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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> The Right Honble. John Hamilton Dalrymple, Earl of Stair v. William Read King, Esq., of Serjeants' Inn, London [1846] UKHL 5_Bell_82 (30 April 1846)
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Cite as: [1846] UKHL 5_Bell_82
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SCOTTISH_HoL_JURY_COURT
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(1846) 5 Bell 82
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1846.
No. 6
v.
[
Subject_Tailzie. — Part and Pertinent. —
In order to make an entail, duly registered so as to be binding against creditors of lands, which had originally been acquired as a separate tenement, it is necessary either that the entail embrace them by name or that they should be shown to have been actually possessed as part and pertinent of other specific lands nominatim embraced, by the entail, for the prescriptive period prior to the making of the entail; and for the purpose of showing such possession the mere fact of possession of other contiguous lands upon titles with part and pertinent, and a statement, in the titles made up from time to time, that the lands, alleged to have been possessed as part and pertinent, were embraced by the entail, was not held sufficient.
In the year 1677, John Lord Bargeny, who was infeft in the property and superiority of the lands and isle called Inch, and in the property only of the lands of Cults, executed a disposition of both parcels of lands, along with a variety of other lands, in favour of Sir John Dalrymple, by a conveyance to Sir John “and his nearest and lawful heirs male,” giving them the following description:—
“All and Haill the lands and isle called the Inch, with the mannor within the said isle, with the lochs and fishings within the said lochs, and castle betwixt the said lochs, with their pertinents, &c., &c. And sicklike, All and Haill the thrie-pund land of Cults, with houses, biggings, yairds, woods, fishings, pairts, pendicles, and pertinents therof whatsumever,
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lyand within the said parishin of Inch, and sheriffdome of Wigtoune forsaid, and that be way of excambione and permutation of the fyve-merk land of Meikle Largs, Auchmantle, Polteriar, and Auchinvan, which are pairts and pertinents of the said fyve-merk land of Meikle Largs, with houses, biggings, yairds, woods, fishings, pairts, pendicles, and pertinents therof, lyand within the said parichin of Inch, and shirriffdome forsaid, quhilks pertainit to umq 1. John, Earle of Cassills, ffather to John, now Earle of Cassills, for the saids lands of Cults, with the pertinents, whilks pertainit to umq le. Fergus Lyne of Little Largs, with this provision and condition alwayes, that if it should happen the saids lands of Cults, with the pertinents, to be evicted from the said umq le. Earle of Cassillis, his aires or assigneys, or the saids lands of Meikle Largs, and others forsaids, with the pertinents to be evicted from the said umq le. Fergus Lyne, his aires or assigneys, that then and in that case the said umq le. Earle, and his forsaids, and the said umq le. Fergus Lyne and his forsaids, ffra whom the said lands should happen to be evicted, should have full and free regress in and to the respective lands abovewritten, disponed by them to others in manner mentionat in the originall rights and infeftments therof.”
The disponee in this conveyance made up his title to Inch and the other lands, with the exception of Cults, by expeding a crown charter upon the procuratory in his disposition.
In 1699, William Linn, ( Lyne,) the superior of the lands of Cults, executed a disposition in favour of Sir John Dalrymple, then Viscount Stair, “and his aires and assigneys whatsomever,” of “all and haill y e superiority of the lands of Cults, lying within the parochin of Inch, and shriffdome of Wigtoun, holden be him of me in ffew.”
