Scottish Court of Session Decisions

This was the second action brought by the pursuer for the purpose of having the entail of the estate of Dundonnell set aside, and of having it found that the late proprietor, Hugh Mackenzie, validly conveyed that estate by his testamentary writings to trustees, for behoof of the pursuer's late wife, Mrs Mary Mackenzie or Catton, in whose right the pursuer now stands.

In the first action the objections to the validity of the entail were confined to alleged defects in the deed of entail itself, and then, assuming the invalidity of the entail, the pursuer and his wife concluded that the estate was effectually conveyed by Hugh Mackenzie's trust-disposition and settlement.

In this first action a great deal of litigation took place, both in this Court and in the House of Lords. On 7th June 1870 the Lord Ordinary ( Lord Mackenzie) repelled the whole pleas in law for the pursuers, and assoilzied the defenders from the whole conclusions of the action; but he explained in his note that he did so on the ground that the entail was a valid and subsisting entail; that the objections to the deed of entail were groundless; and that therefore Hugh Mackenzie's trust-disposition did not operate as a conveyance of the estate or interfere with the destination in the deed of entail. The Lord Ordinary did not find it necessary to consider whether, supposing the deed of entail to be invalid or defective in its fetters, Hugh Mackenzie's trust-deed was sufficient to carry the estate, which on that supposition he would have had power to convey.

Lord Mackenzie's interlocutor was taken to review to the First Division, and on 19th July 1870 the First Division recalled Lord Mackenzie's interlocutor of 7th June 1870; sustained only the second and third pleas for the defenders; and of new assoilzied the defenders. The grounds of this judgment, as appears from the pleas sustained, and from the opinions of the Judges ( 7 Scot. Law Rep. p. 687) were, that whether the entail was valid or not, Hugh Mackenzie's trust-disposition was not sufficient to convey the estates, that is, even assuming that Hugh Mackenzie had power to do so. The Judges of the First Division gave no opinion as to whether the objections to the entail were or were not well-founded, or whether the entail was a valid and effectual entail or not.

The case then went to the House of Lords, and on 11th March 1872 the House of Lords recalled the interlocutor of the Inner House, except as to expenses, and affirmed the original interlocutor of Lord Mackenzie ( 9 Scot. Law Rep. p. 425). The judgment of the House of Lords, although disposing of the whole case, proceeded exclusively upon the ground that the deed of entail was in all respects valid and effectual, and this being so, they found it unnecessary to decide the purely speculative question whether, supposing the deed of entail defective, Hugh Mackenzie's settlement was sufficient to carry the lands. The House of Lords therefore recalled the judgment of the Inner House, and simply returned to the judgment of the Lord Ordinary.

The present action had, like the former one, two branches. It first sought to declare the entail invalid, not in respect of defects in the deed of entail itself, for that is completely excluded by the judgment of the House of Lords, but in respect of alleged erasures and interpolations occurring in the Crown Charter of 1842, which followed upon the deed of entail, and then, assuming that the entail was set aside upon this new ground, it repeated or renewed the declarator contained in the former action, that the estate of Dundonnell was validly conveyed by Hugh Mackenzie's trust-deed and settlement.

The following are the averments with regard to the erasures:—First (Cond. 13), “Following the dispositive clause in the Crown charter, the disponee and series of heirs in whose favour the grant of the lands and estate of Dundonnell and others is made are set forth in the following terms, viz.: ‘Dilecto Nostro Hugoni M'Kenzie filio natu maximo procreat, inter Murdo Mackenzie Armigerum de Ardross vel Dundonnell et Christy vel Christian Ross ejus sponsam et hæredibus quibuscunq. ejus corporis Quibus deficien. Kennetho Mackenzie filio secundo diet. Murdo Mackenzie et hæredibus quibuscunq. ejus corporis Quibus deficien. Roberto Mackenzie filio tertio dicti Murdo Mackenzie et hæredibus quibuscunque ejus corporis Quibus deficien.’” The words and letters in italics were alleged to have been written on an erased portion of the deed,

