence or interdiction, and has no effect whatever on the right which is vested in the
Thirdly, inhibition is applicable to acquirenda as well as acquisita. The diligence falls with the death of the debtor; and when used by a substitute heir of entail must also fall by his death, when his interest is gone.
In the fourth place, it is not true, as alleged by the pursuer, that inhibition is allowed on all obligations. The pursuer assumes as an universal affirmative what is only a particular affirmative, and in that respect one of his premises is totally wrong; for instance, inhibition is not allowed on the obligations contained in marriage contracts, where the children take as heirs; it is not allowed in pure conditional obligations, unless under particular circumstances; and, what is more to the purpose, and more applicable to the present case, inhibition is not allowed upon obligations of warrandice.
In the fifth place, an inhibition can only be used by a substitute against an heir, when that heir actually succeeds, arid takes upon himself the obligations in the entail; and as the diligence is only personal, it never can protect against mere debts which have been contracted by the heir previous to the succession to the entailed estate, so that in such cases the diligence is imperfect to the end supposed by the pursuer.
Again, as to the right of heirs substituted in the entail, it may be observed that, to allow such a diligence would be productive of great hardship and great inconvenience; and, as the law now stands since 1685, would be completely adverse to the principles of that statute.
In the first place, to allow an inhibition against an heir of entail succeeding would be extremely unjust, as it proceeds on the idea that the heir of entail in possession, in place of complying with the will of the granter, and the intention of his benefactor, means to commit a wrong and a fraud against him; whereas the contrary is the presumption of law, that he will comply with the will of the donor, and that he will fulfil the obligations to which he has assented.
In the second place, nothing could be a greater hardship against an heir of entail, as the inhibition executed against him would affect all his unentailed property, whether acquired at the time of his accession, or acquired during any time of his life, during his possession of the entailed estate, so that he must be under the necessity upon every occasion of finding caution to the Court, under some limited restriction as to caution.
In the third place, the diligence of inhibition would not increase the extent of the
jus crediti of the substitutes in the smallest
From this it is evident, that after the Act 1685 it would in general be improper to allow the diligence of inhibition to remain as a mode of protecting the personal obligation contained in the prohibitory clause; for if that had been the case, then it would have been the Court authorizing a mode of entail which the Act 1685 has expressed in so many words never could be effectual against third parties unless certain means were used; so that the diligence of inhibition would impose nothing but hardship upon the heirs of entail, because it is not effectual against third parties; and the obligation against heirs never required the aid or assistance of such a preventive remedy.
The whole of this doctrine will be found extremely well explained in a case decided by the Court, 3d June 1748, Gordon v. Sutherland (Kilkerran p. 197.) * The case is well worthy of perusal. The Court were much difficulted on the point, particularly as it had been the practice to protect of old the prohibitory clause by inhibition; and accordingly the Court varied in their judgment; but at last it was correctly decided, that that diligence could not have effect against singular successors. The opinion expressed by Lord Kilkerran is of importance. “Such of the Lords as remained of opinion for the former judgment, were not satisfied why even an obligation to transmit a succession, with a clause of warrandice, may not, by the force of an inhibition upon it, be rendered of the same effect against all and sundry the lieges as it is against the granter. It must at the same time be owned, that the last judgment is more agreeable to the notion that every body has had, and which even the Court has formerly entertained, ( vide the decision observed by Dirleton, † 24th January 1677, Grahame contra Home,) and is the more expedient of the two, as the giving such force to the inhibition would be in effect to make a common contract of marriage, with an inhibition on it, equal to an entail.
N. B. Both the above judgments were upon an appeal to the House of Peers affirmed on the 7th March 1751.”
_________________ Footnote _________________
* Mor. 4398.
† Dirleton, p. 214. Mor. 12887.