For some reason or other the disponee, in this conveyance, afterwards first Earl of Stair, did not, in his lifetime, make up a title, either to the property of the lands of Cults under the
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The first Earl died in 1707 and was succeeded by his son John, the second Earl, who, in that year, expede a special service as eldest lawful son, and lawful and nearest heir male of line, tailzie and provision,” to the first Earl, in a variety of lands forming the family estate particularly enumerated, Cults not being of the number. After this enumeration, the retour of this service continued in these terms:—
“Et similiter in totis et integris quinq. mercat. terrarum de Meikle Largs Auchinmantle Polteriar et Auchinvan quæ sunt propriæ partes et pertinen. dict. quinq. mercat. terrarum de Meikle Largs cum domibus edificijs hortis molendinis silvis piscariis partibus pendiculis et pertinen. earund. jacen. infra parochiam de Inch et vic. de Wigtoun antedict. una cum summa decem librarum monetœ hujus regni annuæ feudifirmæ dict. demortuo Joanni Comiti de Stair de ijsd. solut. et debit, et hoc pro compensatione talis summæ decem librarum annuæ feudi divoriæ per ilium solut. et debit. de tribus. librat. terrarum de Cults jacen. infra dict. parochiam de Inch et Vic. de Wigtoun antedict. quæ datæ erant in excambionem et permutationem dict. quinq. mercat. terrarum de Meikle Largs cum dict. terris de Auchmantle Polteriar et Auchinvan quæ sunt partes et pertinen. earund. modo et forma particulariter mentionat. in dispositione per Joannem Comitem de Cassills Joanni Domino Bargany fact. et concess. ad quam dict. demortuus Joannes Comes de Stair jus habuit, &c. &c.”
Upon this retour his lordship expede a Crown charter of resignation, which, after enumerating the lands specified in the retour, contained the same clause that has just been quoted.
In the same year the second Earl expede a general service as heir male and of line to his father.
In 1707, and also in 1739, the second Earl executed two several bonds of entail of a great variety of lands, Cults not
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“And farther, we do hereby bind and oblige us and our heirs, as well male, tailzie, conquest and provision, as heirs general and of line, and successors whatsomever, renouncing the benefit of discussing our said heirs in order of priority, to obtain ourselves duly and lawfully infeft and seased in the lands, teinds, baronys, and others hereafter mentioned, and all other lands, teinds, and estate pertaining to us wherein we are not as yet infeft, and that in such way and manner as shall be most agreeable to the laws of this kingdom; and being so infeft and seased, to make due and lawful resignation thereof in the hands of our immediate lawful superiors of the samen, or their commissioners in their names, having power to receive resignations thereof, and to grant new infeftments thereupon, in favours and for new infeftments of the same, to be made, given, and granted to ourself, and the heirs-male lawfully to be procreate of our body; whom failing, to the other heirs of tailzie and provision before and after mentioned.”
On the 20th March, 1746, the second Earl executed another bond of entail and a procuratory upon the narrative that various changes among the heirs called to the succession by the deeds of 1707 and 1739, had determined him to revoke the same “with regard to my lands and estate.” This deed set out with disponing “all and whole my lands, baronies, milns, fishings, teinds, patronages, and other heritages whatsoever, presently pertaining and belonging to me, or that shall happen to pertain to me at the time of my decease;” and after enumerating lordships and baronies, embraced numerous parcels of land by their several descriptions, many of them stated to be lying “within the parish of Inch and sheriffdom of Wigton.” Among the rest it contained the following
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“And sicklike, “All and Haill the five-merk land of Meiklelarg, Auchmantle, Poleregan, and Auchinvian, which are proper parts and pertinents of the said five-merk land of Meiklelarg lands of Glenterrow and Craigochs, with houses, biggings, yairds, woods, fishings, parts and pendicles of the same, lying within the parish of Inch and sherriffdom of Wigton, together with ten pounds Scots of few-dewtie, and payable out of the same to the Earl of Stair yearly, and that in compensation of the like sum of ten pounds Scots of few-duty yearly, due and payable out of the three-merk land of Cults, with the pertinents, which were given in exchange and permutation for the foresaid five-merk land of Meiklelarg, Auchmantle, Poleregan, and Auchinvian, as is more particularly mentioned in the disposition of the same, made and granted by John, Earl of Cassils, to the deceast John, Lord Bargeny, and to which the Earl of Stair has right;”—And likewise, All and Haill the lands and islands commonly called the Inch, with the mannor-place within the said island, with the lochs and fishings in the said loch and castle within the said loch commonly called Castle Kennedy, and haill pertinents of the same;”
but further than this it was altogether silent as to the lands of Cults, either by particular name or by description. The dispositive clause concluded with the following general words, “together with teinds, parsonage and vicarage, of the lands, lordship, barronys, and others above written, and all right, title, interest, claim of right, property, and possession, as well petitor as possessor, which we or our predecessors or authors had, have, or any ways may have, claim, or pretend thereto, or to any part or portion thereof, in time coming, and all other lands and heretages presently belonging to me, or that I shall hereafter acquire during my life, together with all right, title, interest, claim of right, property and possession which I have, or any ways may have, claim, or pretend thereto in time coming.”
