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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Lord Perth and Melfort v. Lady Willoughby D'eresby's Trustees [1877] UKHL 258 (13 December 1877)
URL: http://www.bailii.org/uk/cases/UKHL/1877/15SLR0258.html
Cite as: 15 ScotLR 258, [1877] UKHL 258
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SCOTTISH_SLR_House_of_Lords
Page: 258↓
House of Lords.
(Before the
v.
(Ante, March 9, 1875, 2 Rettie 538.)
Subject_Entail — Crown Charter — Attainder — Effect of Grown Charter as obviating consequences of Attainder.
Facts:
A party founding on an entail created by a procuratory of resignation dated in 1687, raised an action to have it found that under the Act of 1690, cap. 33, on the attainder in 1746 of one of the heirs of entail, nothing passed to the Crown but the life interest of the attainted heir, and that on his death the estates reverted to the heirs nominated in the deed. The action was dismissed (the House of Lords aff.) on the ground that it was essential to the plea stated that the deed of entail should be recorded, which had not been done.
A second action was then brought founding on a Crown charter following upon the above-mentioned procuratory of resignation, and containing a provision that on the attainder of any of the heirs of entail the estate should revert to the next heir in succession. It was maintained that the charter was a fresh grant importing a new title apart from the entail.
Held ( aff. judgment of Court of Session) (1) that the sole warrant for the charter being the procuratory of resignation, it was a mere charter by progress, the conditions of which as founded upon could not be held to affect the superior's right, and could have no such result as was contended for; and (2) that the terms of the entail, and the history of the title following upon these down to the date of the attainder, further precluded the action.
Observed by the Lord Chancellor that even if the charter had been an original royal grant it was doubtful how far it would have protected a subject from the constitutional consequences of an attainder for high treason.
In an action dealing with the right to the Perth estates, finally decided by the House of Lords on June 19, 1871, 9 Macph. (H. of L.) 83 (reported in the Court of Session, March 11, 1869, 7 Macph. 642), Lord Perth unsuccessfully founded upon a deed of entail dated 11th October 1687, but which was not registered in accordance with the Act of 1690, cap. 33. He thereafter raised another action relating to the same matter, in which he relied upon a Crown charter of 17th November 1687, contending that it was a fresh grant from the Crown, and that as it contained a clause shifting the estate upon the treason of any holder to the next in succession the Act of 1690 as to registration was inapplicable.
By the terms of that charter James Lord Drummond, the first heir of entail called under the deed, was not restricted from disponing, and in 1713 did dispone, in favour of his son, all the fetters in the charter being omitted. Again, in 1731, the third Duke of Perth expeded a Crown charter of resignation and novodamus in favour of himself and the heirs-male of his body, whom failing his other heirs and assignees whomsoever. In this charter, on which infeftment followed, all restricting and fettering clauses were omitted. Upon that state of the titles the respondents urged that the estates were held in absolute fee-simple, and the heir-apparent, Lord John Drummond, being attainted, that the Crown became entitled to the estates. The Second Division of the Court of Session, on 9th March 1875, 2 Rettie 538, decided that although they could not sustain the plea of res judicata, as the Lord Ordinary (Young) had done, yet that, as the new grounds of action were not relevant to support the pursuer's title to call for production of the writs specified, they must dismiss the action upon that ground.
The pursuer appealed to the House of Lords.
Their Lordships did not call on the. respondents' counsel.
On delivering judgment—
The Lord Ordinary, before whom the present case was first discussed, was of opinion that the whole of the claim of the appellant in the present action was covered by what was decided in the former action, and was in fact res judicata. The Second Division of the Court of Session differed from the Lord Ordinary, in so far that they held that the whole of the claim of the appellant was fact res judicata, but they found that the media concludendi on which the present summons proceeds, in so far as the same differ or are maintained to be different from those on which the former action was founded, are not relevant or sufficient to support the appellant's title to call for production of the writs specified in the summons. The Lord Advocate, appearing for the appellant at your Lordships' bar, stated very distinctly the points which he considered were not concluded by the judgment in the former action, and the question comes simply to be one of relevancy—whether, taking those points, they are sufficient to support the appellant's title?
