Scottish Court of Session Decisions

In 1820, the late Robert Carrick of Braco executed a deed of entail of the lands of Burnhead, by which he disponed them “to and in favour of Thomas Carrick, junior, son of Thomas Carrick, residing at Balmeno near Bucklyvie, and the heirs-male of the body of the said Thomas Carrick, junior; whom failing, to David Buchanan of Drumpellier, Esq., and the heirs-male of his body; whom failing,” certain other heirs-male and female; “whom failing, to my own heirs whomsoever, and their assignees.”

The deed contained a complete set of prohibitions, all of which were expressly laid on the institute, nominatim, as well as on the heirs of entail. It subsequently contained the following clause:—“Secondly, That in case the said Thomas Carrick, junior, or any of the heirs of tailzie and heirs whatsoever, who shall succeed to my said lands and estate, shall contravene any of the conditions, provisions, restrictions, limitations, and others herein contained, or to be contained in any writing hereafter to be executed by me, or any of them, that is, shall fail or neglect to observe, obey, and perform the said several provisions and conditions, and every one of them, or shall act contrary to the prohibitions, restrictions, and limitations, or any of them, contained in this deed of tailzie, or to be hereafter added and appointed by me (excepting as is herein after excepted), that then, and in any of these cases, the person or persons so contravening, by failing to obey the said conditions, or any of them, or acting contrary to the said conditions, provisions, prohibitions, restrictions, and limitations, or any of them shall, for him or herself only, ipso facto, amit, lose, and forfeit all right, title, and interest to the said lands and estate above described, and the same shall become void and extinct, and my said lands and estate shall accresce, devolve, and belong to the next heir-male general, or of tailzie appointed to succeed, albeit descended of the contravener's own body, in the same manner as if the contravener were naturally dead; and upon every such contravention, failure, or neglect, it is hereby expressly provided and declared, that not only my said lands and estate shall not be burdened or liable to the debts and deeds of the several heirs of tailzie and heirs whatsoever, as before provided, but also all debts, deeds, and acts contracted, granted, or done contrary to these conditions and restrictions, or to the true intent and meaning of these presents, shall be of no force, strength, or effect, and shall be ineffectual and unavailable against the other heirs of tailzie, and heirs whatsoever succeeding to my said lands and estate, and that the said heirs, as well as the said lands and estate, shall noways be burdened therewith, but shall be free therefrom, in the same manner as if such debts, deeds, or acts had never been contracted, granted, or done; and also it shall be free and lawful to every heir who shall have a title by or through every contravention of a former heir.”

After the death of the entailers in 1821, Thomas Carrick, junior, son of Thomas Carrick residing at Balmeno, who was heir-at-law of the entailer, and who had been erroneously designed in the entail as “George Carrick, junior, son of George Carrick residing at Balmeno,” obtained a declarator that he was the institute truly intended by the deed; and he was infeft as institute. He had daughters, but no male issue, and being advised that the entail was defective, he executed a mortis causa disposition of the estate in favour of his daughters, Miss Jane Carrick, and Mrs Carrick or Drysdale. He died in 1836, after which his daughters were infeft under his disposition. Robert Carrick Buchanan of Drumpellier, the next substitute heir, under the entail of Robert Carrick of Braco, raised a reduction of the disposition of Thomas Carrick, junior, and of the infeftment under it, 1st, On the ground that the entail was complete in all its essentials, and that the disposition was ultra vires of Thomas Carrick, junior; and 2d, That, even if the entail was defective in its irritant provisions, it was complete in its prohibitions, and as the deed of Thomas Carrick, junior, was gratuitous, it was reducible under 1621, c. 18, at the instance of the next substitute heir of entail, in virtue of the jus credit arising out of the destination in his favour, fortified by express prohibitions.

Pleaded by the defenders—

The clause of irritancy declared that “upon every such contravention, failure, or neglect, it is hereby expressly provided and declared, that not only my said lands and estate shall not be burdened or liable to the debts and deeds of the several heirs of tailzie and heirs whatsoever, as before provided, but also all debts, deeds, and acts contracted, granted, or done contrary to these conditions and restrictions, or to the true intent and meaning of these presents, shall be of no force, strength, or effect, and shall be ineffectual and unavailable against the other heirs of tailzie and heirs whatsoever succeeding to my said lands, &c.” Thus, although the words “such contravention” reached the deed of the institute, as well as the heirs of entail, it was only as to the “debts and deeds of the heirs of tailzie and heirs whatsoever” that the estate was declared to be unaffected by them. The estate was therefore left open to be affected by the deeds of the institute. And, if this construction was correct, the clause which immediately followed, annulling “all debts, deeds,” &c., would be unavailing, as it merely annulled them if “done contrary to these conditions and restrictions, or to the true intent and meaning of these presents.” And, if the previous words did not expressly irritate the deed of the institute, these last words could not do so, since they merely referred back to the conditions previously expressed. This construction was farther fortified by the provision, at an after part of the clause, that the said acts, deeds, &c, should be “ineffectual and unavailable against the other heirs of tailzie, and heirs whatsoever;” which was just a repetition that they were irritated only as to heirs, and not as to the institute. The acts and deeds of the institute were therefore good as to himself, and consequently as to his disponees.