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In July, 1746, the Earl expede a Crown charter upon the procuratory, in the last-mentioned entail. He did not, however, take infeftment on this charter, but assigned it to his nephew, Captain Dalrymple, and the other heirs of entail. In November, 1747, Captain Dalrymple completed his titles, under the entail of 1746, by taking infeftment in the lands contained in the Crown charter; and in the same month, he put the entail and assignation of the procuratory upon the register of entails; and in September, 1752, he expede a general service, as heir of tailzie and provision to his uncle, who had died in May, 1747.
After the second Earl's death, he was succeeded in his titles by two successive Earls of Dumfries—the third and fourth Earls of Stair. Upon their deaths, Captain Dalrymple became the fifth Earl of Stair.
The fifth Earl, upon the death of his uncle, and before he succeeded to the title, entered into possession of the whole lands which had been possessed by the first and second Earls, the lands of Cults being of the number, and he continued in the enjoyment of this possession until his death, which happened in the year 1789. During this possession, he, in the year 1786, executed an entail, which will be mentioned afterwards, but need not be set forth.
John, sixth Earl, expede a general service, as only lawful son and nearest heir male, and heir of taillie and provision to the fifth Earl, his father. Upon the retour of this service, and the procuratory in the conveyance of the superiority of the lands of Cults, by Linn in 1699, which had never before been executed, he expede a Crown charter of resignation, which conveyed a variety of lands:—
“Et similiter terras et insulam vulgo vocat. The Inch cum maneriei loco intra dict. insulam cum lacubus et piscationibus intra dict. lacus et castro intra dict. lacum vulgo vocat. Castle Kennedy et integris pertinen. earund, &c. Ac etiam totas et integras terras de Cults cum pertinen. jacen. intra
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parochiam de Inch et vicecomitatum de Wigton. Quæquidem Comitatus Dominium terræ decimæ aliaque prædict. content. sunt in dispositione et literis talliæ execut. per dict. demortuum Joannem secundum Comitem de Stair de data vigesimo die Martii anno millesimo septingentesimo quadragesimo sexto.”
In the quæquidem clause of this charter, the title to the lands of Cults was thus deduced:—
“Et dict. terræ de Cults virtute procuratoriæ resignationis content in dispositione earund. fact. et concess. per dict. Gulielmum Lin ad et in favorem Joannis primi Comitis de Stair inibi designat. Joannis Vicecomitis de Stair ejusque hæredum et assignatorum quorumcunque de data vigesimo die mensis Aprilis 1699 et registrat. in libris Sessionis vigesimo nono die mensis Augusti 1785 cui dict. Joannes secundus Comes de Stair jus habuit tanquam hæres generalis servitus et retomatus dict. demortuo Joanni primo Comiti de Stair patri secundum generale servitium expedit. coram clavigeris Curiæ Sessionis decimo die mensis Maij 1707. Et ad quamquidem dict. Joannes ultimus Comes de Stair jus habuit per dict. dispositionem et obligationem talliæ concess. per dict. demortuum Joannem secundum Comitem de Stair de data vigesimo die mensis Martij, anno Domini 1746, et generale servitium dict. Joannis ultimi Comitis de Stair tanquam hæredis talliæ et provisionis dict. Joanni secundo Comiti de Stair ejus patruo secundum dict. dispositionem et obligationem talliæ, expedit. coram Vicecomite Edinburgensi vigesimo secundo die mensis Septembris, 1752. Et ad quamquidem dict. Joannes nunc Comes de Stair jus habet tanquam hæres talliæ et provisionis servit. Joanni Comiti de Stair ejus patri in dict. Tallia secundum generale servitium expedit. coram balivis Edinburgensibus primo die mensis Julij 1790.”
In this charter there was a several and distinct reddendo for the lands of Inch and the lands of Cults.