In the fourth place, the pursuer seems to be mistaken also as to the effect of inhibition; for he seems to suppose that if this diligence be allowed it would afford a complete protection to the deed of entail, and that it would demonstrate that a proper obligation does exist, as thereby the estate would be protected. But in this the pursuer is under a complete misapprehension. The diligence of inhibition would not affect the property; it is merely a personal diligence, and of course only affords a ground of reduction if any thing be done to contravene the diligence; but it affords no claim against the singular successor to restore the subject, which he has acquired contrary to the prohibition. Thus, if a purchaser acquires land, or other heritage, in the face of an inhibition, and if a reduction is brought of that conveyance, he is entitled by law to maintain the possession of the subject so acquired, provided the price is still in medio, in his hand, and is the complete value of the subject at the time of the challenge: in that case the subject cannot be reclaimed, and the law holds the price to be a surrogatum for the estate. This will be found decided, 1st February 1739, Carlyle v. Mathison's creditors, Kilkerran, voce Inhibition, No. 1. * The diligence and effect of inhibition will also be found extremely well explained in a case decided by the Court, 19th July 1777, Monro v. Gordon's creditors. †
The result of those authorities unquestionably is, that the pursuer is under a total mistake when he contends that, because no inhibition is allowed upon the prohibitory clause, that therefore no obligation exists. That is not the principle on which the inhibition is refused.
But moreover, and in the last place, the pursuer forgets that inhibition is only refused so far as regards the sale of the entailed lands; and it is to such a case that the decisions apply. But when an action of damages is competent, the heir of entail has taken into his possession funds which have come into his hands as a surrogatum for the lands; and where the heir has separate funds of his own, every diligence of the law is competent against him—inhibition as well as personal diligence.
In the second place, it has been urged by the pursuer, that the claim of the defenders would be productive of great inconvenience, and give rise to constant litigation; for as the power to sell is still inherent in the heir of entail, there would be a constant succession of selling and reinvesting. As to this it may be observed, that this is no good answer in a court of justice to any person insisting on a legal right. It is to maintain that the heir of entail is to have a right, because he has it in his power to commit the injury another time; or to justify one wrong by another wrong. But if an obligation
_________________ Footnote _________________ * Mor. 6971. † Mor. No. 1. App. Inhibition.
As to the trouble of reinvesting, practically, no difficulty can exist; and many instances of this can be given in our law. As has been already noticed, tailzies are not confined to land, but may be extended to other subjects. Both personal and moveable bonds may be tailzied, and on payment of such debts such payments may be funded in such a manner as to prevent the heir of entail in possession from squandering the money: and all this is quite consistent with the forms and principles of the law of Scotland. In this way tailzied money may be taken up and reinvested without the smallest trouble.
In like manner property and money secured to wives, exclusive of the administration and right to the husband, may, when changed, be reinvested, and during the course of a long life have frequent occasion to be so; and all this is done without the smallest inconvenience.
Also, of late years no inconvenience has been felt in reinvesting the money arising from entailed estates, which have been assumed by the public for public purposes; such as roads, canals, and public buildings.
But the best example of all which can be given of the practical exercise of this power is that which regards teinds, which are frequently entailed along with the lands; and many valuable entailed properties contain right to the teinds of lands belonging to third parties, which are both extensive and valuable: and as teinds were and commonly are feudalized, they are the proper subject of the Act 1685. Now, it is well known that by the Act 1633, c. 17, heritors of land are entitled to purchase their teinds from the titular at so many years purchase, according to circumstances. When the heritor takes the benefit of this act, which he is entitled to do at this day, those teinds are withdrawn from the entail, and nothing remains but the price. This is an Act of Parliament, it will be observed, that existed even prior to the acknowledgment of entails under the common law in the case of Annandale, and prior to the Act 1685, and of
The same question came to be considered in a case of considerable importance in point of value, Trustees of Douglas Duke of Hamilton v. Archibald Duke of Hamilton, 26th June 1818, where the Second Division of the Court found precisely as in the preceding cases.
It will be observed that the heir of entail had much to say in his favour, because, in that case, there was no voluntary sale on his part, and therefore he had not contravened the terms of the entail; and as the entailer had made no provision whatever for that change of circumstances, he certainly had a right to maintain, that it was extending the limitations and provisions of the entail by implication, to compel him to make a new entail of that subject which had been altered by the law itself. The Court, however, justly paid no regard to such argument; and accordingly, on the principles of common law, found as has been above mentioned.
