United Kingdom House of Lords Decisions

The Lord Ordinary (Mackenzie), on the 4th of February 1823, sustained the defences, assoilzied the defenders, and decerned. After a variety of procedure, the Court, on the 12th of February 1828, adhered to this interlocutor generally, but, remitted to the Lord Ordinary to hear parties as to the small portions of the estate, embraced within the titles, by which votes were created in favour of the pursuer and his father. ¹ No further procedure took place in that action; and the pursuer then raised another action of declarator, for having it found, that he was entitled to hold the estate of Craigiehall in fee simple, or at least subject to no valid prohibition against altering the order of succession.

The Lord Ordinary reported the question on these cases to their Lordships of the First Division, who, in respect of the importance and difficulty of the question, resolved to take the opinion of the other Judges. With this view the following queries were laid before their Lordships:—

“First, Whether, under the circumstances stated on the record, there is a valid subsisting entail of the estate of Craigiehall, whereby the pursuer of the present action, Mr. Hope Vere, is effectually prohibited from altering the order of succession, contracting debt, and selling the said estate?

Secondly and separately, Whether, in so far as regards the lands of Upper Craigie and others, of which a Crown charter was passed in 1758, upon the resignation of Charles Hope Weir, Esquire, in favour of himself in life-rent, and William Hope Weir his son in fee, there is a valid subsisting entail whereby the pursuer is effectually prohibited from altering the

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¹ 6 S. D. 517.

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order of succession, contracting debts, and selling the said lands of Upper Craigie?”

The cause being afterwards heard in presence of the whole Court, an opinion in writing was given in by the Lords of the Second Division and Permanent Lords Ordinary ¹ to the following effect:

“The summons in this action bears, that the pursuer is entitled to have it found and declared, “that he now holds, or may hold, the said lands and estate of Craigiehall and others, subject to no fetters, conditions, or restrictions of entail, or at least that he holds or may hold the said lands subject to no valid prohibition against altering the order of succession;” and therefore, it concludes for a decree of declarator against the heirs called by the destinations of the estate, “that the pursuer does hold, or is now entitled to hold, the said lands of Craigiehall and others, subject to no fetters, conditions, or limitations whatever, at least subject to no valid prohibition against altering the order of succession.”

The particular question which is raised under this conclusion is, Whether, by the form and construction of the investitures of the estate constituted by the charter of resignation of date the 26th of July, 1733, the restrictions and limitations of entail therein expressed, are effectually applied to the heirs to whom the estate is destined by that deed, and the marriage contract on which it proceeds, and for the protection of the course and order of succession thereby laid down?

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¹ Lords Glenlee, Cringletie, Meadowbank, Mackenzie, Medwyn, Corehouse, Fullerton, Moncrieff. The Lord President declined himself, as did also the Lord Justice Clerk.

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There is no doubt, that in this question the pursuer is entitled to a strict construction. For though this is a declarator inter hæredes only, the question relates to the imposition of fetters or restraints upon the right of property, and in all such questions a strict interpretation must be given. We understand this principle, as established by the authorities and decided cases, to mean, not merely that without direct words such limitations cannot be imposed from presumed or implied intention, but that even where there are words within the deed having a certain tendency to indicate the intention of the granter, they may, under the strict construction of the law of entail, fail of effect, either from want of technical precision, or from error in the form and manner in which they are introduced.

But taking this principle to be undoubtedly fixed, we hold it to be clear, on the other hand, that the necessary clauses of limitation may be imposed on the heirs called in various forms. There are certain technical words in general use, some of which are essential in the clauses themselves. But there is no fixed rule as to the place or form in which they may stand in the deed. It is not even essential, in the first constitution of an entail, that the clauses should be within the deed itself, though, under the statute 1685, it is necessary to make it effectual against third parties, that they should be engrossed in the investitures following on it. For it has been repeatedly decided, that an entail may be effectually made by reference—by declaring that the lands shall be taken and held under all the conditions, prohibitory, irritant, and resolutive, expressed in an entail

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of lands already completed. Don v. Don. ¹— Lawries v. Spalding. ² In such cases it is necessarily implied, that the special clauses referred to cannot be taken literatim, applicable as they are to other lands, and perhaps to a different series of heirs. The words of restriction in the first deed of entail must be taken and applied, by the force of the words in the deed, referring to the lands and to the heirs expressed in that deed. There are other examples of the same principle, where all the clauses are within the same deed; as in the entail of Roxburgh, where the limiting clauses were all applied in point of words to the ‘persons before designed,’ ‘above written,’ &c., but were held, by means of other general words, to be effectually imposed in regard to the posterior destination in the same deed.