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The title under this charter was duly made up by infeftment of date 5th October, put upon record 15th November, 1791, which thus described, among others, the different parcels of land:—
“Totum et integrum Comitatum de Stair dominium et baroniam de Dalrymple comprehenden. terras baronias molendina decimas piscationes officia aliaq. postea mentionat. viz. &c.
Et similiter terras et insulam vulgo vocat. The Inch cum maneriei loco intra dictam insulam cum lacubus et piscationibus intra dict. lacus et castro intra dict. lacum vulgo vocat. Castle Kennedy et integris pertinen. earundem, &c.
Ac etiam totas et integras terras de Cults cum pertinen. jacen. intra parochiam de Inch et Vicecomitatum de Wigton. Quæquidem comitatus dominium terræ decimæ aliaque prædict. content. sunt in dispositione et literis talliæ execut. per dict. demortuum Joannem secundum Comitem de Stair de data vigesimo die Martii anno millesimo septingentesimo quadragesimo sexto, &c.”
The sixth Earl under this title entered to the possession of all the lands, Cults included, and continued in the enjoyment of such possession until his death in 1821.
In November, 1821, John William Henry, the seventh Earl, made up his title to the family estates by expeding a special service as heir under the entail of 1746. The retour of this service expressed that the preceding Earl had died vest and seised “in feodo totarum et integrarum comitatus dominii baroniarum terrarum molendinorum decimarum et aliarum hæreditatum postea specificat. viz. totarum et integrarum Comitatus de Stair, &c. Et similiter terras et insulam vulgo vocat. The Inch cum maneriei loco intra dict. insulam cum lacubus et piscationibus intra dict. lacus et castro intra. dict. lacum vulgo vocat. Castle Kennedy et integris pertinen. earundem Totas et integras quinque librat. terrarum de Killorpottie,
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The seventh Earl took sasine in the various parcels of land under this retour, and throughout his life enjoyed possession of the whole family estates upon this title.
In making up this title, his lordship had conceived that he derived his title to the lands of Cults under the entail of 1746, and for some time afterwards he continued under the same impression, as he expended large sums of money on improvements of the estate, and upon the lands of Cults among others, which he made a burden upon the succeeding heirs of entail, by proceedings adopted under the Statute 10 Geo. III.
Subsequently, his lordship's pecuniary embarrassments induced him to take another view of the matter, and to endeavour to make a title in fee simple to the lands of Cults. Accordingly he first, in 1822, expede a general service as heir male to John, the first Earl, in these lands, and took infeftment in them, omitting in his seisin, all mention of the fetters of entail; but, discovering a defect in this title, by reason of the second Earl having expede a general service as heir male to the first Earl, he, in 1823, expede a second general service and infeftment, as heir male to the second Earl.
After this, his lordship, in 1835, executed a voluntary trust conveyance in favour of Ranken, a solicitor in London, for behoof of his creditors. This conveyance embraced the lands of Inch and Castle Kennedy, and the lands of Cults, by separate and distinct description; and, after enumerating the
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“Which earldom, lordship, lands, teinds, and others aforesaid, are contained in a deed of taillie executed by the said John Earl of Stair, dated the 20th day of March, 1746,” &c.
“And in which earldom, lordship, baronies, lands, mills, teinds, and other heritages before specified, I, the said John William Henry Earl of Stair, stand duly and legally vested and seised, in terms of the taillie of Stair, as heir of line, taillie, and provision therein, to John, last Earl of Stair, my cousin-german, conform to the several infeftments thereof in my favour, and all and sundry other lands and heritages whatsoever pertaining and belonging to the Earl in Scotland, or to which in any way he had right with the whole writs and title deeds thereof.”