The first point in the case of the appellant arises in this way:—In the former action the appellant founded upon a deed of entail created by
Page: 259↓
In order to avoid this difficulty, the appellant in the present action founds, not upon the Chancellor's own deed, the procuratory of resignation of the 11th October 1687, but on the Crown charter that followed that procuratory of resignation, the date of which Crown charter is the 17th of November 1687; and he argues that this is to be looked at as a fresh grant from the Crown, and that as it contains a clause shifting the estate upon the treason of any holder to the next in succession, he can get rid of the consequence of the attainder without resorting to the Act of 1690.
If the charter of the 17th of November 1687 had been an original royal grant, it would have become necessary for your Lordships to consider whether a clause in a grant from the Sovereign, even at that date, protecting the subject from the constitutional consequences of his attainder for high treason, could be valid, and, speaking for myself, I should have required much stronger authority than any which was produced to satisfy me of the validity of such a clause. But, my Lords, your Lordships are, I think, relieved from any difficulty which might attend the decision of that question, for I entirely agree with the Lord Justice-Clerk and the other learned Judges of the Court of Session, that the charter of 1687 was not, and was not intended to be, an original royal grant—it is nothing more than a charter by progress. As Lord Gilford says, “Its sole warrant is the procuratory of resignation, which prescribes its terms—the Crown, like any other superior, will insert in a charter by progress any conditions which the owner pleases, not affecting the superior's rights.” The entail is never the act of the superior, but the act of the vassal or procurator, who alone has the right, if he chooses, to entail the lands in accordance with law. The clause of novodamus does not in the least alter the nature of the deed, but is merely inserted to meet the case of lost title-deeds, or of doubts as to validity of the title, and to form the foundation for a new and prescriptive right.
My Lords, this alone would be sufficient to dispose of the appellant's case, for if he fails in separating the charter of 1687 from the procuratory of resignation, the entail must stand on the procuratory of resignation of the 11th of October 1687, as to which it is res judicata by this House that the appellant cannot claim under it because the entail is not recorded.
But even supposing that the appellant had escaped from this difficulty, he would have been met by another, and, as it appears to me, a fatal impediment in his way. Assume that the entail of 1687 is to stand upon the Crown charter of the 17th of November of that year, and assume also that the clause in the charter shifting the estates in the event of treason is a valid clause, what was the history of the title between 1687 and 1746, when the attainder of Lord John Drummond took place? The first destination of the entail was to James Drummond, the son of the Chancellor, and the heirs-male of his body, and this destination is not fenced by prohibitory, irritant, or resolutive clauses. The institute James Lord Drummond was therefore left unfettered to dispone and contract debt as he thought proper. Availing himself of this liberty, James Lord Drummond, the fifth Earl, in 1713 executed a disposition of the estates in favour of his son James, reserving his own liferent, and in this disposition all the restrictions and fetters contained in the charter of 1687 were omitted. Again, in 1731 James the Third Duke of Perth, who was then in right and possession of the estates, expede a Crown charter of resignation and novodamus in favour of himself and the heirs-male of his body, whom failing his other heirs and assignees whomsoever, and in this charter, again, on which infeftment duly followed, all restricting and fettering clauses were omitted.
The result is, that at the time of the Rebellion of 1745 James Third Duke of Perth stood in this way absolute and fee-simple proprietor, unfettered and unrestricted, although there was a simple destination in favour of heirs-male. He died without issue, his heir-apparent being his brother John, who was attainted as on the 12th of July 1746, and the right of the Crown to all the estates held by John in apparency has already been decided. This again is fatal to the case of the appellant.
My Lords, although the printed documents connected with this case are voluminous, the questions upon which the title of the appellant depends, and to which I have called your Lordships' attention are capable of being stated in a few words, and are in my humble opinion entirely free from doubt. There was no difference of opinion in the learned Judges of the Court of Session, and after your Lordships had heard at your bar the very able counsel on behalf of the appellant—who advanced in support of the appellant's case everything that could be said—your Lordships did not, I think, entertain any doubt as to the decision at which you ought to arrive. At the same time, looking to the importance of the case to the appellant, and to the magnitude of the interests involved, you deemed it more fitting, after having fully heard the appellant's case, to examine minutely and carefully the documents, the pleadings, and the judgments in the Court below. Your Lordships have now done this, and I believe that in none of your Lordships'
Page: 260↓
Interlocutor appealed from affirmed, and appeal dismissed, with costs.
Counsel for Appellant—Lord Advocate ( Watson)—Davey, Q.C.—Low—Pollock. Agents— Willoughby & Cox, Solicitors.
Counsel for Respondents— Benjamin, Q.C.— Balfour. Agent— W. A. Loch, Solicitor.