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and it was averred—Second, (Cond. 14) that “The appearance of the parchment or vellum indicates previous erasures in the deed at those parts of it where these words occur. The colour of the ink of these letters and words is of a darker hue than that of the surrounding context; they are written in a much smaller and more cramped character or style of penmanship, and their appearance proves that they were interpolated into the deed as aforesaid, that is, that they were introduced or inserted in the space or portion of it which they now occupy after the immediately adjoining context was written.” Third, (Cond. 17) “The portion of the prohibitory clause in the Crown charter applicable to the prohibition against altering the order of succession is thus expressed—'Cum et sub hac speciali limitatione et restrictione quod non licitum nec in potestate erit dict. Hugonis Mackenzie vel ejus hæredum vel ullius talliæ hæredum seu substitutorum supra specificat. innovare mutare vel infringere dict. talliam vel ordinem successionis … directe vel indirecte inferre possit, &c.’ The letters in of the said word indirecte have been interpolated into the Crown charter after the context in which they now occur was written. These letters are written in a much smaller and closer character or style of penmanship than those in the surrounding words of the deed, and an inspection thereof shows plainly that the word now standing indirecte in the above quoted clause of the charter was originally written directe, and that the letters in were subsequently interpolated— i.e., introduced or inserted into the space which then existed between that word and the immediately preceding word vel.” Fourth, (Cond. 19) “The irritant clause in the said lastmentioned deed is thus expressed, viz.—’ And it is also hereby expressly provided and declared that all the debts and deeds of the said Hugh Mackenzie or any of the heirs of entail, or either of them, contracted, made, or granted, as well before as after their succession to the foresaid lands and estate, in contravention of this present tailzie, and provisions, conditions, restrictions, and limitations herein contained, and all adjudications, or other legal executions or diligences that shall happen to be obtained or used against the fee or property of the said lands and estate, or any part thereof, upon the same, shall not only be void and null, with all that may or shall follow thereon, in so far as they might anyways affect the said lands and estate, but also the heirs of tailzie,” &c.

Pleas were stated for the defenders to the effect that the present action was wholly excluded by the judgments pronounced in the former one, but the Lord Ordinary repelled these pleas to the effect of admitting the present action to go on. His reason was that the objections to the Crown charter were not embraced in the former action, and were not in any way adjudicated upon, and although the conclusion as to the effect of the trust-deed was the same, the question raised by that conclusion was not decided by the House of Lords, and the judgment of the First Division had been recalled. The Lord Ordinary thereupon allowed a proof as to the alleged vitiations in the Crown charter, parties being at issue on various points connected therewith.

On the second branch of the case, namely, whether, assuming the defects in the Crown charter to be fatal to the entail, Hugh Mackenzie's trust-deed was sufficient to carry the lauds of Dundonnell, the pursuer raised the question, Whether he was entitled to a proof prout de jure of all facts and circumstances tending to show the late Hugh Mackenzie's state of mind and his intentions under his settlement. To raise this question the pursuer tendered an amendment of the record, being the minute No. 41 of process, and the Lord Ordinary, “under the very wide provisions of the Court of Session Act of 1868,” allowed the amendment to be added to the record, and heard parties fully on the pursuer's motion to be allowed a proof prout de jure of the averments contained therein.

On 10th June 1873 the Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 10 th June 1873.—The Lord Ordinary having heard parties' procurators on the motion of the pursuers to be allowed a proof pro ut de jure of the statements contained in the Minute of Amendment, No. 41 of process, and having heard parties on the whole cause, and having considered the closed record, proof adduced, and whole process, refuses the said motion: Finds, 1st, that the erasures, interpolations, and defects existing in and appearing on the Crown charter, No. 16 of process, do not invalidate the entail of the lands of Dundonnell and others, and did not free the late Hugh Mackenzie from the fetters of the said entail: Finds, 2d, that the trust-disposition and settlement of the said Hugh Mackenzie, dated 4th July 1854, and codicil thereto, dated 22d February 1864, are insufficient in point of law to convey the said lands of Dundonnell and others embraced in the entail thereof: Therefore sustains the defences, assoilzies the defenders from the whole conclusions of the libel, and decerns: Finds the defenders entitled to expenses, and remits the account thereof, when lodged, to the Auditor of Court to tax the same and to report.

Note ….—Having in view the procedure which took place in the former action, the Lord Ordinary thinks himself bound to decide both branches of the case. This was expressly demanded by the pursuer, and the Lord Ordinary has complied with the demand. Indeed, the defenders made no objections. It is true that a decision in favour of the defenders on either branch of the case would lead to absolvitor, but the Lord Ordinary cannot tell what view may be taken by the Courts of review, and he has therefore considered the whole pleas on record. He has come to the conclusion on both branches of the case that the pursuer's contention is ill founded, and that the defender is entitled to prevail.

I. The first question is, Do the erasures and interpolations which appear in the Crown charter of 1842 vitiate the entail, and in respect thereof was the late Hugh Mackenzie free from the fetters? The Lord Ordinary answers this question in the negative. He does so without much hesitation.