Ranken was about to avail himself of the general words of conveyance and the title in fee simple, which had been made up by the seventh Earl, as giving him a title to the lands of Cults, and of the power to sell them for behoof of his lordship's creditors, when he was interrupted by an action, at the instance of the present appellant, then the first substitute under the entail of 1746, against himself and his author, asking as its first conclusion, to have it declared that the lands of Cults, “both as to the superiority as well as the property or dominium utile thereof, are included or comprehended in, and have been effectually and well and validly entailed by the foresaid deeds of entail of 20th March, 1746, and 6th October, 1786, the respective transmissions thereof, the foresaid charter of 5th July, 1790, and the infeftment thereon dated 5th October, and registered 15th November, 1791, and the possession following thereupon by the said deceased John, sixth Earl of Stair, and the defenders, the said John William Henry Earl of Stair, their predecessors and authors, and generally by the various deeds, instruments, proceedings, and others before narrated, and the possession following thereupon; and that
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The defenders to that action pleaded that Cults was not contained in any registered entail, and that as to the dominium utile, there had never been a tailzied infeftment expede therein. Earl William Henry ( seventh Earl) died during the dependance of this action, and was succeeded to in his titles and estates by the appellant, the eighth Earl of Stair.
On the 10th of March, 1841, the Court (vide 3 D. & B. 837) repelled the defences, and found “that the title made up by the late Earl to the lands of Cults in fee simple was inept, and therefore reduce the writs called for and the disposition to Mr. Ranken, so far as regards the fee of the estate of Cults, and under this qualification reduce, decern, and declare in terms of the reductive conclusions of the libel: farther, declare in terms of the first declaratory conclusion of the summons; find that Mr. Ranken has not a sufficient title to maintain the rights of the creditors under the disposition libelled on and infeftment following thereon against the estate of Cults.”
In April, 1841, the respondent, as executor of a bondcreditor of the seventh Earl, brought an action against the appellant, as heir, served and retoured to John William Henry, the seventh Earl, concluding for payment of the bond debts due to his testatrix, upon the ground that the lands of Cults were held in fee simple, and that the defender was liable for the debts of his ancestor in valorem of these lands.
The appellant, in addition to other defences preliminary and upon the merits, pleaded as his third defence:—
“The defender not being the general representative of the late Earl of Stair,
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but representing him only as heir of entail, and to no further extent, cannot be made liable for his debts and deeds.”
This defence he enlarged in his plea in law by a plea in these terms:—
“The lands of Cults having been validly comprehended and disponed, as part and pertinent of the Stair estates, under the broad terms of the conveyance in the entail executed by John the second Earl, in 1745-6, and that entail having been afterwards duly recorded in the Register, of Taillies, the said lands were thereby effectually protected against the diligence of creditors, and the registration once made was not rendered inoperative by the title subsequently completed in the person of John the sixth Earl, in 1790.”
The Lord Ordinary, ( Cockburn,) on the 2nd of February, 1842, sustained “the third defence, viz., that the defender not being the general representative of the late Earl of Stair, but only a succeeding heir of entail, is not liable for his debts or deeds,” and assoilzied. To this interlocutor his Lordship added the following note:
“The Lord Ordinary considers the facts and principles on which this defence rests to be all fixed by the case of Dalrymple v. Stair, 10th March, 1841. Among other things, he holds Cults to have been held and possessed as a part of the general entailed estate.”
The respondent reclaimed, and the Court, before answer, “and for the purpose of having the opinions of all the Judges on the question raised by the Lord Ordinary,” appointed the parties to put in minutes of debate, which was accordingly done, and very elaborate opinions were then delivered by the consulted Judges.
Thereafter, the Court, in conformity with the opinions of the majority, on the 28th February, 1844, “recalled the interlocutor of the Lord Ordinary, repelled the third defence pleaded by the defender, and remitted to the Lord Ordinary to proceed farther in disposing of the other points of the cause as to Lordship should seem proper.”
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The appeal was taken, by leave of the Court below, against this interlocutor.
Mr. Rutherford and Mr. Bethel for the Appellant.—Although by the disposition of 1699, from Lord Bargeny to the first Earl of Stair, the lands of Cults were conveyed, along with the lands of Inch and Castle Kennedy, as a separate tenement, it was perfectly competent for the disponee to hold them, and to acquire a title to them, as part and pertinent to these lands; there was nothing to prevent this, either in the circumstance of their having been originally separate tenements, or in the relative greater magnitude of Cults to these lands. Fife's Trs. v. Cuming, 8 S. D. & B. 326, Stair II. 3, 73, Ersk. II. 6, 3. Young v. Carmichael, Mor. 9636. Moray v. Wemyss, Mor. 9636. Magistrates of Perth v. Wemyss, 8 S. D. & B., 82. Craig de feudis, lib. II. dieg. 3d sect. 24. Until 1699, therefore, when Linn, the superior of Cults, conveyed the superiority, the property of Cults was possessed as pertinent to the other lands, and after 1699, both the property and the superiority were possessed in the same way. The possession continued the same at the date of the entail of 1746, and having done so for more than forty years prior to that deed, these lands had become annexed to and incorporated with the general family estate, and were feudally vested by prescriptive title, as part and pertinent to the other lands.