Even this very case of the teinds is an argument against the pursuer, demonstrating that it is impossible to maintain that the Act 1685 totally subverted the common law of Scotland; for it was only on the principles of the common law that the Court had any power whatsoever to order the reinvestment of the price of those teinds.
Upon this article it may be, in the last place, observed, that although the heir of entail may have the power of selling the estate repeatedly, yet even by the common law of Scotland there is a limitation on the exercise of this power, and on the exercise of the power of every proprietor, however unlimited; for whenever a persou has a right of any description, the law of Scotland will restrain the proprietor from exercising his powers if done with the mere purpose of distressing others. Now, if an heir of entail were maliciously,
An idea has also prevailed, that the right of an heir insisting for reparation, in the case of a contravention of a prohibitory clause, would be rendered nugatory by a competition with onerous creditors. This, however, is jus tertii to the heir contravening, whose obligation to fulfil remains active, and he cannot shelter himself under the supposed existence of preferable rights. The same arguments equally apply to a case where a person has granted double rights. But the proposition is founded entirely upon mistake. The heir of entail insisting against the contravening heir will be preferred according to his diligence; and if debts and adjudications are guarded against by the irritant and resolutive clauses, no creditor can properly compete, if the heir's diligence is preferable per se.
In the third place, it has been observed by the pursuer that there can be no claim of damages under an entail where there is a proper irritancy. In the reasoning on this question of damages, there appears to be a good deal of inaccuracy, and a great want of precision. The word damage has been used in our law precisely in the same way as the word damnum in the civil law; and therefore the claim of damage may arise, not only from quasi delinquency, but from contracts and quasi contracts, and includes under it simple reparation, or what is called in the civil law
omne quod abest a patrimonio. The doctrine of damage is well explained by Lord Stair in Book i. tit. 9; therefore, when it is maintained that an heir of entail is liable in damages, in most cases it is intended to convey the claim merely of reparation, although there may be some instances where the heir of entail may be liable to the utmost extent in the name of damages. When the proper meaning is, therefore, attached to the word damage, there can be no doubt about the matter; and, therefore, to a certain extent, the pursuer is right in his proposition, that where there is an irritancy fixed by the party, there can be no claim of damages; because if the subject itself be restored to the party, it is impossible that the value also can be claimed; but, in this respect, there is no peculiarity in the deed of entail, for it is nothing else but the common law of Scotland in certain cases. This may be exemplified in the case of feus, which either contain an irritancy
in gremio or by the common law. If two years' feu-duty be allowed to run into the third, they may be forfeited by declarator; and if they are so, no damages can be claimed from the vassal; and so much so, that the superior cannot claim from him the by-gone feu-duties, on the nonpayment of which his right has been forfeited. This will be found
The same takes place in leases. If a proprietor brings a forfeiture of the lease, either at common law; or in virtue of any prohibition contained in the lease; or on the ground of the act of sederunt 1756; and in consequence thereof irritates the right, no claim of damages lies against the tenant for breach of contract. The proprietor gets his subject, and is liberated from his obligation towards the tenant. The same is also the rule where leases are prohibited to be assigned. The proprietor has the power of declaring the assignation null, and on obtaining the decree the right reverts to the tenant, and will perpetually revert to him, although he should a hundred times contravene his obligation; but no damages can be claimed by the proprietor, and the only mode which the proprietor has to prevent a repetition of such conveyances or sales, if they may be so called, is to declare that if the tenant shall assign, the possession shall, on the contravention being declared, return to the proprietor; and to be sure, in that event, the proprietor will obtain complete possession, but he can claim no damages.
From all this it will be seen that there is no peculiarity in the case of entail, as has been supposed by the pursuer.
