Scottish Court of Session Decisions

This was an application for authority to charge an entailed estate with debt under the following circumstances:—The petitioner's father, the late Colonel Matthew Macalister of Barr, in the year 1813 executed a bond of provision for £6000 in favour of his wife in liferent, and his only son Keith in fee, payable after the granter's death. This deed contained clauses reserving power to revoke, and dispensing with delivery. In 1829 the Colonel, who held the estate of Glenbarr in fee — simple, executed a deed of strict entail in favour of himself in liferent and of the petitioner, his only son, and the heirs whomsoever of the petitioner's body in fee; whom failing, a series of substitutes therein specified. The deed contained, inter alia, the following clauses:—“And also to render this taillie and settlement the more effectual, I hereby bind and oblige me and my heirs-at-law, executors, and successors whomsoever, to free and relieve my lands and estate before disponed, and the heirs named and to be named to succeed thereto, of and from the payment and performance of all the debts and obligements to which I for myself, or as representing any of my ancestors, am or shall be liable, and of and from all claims and demands whatever whereby the said lands and estates, or any part thereof, may be evicted or affected. And I hereby revoke and recall all former deeds of entail and settlements, or other conveyances of any of the said taillied lands executed by me, excepting always the provisions executed or to be executed by me in favour of my spouse.”

The Colonel died in the same year, after having executed the deed. His general executry, which was considerable, was applied almost entirely in payment of a large debt incurred on a cautionary obligation, and there was not enough to pay the bond.

In terms of a remit from the Lord Ordinary, Mr Webster, S.S.C., reported on the application; and after hearing parties, his Lordship reported the case to the Inner House with a note, on account of the importance of the case, and the difficulty raised.

The case was argued fully on Wednesday, and the Court delivered judgment to-day. In support of the petition it was mentioned that the bond of provision constituted a valid and effectual debt against the granter on account of the nature of the deed; that the clause of revocation in the deed of entail did not apply, as it was only directed against “all former deeds of entail, and settlements or other conveyances of any of the said taillied lands,” and did not extinguish or revoke the bond, which was a personal obligation; further, that the clause above quoted as to burdening the heirs with an obligation to relieve the estate of all debts which might be made to affect it, was intended against the maker of the deed himself and his general estate apart from the entailed lands; and lastly, that the debt was not extinguished confusione, because although the petitioner was the grantee in the bond as well as institute in the entail, the two characters were quite different.

The Lords President, Curriehill, and Ardmillan thought the question raised was attended with very great difficulty, but were of opinion that both deeds being mortis causa, the Colonel's intention and desire was that the entailed estate should not be burdened with any provision such as this. They considered the bond a good obligation against the general estate, but not against the entailed lands which had been destined specially.