Such being the state of the title and of the possession of the lands of Cults in 1746, the entail executed in that year, when it specified the lands of Inch and Castle Kennedy, by express description, was sufficient to embrace Cults, as part and pertinent to Inch or Castle Kennedy, without any particular express description of the former; at all events, it was sufficient to embrace them by the words of general conveyance.
The charter expede by the sixth Earl in 1790, upon the procuratory in Linn's disposition of 1699, was expede only
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Even if the charter of 1790 formed a separate independent title, a party is not bound to ascribe his possession to any particular title, when he has more than one in his person. He may ascribe it to whichever he prefers; and in this instance, all omission of Cults, by express description in the different titles made up, while in several of them these lands are mentioned as being contained in the entail of 1746, shows the intention of the family to ascribe their possession to title as part and pertinent. But in any view, as the disposition by Linn, was of the superiority of Cults alone, the charter expede under that disposition, could not affect the dominium utile of these lands, which was a separate estate, and thus, on the argument of the respondent, the dominium utile still remains upon the personal title, unfeudalized, and in that condition it is not attachable by creditors.
If the title, as part and pertinent, was complete, and if the entail of 1746 was sufficient in its terms to embrace the lands of Cults, as was found by the decision in 1841, what deed, other than that entail, could have been put upon the register, so as to make an effectual registered entail of these lands. That deed was found to be an effectual entail, under which the Earl was bound to possess the lands of Cults. It was duly registered, and it would have been utterly useless to have put upon the register any of the deeds of transmission following upon it. All that the Statute 1685 requires is the registration of the deed or deeds constituting the entail; this done, the statute is satisfied.
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Mr. Robertson and Mr. Anderson for the Respondent.—The original conveyance by Lord Bargeny, in 1674, disponed the property of the lands of Cults, as a separate and distinct tenement to the first Lord Stair and his heirs male. In 1699, Lynn, the superior, disponed the superiority of the lands to the same party and his heirs and assignees whomsoever. Prior to and at the date of the entail of 1746, these two destinations of the property and the superiority of the lands, to two distinct classes of heirs, remained unfeudalized, as no infeftment had been taken upon either of the conveyances.
The entail of 1746, although it contained a reference to the lands of Cults, did not dispone them by name. It did however contain a general clause of conveyance of all lands to which the maker was entitled, and a general assignation of writs and evidents. These clauses were sufficient to pass the personal right to both property and superiority of the lands, and to the procuratory and precept in the titles. Inter hæredes this might be good as an entail, and so the judgment of the Court below found in the question with Mr. Ranken, but that judgment did no more. The question, how far the entail of 1746 was effectual as against creditors and purchasers, was left untouched: as against them it plainly was ineffectual, because no infeftment in the lands of Cults by name, was ever taken or put upon the register either of sasines, or of entails, and nothing short of such express mention upon the register will satisfy the Statute 1685. The entail of 1746, therefore, was ineffectual to comprehend the lands of Cults, unless they had been possessed as part and pertinent to other lands, and at the date of the entail had already been absorbed in them, and become feudally vested in the maker of that deed, by prescriptive possession as such part and pertinent.