2. If the entail was incomplete in the irritant clause, it was settled by recent decisions, that it was competent to alter it by a gratuitous deed. ¹

The pursuer answered. 1. The entail was somewhat irregularly framed, but it contained all the essentials of a strict entail. The prohibitions were complete, and were expressly laid on the institute as well as the heirs. The resolutive clause applied expressly to the institute as well as the heirs. And it was immediately after resolving the right of institute or heir, alike, upon any contravention, that the deed declared, that “upon every such contravention, failure, or neglect, it is hereby expressly provided and declared, that not only my said lands and estate shall not be burdened or liable to the debts and deeds of the several heirs of tailzie and heirs whatsoever, as before provided, but also all debts, deeds, and acts contracted, granted, or done contrary to these conditions and restrictions, or to the true intent and meaning of these presents, shall be of no force, strength, or effect, and shall be ineffectual and unavailable against the other heirs of tailzie, and heirs whatsoever succeeding to my said lands and estate, and that the said heirs, as well as the said lands and estate, shall noways be burdened therewith, but shall be free therefrom, in the same manner as if such debts, deeds, or acts had never been contracted, granted, or done.” This contained a redundancy of irritant matter, part of which, however, was broad and comprehensive enough; as it declared, after treating of any contravention by either the institute or the heirs, that “all debts, deeds, and acts contracted, granted, or done contrary to these conditions and restrictions, or to the true intent and meaning of these presents, shall be of no force, &c.,” and “the lands and estate shall noways be burdened therewith, &c.,” These words irritated every deed of the institute as well as the heirs, and there was nothing in the redundancy of the context to prevent them from doing so.

2. Even if the irritant clause were defective, the prohibitions were complete, and the deed of Thomas Carrick, Jun., being gratuitous, was

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¹ Sharpe, April 18, 1835. 1. S. and M'L. 594, Speid, Feb. 21, 1837 (ante, XV. 618).

reducible at the instance of the pursuer in virtue of his jus crediti as next heir of entail. ¹

The Lord Ordinary found “that the disposition under reduction, executed by the late Thomas Carrick, on 9th October, 1835, falls under the prohibitory, resolutive, and irritant clauses of the deed of entail executed by the deceased Robert Carrick, Esquire, in favour of the said Thomas Carrick, under which the latter succeeded to, and possessed the estate libelled on, from the period of the entailer's death in 1821, till his own death in 1836; Therefore reduced, decerned, and declared in terms of the libel: found expenses due to neither party, and decerned.” ^*

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¹ 2 St. 3, 59. 3 Ersk. 8, 23.

^* Note.—“This is a reduction of a settlement on the ground that the maker was restrained, by a strict tailzie under which he took up and possessed the lands, from alienating or altering the order of succession.

The plea of the defender is founded on the supposed imperfection of the irritant clause in the original tailzie, which is said to be directed only against the acts and deeds of heirs, and not against those of the institute. But it appears to be impossible to read the various members of the clause in question, and to hold it of the limited nature thus contended for.

On the contrary, the irritant clause in question seems to be unusually full and comprehensive almost to a degree of redundancy. It consists of different sections, one or other of which renders void every possible act of any party taking up the estate under the tailzie. Thus, (1.) it commences with declaring, that ‘upon every such contravention’ (which referred specially to the possible contravention of the institute) ‘not only my lands and estate shall not be burdened or liable to the debts and deeds of the several heirs of tailzie, and heirs whatsoever, as before provided.’ After which the clause proceeds with this proviso, (2.) ‘but also all debts, deeds, and acts contracted, granted, or done contrary to these conditions and restrictions, or to the true intent and meaning of these presents, shall be of no force, strength, or effect;’ and, (3.) ‘shall be ineffectual and unavailable against the other heirs of tailzie, and heirs whatsoever, succeeding to my said lands and estate; and that the said heirs, as well as the said lands and estate, shall no ways be burdened therewith, but shall be free therefrom,’ &c. &c.

It would, it is thought, be denying effect, not only to the obvious meaning of the entailer, but to the most express words used in the last members of the clause, not to hold them as reaching acts of contravention by the institute.

But even, if the irritant clause were held defective, the Lord Ordinary has great doubt if the settlement under reduction could be supported. It will be observed, that this was to all intents a mortis causa deed: For it is admitted on record (see answers to article 9th) that it never was delivered during Thomas Carrick's life, and no onerous cause is instructed, or even averred.

The present case, therefore, even if the irritant clause were defective, would fall within a class noticed by all the institutional writers on Scots law, of a destination fortified by a prohibitory clause; and it would deserve mature consideration whether such a destination could be altered by a mortis causa deed executed by one of the heirs, and not delivered, and not to take effect till his death.

Both Lord Stair (B. II. tit. 3, § 59), and Mr Erskine (B. III., tit. 8, § 23), lay it down that such a destination cannot be altered gratuitously; and the same doctrine is said to have been recognised in one of the branches of the Roxburgh cause when Lord Eldon was Chancellor.

“No doubt the older authorities on this question may be supposed shaken by the latter cases of Hoddam and Speid, in which it was found that heirs possessing under entails with defective irritant clauses, might make even gratuitous alienations.

Still the gratuitous alienations found competent in these cases appear only to have been donations bona fide, made by deeds inter vivos. There has been no case as yet reversing, the doctrine laid down by all the authorities in our law for upwards of a century, and declaring that a substitution fenced with a prohibitory clause can be gratuitously altered by one of the heirs in a mortis causa deed. This, however, is the nature of the deed under reduction in the present case.

“As this last point will come under consideration of the Court in considering a question on the Strathbrock entail lately decided by the Lord Ordinary, the two cases should be brought before the Inner-House at the same time.”

The defenders reclaimed.