In the present case, the question appears mainly, if not exclusively, to depend on the charter of resignation 1733, and the seisin following on it, which have been found to constitute a prescriptive title in favour of the series of heirs therein mentioned. It may perhaps admit of some doubt and difference of opinion, whether, as the charter proceeds expressly on the procuratory of resignation in the marriage contract which immediately preceded it, it may not be competent to look into that contract for an explanation of any thing which may appear to be doubtful in the charter itself. But as the pursuer and his predecessors have possessed, by charter and seisin, far beyond the years of prescription, according to the terms of the investiture on the charter, and as that has been found to constitute a

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¹ Don v. Don, Feb. 5, 1713, Forbes, 654. Mor. 15591.

² Lawries v. Spalding, July 24, 1764, Fac. Coll. 3. 324. No. 140. Mor. 15612.

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prescriptive title against him, it appears to be the safer rule of judgment, to consider the operation of the restrictive clauses exclusively on the terms of the charter itself.

It seems, however, to be very clear, that if the pursuer is allowed to hold by the charter exclusively, he must take it as it is, and stand by it absolutely and consistently. If we are to go out of it all, the most material deed referred to is the marriage contract; and if that be looked into, the intention at least is perfectly certain. But if all explanation by means of the contract is to be excluded, neither can the old entail of 1708, be considered in its particular clauses, to the effect of qualifying or affecting the operation of the limiting clauses in this charter.

In the cause which was decided between the same parties, by the Lords of the Second Division, it did certainly appear, that there was a discrepancy in legal effect between the destination in the entail 1708, and the destination in the marriage contract and charter 1733. And, notwithstanding the reference from the one to the other, it was held that the charter must regulate the succession, that is, that the lands were effectually resigned, and charter and seisin given, in favour of the series of heirs therein specified.

In the present question, it does not appear that the discrepancy between the two destinations is material, or competent for the consideration of the Court. The point settled is, that the heirs called are the heirs expressed in the dispositive clause of the charter. And the single question now is, Whether the fetters, as laid down in that deed, are effectually applied to the heirs so called, and to the order of succession so appointed?

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There is difficulty in this question, arising from the peculiar structure of the charter. It has not been framed, as it ought to have been, according to a correct system of conveyancing. The dispositive clause, as it stands in the commencement of the deed, makes no mention of conditions or limitations. The grant and disposition is made to Charles Hope and the series of heirs particularly mentioned, and then there is a reference to the entail 1708, which reference may either relate to the whole destination under a mistake as to the effect of it, or only to the heirs who come after the special heirs of Charles Hope in his marriage with Katherine Weir, or in any subsequent marriage—the words admitting of either construction. But, however it be taken, it is settled that this reference does not qualify the destination. The lands are then inserted by general description.

The clause of Quæquidem is very inaccurately framed. It bears that the lands had belonged to Countess Henrietta, and that they were resigned in virtue of the procuratory granted by her in the marriage-contract, specified by its date, ‘in favorem,’ &c. Then follows what ought to have been an exact recitation of the procuratory. But it is not so; and to this cause we attribute all the difficulty, or appearance of difficulty, which there is in the case. It does not insert the destination. But it must clearly be held, in consonance with the former decision of the Court, that the words “reliquis hæredibus talliæ supramentionat.,” and the words “modo supra express.,” relate to and take in the destination, as given in the dispositive clause, notwithstanding the inter veiling words of reference to the original bond of

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tailzie. The narrative of the resignation in favour of those heirs is followed by the clause “idque omnimodo,” &c. under the burdens, conditions, &c. &c. Here there is a plain blunder in the words “suprascript.;” but it is followed by the reference to the old entail, and then by the videlicet, covering all the clauses of limitation as specifically inserted.