Lands to be possessed as part and pertinent must necessarily be adjoining those to which they are said to be appurtenant. Here, the only lands adjoining to Cults were Inch and Castle Kennedy, but both of them were greatly inferior to Cults in
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But if the relative position and extent of the lands had admitted of the plea of pertinent, it is altogether excluded by the acts of the possessors, which negative the notion of any intention on their part to ascribe their possession to such a title. However doubtful it may be which the title fifth Earl and the heirs prior to him intended to ascribe their possession to, the acts of the sixth Earl, in 1785, in registering Lynn's disposition of 1699, and in 1790 in expeding a charter upon the procuratory in that disposition, which, in the quæquidem, stated in terms that the lands had been last vested in Lynn, and as a necessary consequence negatived the idea of their having been vested in the Earls of Stair, as part and pertinent, put it beyond doubt that he intended to ascribe his possession to this separate title. This charter, therefore, with the infeftment upon it, vested Cults as a separate distinct tenement by its own name, for which a specific reddendo was made payable and has ever since continued to be paid to the Crown, and the special retours of both the seventh Earl and the appellant vested it in them in the same form as a separate tenement. It is evident, therefore, that posterior at least to 1785, the notion of possessing this estate not upon an express title, but as part and pertinent of other lands, was not entertained by any of the possessors, nor
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But such a use of the privilege allowed to a proprietor of ascribing his possession to whichever title he prefers, is altogether without precedent or authority. Where a party has been in undisturbed possession of lands, either without an express title, or upon a defective one, the law in support of that possession which it presumes to be righteous, allows him, if the circumstances will admit of it, to ascribe his possession as part and pertinent to other lands to which he has an unquestionable title. But no instance has ever occurred of anything so preposterous as a party who has an unquestionable express title, asserting a privilege to pass that title bye, and ascribe his possession to the uncertain and vague one of part and pertinent; on the contrary, such a course is expressly opposed by the decision in Gray v. Smith, Mor. 10803, where it was held that, if by both rights the possessor is unlimited fiar, prescription cannot run by possession upon the one title against the other; and the same principle was recognised in Zuille v. Morrison, 17 F. C. 251. The privilege of ascribing possession to whichever title the possessor prefers, however, has only been allowed in questions with parties seeking to evict upon an alleged preferable title not before asserted, and for the quieting of possession, but was never permitted for the purpose of defeating just creditors—the object in the present case,—the policy of the law being rather to protect their interests.
Moreover, in order to make a title by possession as part and pertinent, the possession must be shown to have been such. This must not only be alleged, but proved. Here there is no allegation on the record, whereby the possession is ascribed to part and pertinent of Inch or Castle Kennedy, rather than to the express title, and there is as little evidence of the fact if it had been alleged; on the contrary, the documents distinctly negative such a title.
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If Cults was absorbed as part and pertinent of the other lands, the absorption, in order to make the entail of 1746 cover it, must have been complete at that date, but the time elapsed did not admit of this as a possibility. In order to acquire a title to land without charter and seisin, by possession of them as part and pertinent to other lands, it is indispensable that there have been charter and seisin in these other lands. In the present case the first charter which was made after the superiority of Cults came into the family, was in 1707, and betwixt that time and the date of the entail in 1746, forty years had not elapsed, and during the whole period prior to 1746, the lands of Inch and Castle Kennedy were held under a destination to heirs male, while the superiority of Cults was destined to heirs whatsoever.
My Lords, we have to deal with this third defence, “The defender, not being the general representative of the late Earl of Stair, but representing him only as heir of entail, and to no further extent, cannot be made liable for his debts and deeds.”
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Now, my Lords, I conceive that the question which that defence raises, is, whether there has been a good registered entail of the lands of Cults. If there has been a good registered entail of the lands of Cults, binding upon creditors, the defence is sufficient; if there has not, the defence ought to be overruled.
The entail that is presented and relied upon, is that of 1746, which does contain words that might constitute a valid entail in general terms inter hæredes. But the question is, whether that entail, which was afterwards registered, does contain words that can be considered as a good registered entail, with fettering clauses binding upon creditors.
Now, my Lords, Mr. Rutherford has admitted, as he was bound to do, (and we always have the most candid answers from him, upon which we can implicitly rely), that to make a good registered entail, the lands must be named; that there may be a good entail in general words, without naming the lands; but that to make a good entail that shall be binding upon creditors, the lands must be named.
