United Kingdom House of Lords Decisions

I do not refer to the discussion by the learned Judges in the First Division of the origin and meaning of propulsion in the law of Scotland. The doctrines there laid down have not been disputed at the Bar. And whatever view had prevailed on that subject, it would not have altered my opinion as to the construction and effect of the Act of 1853. To my mind the principles acted upon by this house in the Duke of Northumberland's case in 1905 would furnish authority for this case, if authority were needed.

Lord Robertson—In my opinion the appellant is liable under the 15th section of the Act of 1853. To me it is clear that he had a “title” to this “succession,” capable of being “accelerated”; that this title was accelerated by the deed of propulsion, and that by that deed his father extinguished his own “prior interest.”

The media upon which I proceed are few and simple; and the case admits of brief discussion. I say this, because the very elaborate examination of the history of deeds of propulsion contained in the judgments of the First Division has given to the controversy an appearance of complexity which does not belong to it. It is perfectly clear law, that deeds of propulsion are within the powers of heirs of entail, and in particular that this deed of propulsion was legal. As to its effect, the deed tells its own story, so far as is necessary to support the judgment under review. On its face it vests the appellant with the fee of the estate, subject to the conditions of the entail. That it could not have done otherwise is of course perfectly true; but this does not advance the present argument.

Well now, what was the character of the right which the appellant held before he got the deed of propulsion? It is a serious understatement of his rights to say that he had a mere spes successionis. He was the eldest son of his father and the next heir designated by the original deed of entail. He had, therefore, a jus crediti to enforce the conditions of the entail; and the lands could not be disentailed without his consent, or without his interest being valued and paid for. His title, however, was, in its nature, one to take the estate at some time in the future. It seems to me, therefore, that he had such a title as falls within the terms of section 15 and was capable of being accelerated. That it was accelerated by the deed of propulsion is certain, for by it he got the estate, more than thirty years before the death of his father. So far as the father's interest in the estate was concerned, the statutory word “extinction” describes the result with precise accuracy, and the word “interest,” while aptly applied to inferior rights, is sufficiently comprehensive to include the rights of an heir of entail in possession.

It was urged that the disentail which followed, and the onerous conditions which preceded the deed of propulsion, alter the result. Now, so far as the disentail is concerned, it did not affect the destination in the old entail; that destination stood unaltered and was the governing destination at Lord Buchan's death; and the appellant, but for the deed of propulsion, would have made up his title under that destination.

So far as the terms of the family arrangement go, I do not see how they affect the result. The essential fact is that, in the sequel, the appellant got the estate. I do not see that it would be better or worse if the arrangement had been made for the benefit of the appellant, or of both father and son.

Lord Collins—I agree.