It seems to be unnecessary to go into a minute analysis of the whole clauses. There are some of them, in which, from the awkward manner in which the sentences are framed, the purpose of the parties, in so far as it may be legitimate to collect it from the marriage contract, might fail of effect. As an example, we may refer to the provision for the event of any of the heirs succeeding to the honours and estate of Hopetoun. But, attending to the conclusions of the present action, it seems not to be at all necessary to resolve every particular case which might in possibility arise. The material point is to consider, whether the ordinary clauses, prohibitory, irritant, and resolutive, are applied to the heirs in whose favour the resignation was made and the charter of resignation granted, and for the protection of that destination.

These clauses are “Ac etiam providen. et declaran., sicuti,” &c. Under this word ‘sicuti’ there is a reference to the old entail, but the “providen. et declaran.” are clearly part of the procuratory of resignation narrated. And what is provided and declared? “Quod non licitum aut legitimum erit dict. Magistro Carolo Hope, neque ullis hæredum vel membrorum talliæ supramentionat. prædict. talliam et ordinem successionis supramentionat. alterare,

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innovare,” &c. It is certainly unfortunate that the writer of the deed should have here and in other places curtailed the most important words, so as to leave the grammatical case of the participle ‘ supramentionat.’ under a possibility of doubt. But we think it sufficiently clear upon the whole words, that the heirs, and the order of succession here referred to, are the heirs and the order of succession before mentioned in this deed. Thereare no other heirs before mentioned, either in this charter or in the first part of the procuratory, if that could be referred to. The destination to them is the only order of succession to which the words could be applied. And it may be observed, that in the clause of exemption and reservation, where similar words with the same abbreviation are used, the heirs and members of tailzie ‘supramentionat.’ are so put in opposition to the provisions of the original entail, that the supramentionat. must relate to the heirs of tailzie above mentioned, and cannot relate to the entail of 1708.

The prohibitory clause, therefore, appears to be sufficient, and it is not said that it does not contain all the necessary words. A question has been raised on the resolutive clause. There is perhaps some difficulty in the construction of the words and sentences, but we think that the words providen. et declaran cover all these clauses. The ‘sicuti’ reaches them also, adopting the clauses of the old entail, but applying them to the heirs of the charter itself. And the words ‘et per dict. talliam,’ &c. might perhaps be considered as a continuation of that part of the sentence which forms the irritant clause, beginning “et si dict. Magister Carolus Hope,” &c. shall do in the

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contrary, their whole acts shall be null and void, “and by the said tailzie it is declared that the person so contravening,” &c. But supposing this not to be the right construction, then the clauses would run thus, ‘Providing and declaring,’ as it is provided and declared by the original entail, that it shall not be lawful, &c.; and if any of the heirs shall do in the contrary, their acts shall be void; and as it is declared by the said tailzie, that the person so contravening shall forfeit, &c.

The powers reserved are clearly reserved to the heirs of the charter, and then the conclusion of the quæquidem bears—‘Under the burden of which ¹ reservations,’ &c. the resignation was made in favour of Charles Hope ‘aliorumque hæredum supramentionat.,’ where this last word must necessarily be a genitive, and refer to the heirs as before mentioned, and of course, according to the previous decision, not qualified by the reference to the old entail which follows.

The quæquidem clause being finished, the clause of tenendas is then brought in, and this undoubtedly is very clear and precise. The lands are to be held by Charles Hope, and the heirs of tailzie substituted to him “modo suprascript., cum et sub omnibus provisionibus, conditionibus, reservationibus, oneribus, et clausulis irritantibus particulariter supra express.,” without any reference to the old entail. And, finally, the precept of seisin refers to the conditions in similar absolute terms.

On a review of the clauses of this charter, we are

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¹ There is a mistake in the word cujusquidem, but is is of no consequence.

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of opinion, that though it is in various respects inaccurately framed, it is on the whole effectual to oblige the heirs succeeding in virtue of it to hold the estate under the conditions of entail particularly recited in the quæquidem clause, and to prevent them from altering the order of succession laid down in the dispositive clause, and from holding the estate in other respects free from the fetters against selling the estate, or contracting debts to affect it. We can imagine particular cases to arise out of this entail, which would be attended with greater difficulty. But in order to meet the conclusions of the present action, it does not appear to us to be necessary to anticipate the opinion which might be formed on any such particular cases.