The pursuer has urged very strongly that the very question which is now under discussion was fully considered in the Court of the last resort in the question of the Executors of the Duke of Queensberry against the heirs of entail. It is apprehended that there must be some mistake in this. In that branch of the case which was under consideration of the First Division of the Court, it is no doubt true that by the interlocutor there pronounced the heirs of entail were found liable in damages; but the very next day after that judgment was pronounced it was observed that the judgment was somewhat inaccurately expressed, or rather that the finding of damages was somewhat premature. A note of that circumstance was taken at the time, whenever it was discovered, for the purpose of calling the attention of the Court to it when the case should be again submitted to consideration; and in all probability the matter would have been put on a different footing, but it so happened that the parties thought fit immediately to carry to appeal that case, and the Court had no opportunity of considering the point.
But the reversal of that judgment seems to afford no grounds whatever for maintaining that the present question was at all considered in the view as urged by the pursuer, which must be obvious from considering the remit which was made of the case that is now
_________________ Footnote _________________ * Mor. 15095.
The varying signification of the word damage has certainly occasioned some inaccuracy in the reasoning on this subject. By the law of Scotland damnum generaliter significat omnem diminutionem patrimonii; and, therefore, it is even very possible for a claim of damages to exist in that sense concomitant with an irritancy and forfeiture. In that view,—and it could be only in that view that the House of Lords reserved the question of grassum; in any other view the reservation was inconsistent and improper—many analogous cases may be put; for instance, that of the case of Gordon of Ellon, or similar cases, where the mansion house is one of the special objects of the prohibitory clause, and where it is fenced and protected by the irritant and resolutive clauses. It is believed that some instances of such entails may be adduced. Now, suppose that an heir of entail should disregard all these restraints, and should run the risk of attempting to pull down the mansion-house, and should dispose of the stones, wood, and lead of which it may be composed; there can be no question that when these materials are put into the shape of moveables by the heir, every purchaser of the wood, the stone, and the lead, will be safe, and these loose materials can be no longer subject to the operation of the entail, and a rei vindicatio will not be competent. But it is no less plain that as a prohibition has been contravened, and the irritant and resolutive clauses applicable, forfeiture must take place just as much as forfeiture must follow in the case of contracting debts, where that is guarded against, whether it be a small or a large sum. But suppose forfeiture does ensue, the heir of entail can on no principle put into his own pocket the price of those stones, wood, and lead, which are part of the entailed estate and which he sold contrary to his obligation and contract. He cannot benefit by such wrong, or take what does not belong to him. As to the remainder of the estate, he forfeits the title to enjoy it, and he suffers the punishment to which he consented when he accepted of the estate.
From these circumstances it must be evident, that reparation is in no respect inconsistent either with annulling the right, or the forfeiture of the heir.
In the fourth place, it has been observed that the plea of the
It may be further noticed, that however proper it may be now to adhere to what was fixed in the case of Duntreath, yet it is perfectly clear, on more mature deliberation, that it is a case which ought not to be extended. It is much to be lamented that when that case was decided a proper examination had not been made into the previous decided cases determined by the Court of Session; and it is still more to be lamented that a more correct examination, or rather that the examination had not been made into the entails which had been executed, and to be found in the record; and it is likely, had those authorities, and the terms of those entails been exhibited, a different result would have taken place. It is no doubt true that many eminent judges have approved of that decision; but it is also no less true that lawyers just as eminent have been of a contrary opinion. In evidence of this, better authority cannot be resorted to than the opinion of the late Lord Chancellor Thurlow, in the case of Tillicoultry, * which was to this effect, “Though it might be unnecessary to trouble your Lordships with any observations on this case, as in my opinion the judgment ought to be affirmed, I deem it expedient, however, to state the grounds which weigh with my mind in proposing the judgment I am to offer to the House.
The single question which has been agitated arises upon the effect of the prohibitory, irritant, and resolutive clauses of an entail, and whether these prevented the estate from being disposed of. In fact the estate has been sold, but it was the purpose of the action to establish the validity of the sale.” Here his Lordship read the prohibitory, irritant, and resolutive clauses of the entail. “The prohibitory clause here is undoubtedly expressed broadly enough; no argument has been raised on the irritant clause,
_________________ Footnote _________________ *
Bruce v. Bruce, 15 Jan. 1799. Mor. 15539. The quotation is taken from a copy of Lord Thurlow's opinion, transmitted by his lordship to the late Mr. James Chalmers, solicitor, London, and now among the papers of Mr. Bruce of Arnot.
