Scottish Court of Session Decisions

The late John, Karl of Galloway, executed, in 1804, a deed of entail of the lands of Garlies and others; in 1819, after his decease, his trustees executed an entail of the lands of Boldron and others; and in 1826 his son George Earl of Galloway, executed a third deed of entail, embracing other lands, which had been held by Earl John on apparency, or on personal titles. In the two last entails, the destinations, conditions, and limitations were, with certain variations as to provisions to wives and children in the second entail, identical with those in the first and leading entail, and were secured in the same manner. The deeds were duly recorded. Titles were made up separately by Earl George under these several deeds to the estates embraced by them. Thereafter, in 1827, he granted, in favour of himself and the other heirs of entail, a disposition of all the lands in the three entails, on the narrative that the destinations and conditions in each were identical, and that “it had been deemed expedient that he should grant the said disposition, for the purpose of bringing the whole lands and other heritages contained in the said three several deeds of entail under one deed, not only for the purpose of facilitating and rendering less expensive the completing of the titles thereto of the heirs of entail succeeding to him therein, but also in order that the same might form a title of possession, collateral and accessorial to the said several deeds of entail, for strengthening and supporting the same, and also in so far as not inconsistent with the said deeds of entail, that the said disposition might thereafter form a leading title and investiture of the said entailed lands and estates.”

Earl George having died in 1834, the pursuer Randolph, Earl of Galloway, his son, expede a general service as nearest and lawful heir-male of tailzie and provision to him, in terms of the three several deeds of entail, and also as nearest and lawful heirs-male of tailzie and provision, in terms of the disposition in 1827. Having thus acquired right to the unexecuted procuratory and precept in the disposition, he was infeft upon the precept in the whole lands therein contained.

Thereafter Earl Randolph raised action against his son Viscount Garlies, and the other heirs of entail under the deeds above-mentioned, upon the narrative, of the said deeds of entail and disposition, and of his general service and infeftment, and farther stating “that he has completed or is about to complete his titles to the whole of the said lands, by virtue of a charter of confirmation, under the Union seal, of the whole lands held of the Crown as superior, and also by charters of resignation or confirmation from the different subject-superiors of those parts of the said entailed lands held under such subject-superiors respectively, according to the state of the titles,” &c. subsuming that it was necessary to ascertain the validity of the titles so about to be completed; and concluding to have it found and declared “that the said pursuer was entitled and bound to make up titles in terms and by virtue of the said disposition by the said George Earl of Galloway; and that the titles in his person, thus completed and made up by him, or about to be completed and made up by him as heir of tailzie and provision under the said disposition, and also as heir of tailzie and provision under the said three several deeds of entail by the said John Earl of Galloway, by the trustees of the said John Earl of Galloway, and by the said George Earl of Galloway, are good, valid, and effectual titles, although the series and destination of heirs of entail, and the conditions, provisions, restrictions, limitations, exceptions, clauses irritant and resolutive, declarations, and reservations which are precisely the same in the said three several deeds of entail, have only been inserted once, and have not been repeated in reference to the several different lands specified and contained in the said respective deeds of entail;” and farther, to have it found and declared “that the titles thus completed in the person of the pursuer shall not be held to be inconsistent with or prejudicial to the deed of entail by Earl John, but that they shall be used as additional and accessorial titles to the said lands, for strengthening and supporting such deed of entail, and for no other purpose; and lastly, that the other heirs of entail (named) have no right or interest to object to any of the deeds executed by Earl George or Earl Randolph, nor to the titles that have been or shall be completed in the person of Earl Randolph, but that the same have been so executed and completed for the benefit of the entailed estate, and of the heirs succeeding thereto.”

Defences were put in by Lord Garlies and his uncle, the honourable Montgomerie Stewart, in which, while allowing that the mode proposed by the pursuer of completing his title under the entails to the lands therein described would, if competent, considerably simplify the title to these lands, and thereby be the means of saving expense to the pursuer and future heirs of entail, they submitted that the proposed method would be contrary to the provisions of the act 1685. They maintained, therefore, (in point of form), that the pursuer was bound by law to repeat, in all the titles to be expede by him, the whole of the conditions and irritant and resolutive clauses as applicable to the several sets of lands contained in each of the three entails.

The Lord Ordinary, at the desire of parties, reported the cause on cases, in which it was contended by the pursuer, on the authority of the Gartmore case, ¹ that, under the titles now proposed to be completed, there was a reference throughout to the three several entails, both in the dispositive clause, and in the quæ quidem; each set of lands being pointed out by the deed, so that the extent to which a contravention would operate was distinctly definable; and, therefore, as the conditions and provisions of the three entails were substantially identical, the rule quod singula singulis sunt applicanda might properly be applied in the construction of the title to be made up under the disposition of

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¹ Bontine v. Graham, June 12, 1835 (ante, XIII. 905).

Earl George, by the charter of confirmation from the Crown, and the charters of resignation or confirmation from subjects-superiors.

By the defender it was contended, on the other hand, that, in making up titles under the entails in question, the rule of strict construction must be applied, and the course directed to be pursued by the several deeds of entail, each forming the lex feudi of the particular estate embraced by it, must be expressly and unequivocally followed; ¹ besides, that the present action was of the nature of a call upon the Court to give their opinion as to how the pursuer's titles should be made up, and to decide a question, for raising which there were no proper terms, a mode of proceeding of which the Court disapproved. ²

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¹ Speid v. Speid, Feb. 21, 1837 (ante, XV. 618), Opinion of Lord Gillies, p. 623.

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² Murray v. Murray, May 21, 1833 (ante, XI. 629).