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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Dempster v. Dempster [1857] UKHL 3_Macqueen_62 (12 June 1857)
URL: http://www.bailii.org/uk/cases/UKHL/1857/3_Macqueen_62.html
Cite as: [1857] UKHL 3_Macqueen_62
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SCOTTISH_HoL_JURY_COURT
Page: 62↓
(1857) 3 Macqueen 62
REPORTS OF CASES ARGUED AND DETERMINED IN The House of Lords.
No. 5
v.
Subject_Entail. — Lord Rutherfurd's Act. —
An entail defective in any one of its prohibitions is bad in all.
The rule is the same, although the question may be inter hæredes.
The consequence may be that an entail cannot be made otherwise than under the Act of 1685. But this consequence is not mischievous, because the policy of the law is not to encourage, but to discourage, entails.
The Summons was one of Declarator by the Respondent as heir of entail in possession of the estate of Skibo; and it alleged that the entail of that estate was defective under the Act of 1685, c. 22, for that certain words occurring in the irritant clause thereof were engrossed on an erasure. The words in question were “Deeds granted, and acts done or committed.” The heir in possession sought by the Summons to have it declared that he was entitled to sell the estate, and that the succeeding heirs of entail had no right to object.
The Pursuer further relied on Lord Rutherfurd's Act (a), which declares that when an entail is defective as regards any one of the prohibitions mentioned therein, it shall be deemed and taken to be defective as regards all the prohibitions.
The Appellant, on the other hand, contended that the alleged erasure was immaterial in a question (which this was) inter hæredes.
The Court of Session decided in favour of the Pursuer. The Defender appealed.
_________________ Footnote _________________
( a) 11 & 12 Vict. c. 36. s. 43.
Page: 63↓
In support of the Appeal, the Lord Advocate (a) and Mr. Rolt were heard.
The Attorney-General (b) and Mr. Anderson for the Respondent were informed that the House did not deem it necessary to hear them; the Lord Chancellor (c) and Lord Wensleydale delivering the following opinions:
Lord Chancellor's opinion.
The
My Lords, This is a case which does not admit of the least doubt in the world, not merely because the point here raised has been already decided in this very year by your Lordships, in the case of
Baillie v. Cochrane
(d), removing all shadow of doubt, if there was any doubt before upon it; but I think it is perfectly clear, from the 43rd Clause of the Act, that the great evil which Mr.
Rolt suggests may arise from parties not being able in Scotland to make an entail disposition otherwise than according to he terms of the Statute of 1685, that great evil has been incurred, if it was an evil, but I do not see that there is any evil in it at all. Certainly, the object of that Statute was not to encourage Scotch entails, quite the reverse, and the language of the 43rd Clause
(e) seems not to admit of the least possible doubt, for not only does it say, that if the deed is invalid and ineffectual in any one of the irritant clauses, it shall be invalid and ineffectual as regards all, but it goes on to state that “the estate shall be subject to the deeds and debts of the heir then in possession, and of his successors as they shall thereafter in order take under said tailzie, and no action of forfeiture shall be competent at the instance of any heir substitute in such tailzie against the heir in possession under the same by
_________________ Footnote _________________ (
a) Mr. Moncreiff. (
b) Sir R. Bethell. (
c) Lord Cranworth. (
d) Vol. ii., p. 529. (
e) 11 & 12 Vict. c. 36.
Page: 64↓
In this case the Lord Ordinary first, and the Court of Session afterwards, came to the only conclusion at which they could arrive, and so far as appears upon these papers, they came to that conclusion without any hesitation and without much argument addressed to them upon it.
Lord Wensleydale's opinion.
My Lords, I entirely concur with my noble and learned friend, that the decision of the Court of Session in this case is right, and that the Appeal must be dismissed.
Interlocutors affirmed, and Appeal dismissed with Costs.