It is now contended, from the authority of decided cases, that selling the estate is not a breach of the resolutive clause. It is truly said, that a prohibitory clause by itself will not do,—that an irritant clause will not do,—and that if the resolutive clause be not broad enough we cannot go to the meaning and intent of the parties.
What reasons induced the Court to go so far as they have done in these decided cases I am at a loss to know. The whole class of cases which I allude to appear to me to be founded on some political notions of the judges, that the law of the land was of a mischievous tendency, and that by the judicial proceedings they ought to meet what they deemed the bad policy of the law.
I own that the judgments given in the case of Duntreath and other cases relative to entails appear to me to shock every principle of common sense. In this country also a mode was devised by the judges of getting rid of entails by fictitious recoveries. It would have been more principled and wholesome if the judges in both countries had applied to the legislature, when they deemed the law required amendment, instead of thus repealing it by judgments in Courts. It is too late now to enter into these cases; the security of much landed property must lead your Lordships necessarily to act on the principles recognised by the Courts, and repeatedly in your Lordships' house.
The question at present before your Lordships distinctly comes to this point: Is the entail so conceived that the right of the heir shall immediately resolve on his selling the estate? Looking at the deed, no person can say that he does not in his conscience believe that a sale was intended to be included in the resolutive clause. But the purpose has been rendered of no effect, by cramming the clause with a long string of unnecessary words, and entering into a detail where every thing meant was not specially mentioned.
If the resolutive clause had stopped in its enumeration after the words, ‘contravene’ and ‘incur the said clauses irritant or any of them,’ there would have been no doubt in the present case; but it goes on to specify by doing any of the following acts, relative to the name and arms, marrying certain persons, or not accepting the benefit of the entail. It then changes the phrase, ‘or who shall break or innovate, &c., or do any act by which the estate may be
The prohibitory clause here treats the words breaking the entail and affecting the estate as different and distinct from selling, annalzieing, and disposing of it. When these ‘and break and affect’ occur again in the resolutive clause, we must take them in the same way as in the prohibitory clause.
But the matter does not rest here. According to the decided cases you cannot express or include a sale by these words. We are therefore reduced to this, that while we have a full conviction on our minds that the granter of the deed meant to prevent a sale, yet we cannot act upon this, because the Court of Session has with your consent, perhaps with your directions, decided many cases another way; and the security of real estates in Scotland would be cut down if your lordships were now to adopt the doctrine that a resolutive clause is not good in such general words.
Therefore when I move your Lordships to reverse the interlocutors complained of, I shall give my vote as not content, protesting that as a judge I never could have concurred in the former decisions originally when they were pronounced.”
Upon which the interlocutors were affirmed.
It is believed that the late Lord Loughborough also entertained the same sentiments.
In the fifth place, it has been noticed, and no doubt might make an impression at first sight, that it is remarkable that so few instances have occurred of a claim similar to the defender's, particularly as it is not to be supposed but instances must have occurred which might have induced heirs of entail to bring such claims before this period. This, however, can be easily explained; indeed in some of the older cases, in looking through the papers, the thing has been noticed, and the explanation which has been there given is to this effect:—that it has sometimes occurred that those who had the most immediate interest to bring a challenge of the land were so nearly connected with the contravener that they have rather chosen to avoid all dispute with him; and remoter heirs, having so little interest, and no prospect of benefit, have not thought it worth their while. It has also happened that those who had any inclination to make a claim of the kind have allowed their rights to lie over too long, and in that way the creditors have obtained the advantage over them, and the heir of entail deprived of the means of doing justice to the heirs.