The restraining clauses are not in this case engrossed in the dispositive clause. But as a charter of resignation is not an original writ, but the act of the superior, upon the resignation of the vassal, we are of opinion, that, in a title-deed of this nature, it is sufficient, to render the clauses effectual, that they are clearly laid down in the recitation of the terms on which the resignation was made, and referred to in the clause of holding and in the precept of seisin.

On the whole, in answer to the first question proposed to us, we are of opinion, that, under the circumstances stated on the record, there is a valid subsisting entail of the estate of Craigiehall, whereby the pursuer of the present action, Mr. Hope Vere, is effectually prohibited from altering the order of succession, contracting debt, and selling the said estate.

We do not understand that our opinion is now required on the second question originally submitted

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to us relative to the special case of the lands of Upper Craigie and others.”

In consequence of no answer being returned to the second of the queries, the case was remitted back for an opinion upon that question. This additional opinion was given:”

“We understand it to be the desire of the parties expressed in the minutes that we should make some answer to the second question which was proposed for our opinion by the Lords of the First Division, in order that the cause may be exhausted in this Court, so far as it can be now exhausted.

That question is, Whether, in the particular situation of the lands of Upper Craigie, in respect of the Crown charter in 1758, as described in the question, there is a valid and subsisting entail as to these lands by which the pursuer is effectually prohibited from altering the order of succession, contracting debt, or selling the lands?

We are of opinion that it is impossible to give any satisfactory judgment on that question in the present action until some further proceedings shall have been taken by the pursuer, or by one of the parties, for finally disposing of the previous action referred to in the record, which, in so far as it related to these lands of Upper Craigie, is still in dependence in the Second Division of the Court.

By the summons in that action the pursuer concluded to have it found, that he was entitled to possess the lands comprehended in it by the title of the old entail of 1708, under all the conditions and limitations of that deed. But when the Court decided the question

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which was there raised in regard to the other lands, they remitted “to the Lord Ordinary to hear counsel for the parties further on the effect of the conveyance by Charles Hope Vere, the pursuer's father, dated the 11th of February, 1758, and titles following thereon,”—“and to do therein as his lordship shall see just.” The titles thus referred to, are those, which apply to the lands of Upper Craigie. But we do not find that any farther discussion has taken place under the remit; and the action is still in Court, but before the Second Division.

Attending, therefore, to the nature of the conclusions in the present action, compared with those in the former, and to the grounds of argument employed in support of them, it seems to us to be altogether impossible to give any judgment on the question now submitted to us until it be first determined, in the previous depending action, whether the pursuer must be held to have possessed these lands of Upper Craigie by the title of the old entail, or by what other title he has possessed them, or at least until that other action shall have been in some manner disposed of in its application to the lands in question.”

The judges of the First Division concurred in that opinion, and the Court, on the 5th of March, 1833, pronounced the following interlocutor:—

“The Lords sustain the defences, and assoilzie the defenders, so far as respects all the lands and estate mentioned in the summons of declarator, except the lands of Upper Craigie and lands of Standanstain, with the teinds contained in the charter 23d February, 1758, and decern; and as to the lands and teinds in the said

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charter 1758, they reserve the consideration of the entail of these, until the issue of the action of declarator, and reduction, still in dependence in the Second Division of this Court: Find the pursuer liable in expenses, appoint an account to be put in, and remit to the auditor to tax the same, and to report.” ¹

Thereafter, on the 22d June, 1833, decree for expences was pronounced.

Mr. Hope Vere appealed.

Appellant.—1. By the true construction of the deeds constituting the investiture under which the appellant holds the estate of Craigiehall, no fetters or limitations of entail were effectually imposed on the heirs of that investiture, but only on the heirs under the old entail of the Marchioness of Annandale, which has long since been extinguished by prescription.

All the judges agree that in the present question the appellant is entitled to the benefit of a strict construction of the investiture in his favour. This principle has been illustrated in the late case of Morehead against Morehead ², which so far resembled the present, that there the question was, whether the fetters of entail were imposed on the institute, or merely on the substitutes? while here the point in dispute is, whether they are imposed on the heirs of a new investiture, or of the old?

Although it were conceded, that the intention of the Countess of Hopetoun, was to create a new entail by the marriage contract of 1733, still, if the charter

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¹ 11 S., D., B, 520.

² 1 Shaw and Maclean's Ap. C. p. 28.

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