Now the lands of Cults are not named; but then it is possible that they may be included in other lands that are named, and according to my present view of the law of Scotland, a separate tenement, held under a separate title, may become portion of another tenement, and then by prescription, having become portion of that other tenement under long usage, it would become part of that tenement, either with regard to seisin or with regard to entail. So that a disposition of Castle Kennedy or of Inch, might have carried the lands of Cults, although the lands of Cults were acquired by separate title in 1675 and 1679. But then, my Lords, the party who felt it for his interest to contend that there has been this annexation, or absorption, or mergency, must prove it. He must allege facts, and prove facts, which will show that the one tenement has been occupied and really, in fact, has become portion of the other, so that the title may apply.
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In this case, my Lords, when the matter comes to be sifted, Mr. Rutherford allows that he has neither alleged nor proved anything to show that in the year 1746, Cults had become portion of Inch or Castle Kennedy. It will not do to talk about the general estate, we must know the particular specific lands to which it is supposed to be annexed. But he says there has been possession. There has been possession, to be sure—but then he might as well say, that it became part of any one of those infinitely various tenements that are enumerated in that deed of 1746. It is contiguous to Inch, but so it is also to various other tenements. Mere contiguity cannot be sufficient to show annexation, or absorption, or mergency.
Then what is there in the entail of 1746 to show that the disposition of Inch would have carried Cults? There is nothing, except that they both had been possessed under originally separate titles by the same family. Then in the year 1746, Cults had not become part of Inch—it was still a separate tenement. I would not look to what has since taken place, for if there had been prescription once operated upon, a subsequent dealing with the estate, could not defeat the effect of that prescription. But it is quite clear that Cults was always regarded as a separate tenement, and that it has been so treated down to the present hour.
By some accident, unfortunate for the present Earl of Stair, in the deed of 1746, Cults is not included by name. But not having been included by name, I am quite clear that according to the established and admitted principles of the law of Scotland, there is no registered entail whatever, of the lands of Cults.
Upon that ground, my Lords, I have no difficulty in advising your Lordships to affirm the judgment of the Court below.
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I do say, however, that I go along with the position, so completely yet concisely enunciated by Lord Murray, who gave a very clear summary of the arguments, (lying in no very large compass,) of this case. And I go along with the position maintained by my noble and learned friend. I find the learned Judges who reversed the interlocutor unanimous. An able opinion was given by Lord Jeffrey, to which I subscribe, but I particularly refer to Lord Fullerton's judgment which entirely expresses my own opinion upon the case. I might also refer to Lord Wood's opinion; and Lord Robertson's, who concurred with their views, but entered more fully into the case. There is great weight of authority here on both sides, which made it necessary to hear fully the arguments raised. Lord Cunninghame, a Judge of great experience, I may at the same time also remark, going very fully and elaborately into the case, being in favour of the defence and sustaining the interlocutor, other learned Judges also concurring with him.
My Lords, I have looked, in the course of the arguments to-day and on the two former days, to what has been urged, but I can see nothing to shake me in my opinion that there is not a registration of the estate of Cults, either directly by naming Cults, (for it might be done in either way, as is admitted on all hands,) or by reference or by registration of such other estates as are proved, de facto, to have comprehended the estate of Cults, or as being sufficient to fix them. It is clear, Cults is not mentioned by name. An intending incumbrancer could have had no notice upon the Registry of Seisins—he could have no notice upon the face of that record—of the name of Cults.
Then is it proved, in point of fact, (for it is totally a question of fact,) that in 1746 there was such an absorption or annexation of the two together, of Blackacre and Whiteacre,
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I cannot but observe, what is admitted on all hands, that the decision in 1841, that Cults was affected by this entail, was entirely rested upon the general words to be found in the end of the deed. It was held to be affected inter hæredes under the words, “all other lands and heritages presently belonging to me, or that shall hereafter belong to me.” But if, in 1746, Cults had formed part of those other estates, the entail would not have been held to be a registered entail binding upon heirs, under those general words, it would have been so held as including Cults in the lands named, and it would have been treated as a registered feudal entail.
But these general words were the ground of the decision. The decision was therefore in effect that Cults was not included as being part of the lands called Inch, or appertinent to Inch, but under such general terms as carried only the personal right, and did not make a feudal entail.
I have no doubt, my Lords, in advising your Lordships to affirm the judgment of the Court below.
Ordered and adjudged, That the petition and appeal be dismissed this House, and that the interlocutors therein complained of be affirmed, with costs.
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