It may further be noticed, that it may be doubted if the observation is founded in fact; because if the question has occurred with respect to the prohibition regarding debts, and the Court have decided as to the rights of heirs of entail where the contracting of debt has not been fenced by irritant and resolutive clauses, and yet have made them effectual against the heir of entail, those cases are just as much directly in point as that which is now under consideration. The same principles of law are applicable to both; for the heir of entail would be no more bound to relieve the entailed estate of those debts than, according to the present argument, he would not be bound to reinvest. Now, that point as to the debts has been decided. Since the decision of the case of Tillicoultry the attention of heirs of entail has been more directed to this point; and as to the cases which have occurred posterior thereto, all of them can be explained without resorting to the inference, that it was from an understanding of the parties of a deficiency in point of right.
The first of these which occurred in later times was one which respected the sale of the estate of Bonnington, which was defective in the same manner with that of Tillicoultry and Ascog. Mr. Cunningham of Bonnington sold that estate before the next heir of entail, Mr. Scott Moncrieff, knew of his intention. The next heir immediately raised an action in the same terms with the present, and arrested the price in the hands of the supposed purchaser. This led to an arrangement, and the next heir of entail agreed to accept of 10,000 l. in lieu of the estate, and which has been settled on the same series of heirs with the entail.
With respect to Tillicoultry the heirs of entail did not sufficiently attend to their interest; and in the course of some years the heir in possession came to be in such circumstances as to render the right unavailing. But it has so happened that he is now placed in a different situation, and the heirs of entail of Tillicoultry are now demanding fulfilment of their right, and which is a case now in dependence before the Second Division. *
With respect to the case of West Shiel, it is also to be noticed that the heirs of entail did not give up the claim to which they had a right, and had no intention of doing so; but it so happened that immediately after the remit from the House of Lords circumstances occurred which rendered it improper, and indeed unnecessary, for those heirs of entail to proceed further in their suit. The next heir of entail who was at first immediately interested died, and then there emerged immediately after that a series of heirs who deprived those who had originally stepped forward of any prospect of benefiting
_________________ Footnote _________________ * Bruce, 21 June 1827.
The last case which was decided in the First Division of the Court, Earl of Breadalbane against General Campbell of Monziel, stands on the judgment of the Court of Session, who found that the heir of entail was bound to reinvest. That case has not been further insisted in, and upon the following grounds,—the friendship and intimacy subsisting between the two parties; and next, there have emerged also heirs of entail, which renders the question of very little importance.
Hence those matters which appear to make an impression with respect to the general understanding of the non-existence of those claims, depend on no solid foundation.
It has likewise been urged, that to give effect to prohibitory clauses, is an encroachment on the free use of property. But this argument is totally inconsistent with that free exercise of will permitted by the law of Scotland to all proprietors. The plea of the defender consists in the maintenance and preservation of that free liberty and power of disposal; whereas, on the other hand, the argument of the pursuer is founded on the denial and destruction of the free and uncontrolled exercise of that right. The pursuer denies to his benefactors and predecessors what he wishes to assume to himself as his sole right and privilege.
Lastly, there is one view of the question to which I have never seen any satisfactory answer.
It has been admitted, both in the papers and in the pleadings on the part of the pursuer, that the prohibition in this entail of Ascog creates, at least, such an obligation that it enables and bestows a right on the substitute heirs of entail to challenge all gratuitous and fraudulent deeds. It is admitted that such are struck at by the Act 1621, c. 18., which is, in fact, admitting that such prohibition is entitled to the protection of the common law; for the Act 1621 is nothing but a declaration of the common law, and it contains no reference, less or more, to deeds of entail, and indeed could not possibly do so. It is remarkable that this Act 1621 declares, that if the estate gets into the hands of a
bonâ fide third party, it cannot be reclaimed, but, notwithstanding, reparation shall be due from the party contravening, or acting contrary to the enactment of that statute. Now, this being an admission of the party, that any gratuitous and fraudulent alienation entitles the heirs of entail to reparation, it does not appear what difference there can be in the present case. It is of no consequence from what motive the heir in possession is induced to contravene the prohibition. It is of no
Upon the whole of these grounds, I am humbly of opinion that the heir of entail of Ascog, if he sells the estate, is bound in reparation to the substitute heirs; and that the Court ought to find accordingly.