The case starts with the finally concluded and settled point that the deed of entail itself is in all respects perfect and unexceptionable. The entailer was Murdo Mackenzie, the father of Hugh Mackenzie, and it is now fixed that Murdo Mackenzie made a perfect and faultless deed of entail. The charter alleged to be defective is a charter not in favour of Murdo Mackenzie, the entailer, but in favour of Hugh Mackenzie, his son, the institute and the first person who took under the entail. Very shortly after the entailer's death Hugh Mackenzie took infeftment upon the charter in question.

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It is not alleged that there is any defect in Hugh's infeftment. The pursuer's sole ground of challenge is that the Crown charter in favour of Hugh Mackenzie is erased and vitiated in certain essential particulars. The Lord Ordinary repels the pursuer's pleas on the following among other grounds:—

(1) He thinks that Hugh Mackenzie was barred from founding upon defects in a title made up by himself, and for which he alone was responsible, and the pursuer, who claims to be Hugh Mackenzie's universal disponee, is subject to the same personal exception.

The entailer, Murdo Mackenzie, made a perect deed of entail. Nothing was omitted in it; nothing was defective or faulty. The destinations, the prohibitions, the fetters, are all complete. By that deed Hugh Mackenzie expressly and the whole heirs of entail are taken bound to possess the estate solely under the entail and on no other title, and to engross the whole destinations, prohibitions, and fetters in all charters and infeftments to follow thereon. This is the usual clause. Now the Lord Ordinary thinks it quite clear that Hugh Mackenzie could not himself transgress this obligation and then found upon his own default as voiding the entail. Creditors or third parties might be in a different position, but plainly a contravening heir could not found upon his own wilful contravention as voiding the entail, and that in a question with the next succeeding heir, for that is the position of the present argument. The case must be taken just as if this had been an action at the instance of Hugh Mackenzie to have it declared that by reason of the defects in the charter in his own favour, and upon which he himself had taken infeftment, he was free from the whole fetters of the tailzie. This would be extravagant. It would put it in the power of any heir of entail at pleasure to defeat the whole provisions of the deed. However defective the title made up by Hugh Mackenzie might be, he himself could not object thereto. If Hugh Mackenzie's title was really defective, he himself might have been compelled at the instance of the next heir to rectify it. It would be vain to answer in such an action that the defect vitiated the entail. In short, it is thought to be clear that an heir taking under a valid entail cannot by his own wrongful act make the entail invalid in a question with succeeding heirs.

Now, this is really enough to settle the whole question in the present case, for the Lord Ordinary holds that the Crown charter in favour of Hugh Mackenzie must be held as his deed, and he must be held responsible for any defects which may attach to it. No doubt the charter was expede and sealed during the life of Murdo Mackenzie, and it may be the agents acted on his employment. But it was taken for Hugh Mackenzie and for Hugh Mackenzie alone. Murdo Mackenzie never used the charter in any way, and although at one time he seems to have contemplated passing infeftment in favour of his son, he never did so, and the charter was found in Murdo Mackenzie's repositories unacted upon at the time of his death. If it was a bad charter, as it is said to be, Hugh Mackenzie had no right whatever to take infeftment upon it after his father's death. His duty was to get a good charter, and to expede a good infeftment on it—to complete a perfect title in terms of the entail. If he failed in his duty he cannot found upon his own failure as a ground for claiming the estate in fee simple.

(2) The erasures founded on by the pursuer do not, as occurring in the Crown charter, affect the validity of the entail.

The objection is, that although the deed of entail itself is perfect, yet essential clauses, by reason of the erasures, do not enter the investiture, and that, as this is required by the statute 1685, the entail is bad. There is no doubt that by the old law the provisions and fetters of an entail to be effectual must not only be contained in the entail itself, but must enter the investiture following thereon, and this is founded on the express provisions of the Act 1685, which declares that ‘such tailzies shall only be allowed in which the foresaid irritant, and resolutive clauses are insert in the procuratories of resignation, charters, precepts, and instruments of sasine;’ and again, in a subsequent part of the same statute, ‘if the said provisions and irritant clauses shall not be repeated in the rights and conveyances whereby any of the heirs of tailzie shall brook or enjoy the tailzied estate, the said omission shall import a contravention of the irritant and resolutive clauses against the person and his heirs who shall omit to insert the same.’ The effect of these provisions is illustrated by a great variety of cases, which, however, it is not necessary to examine, for in every case where the defect was sustained it consisted in the omission from the investiture of an essential prohibition or irritancy.

In the present case the erasures do not affect in substance any of the prohibitory or irritant clauses, for the Lord Ordinary thinks that the crowding of the letters in the word ‘indirecte’ is immaterial, and the omission of the words ‘upon the same’ does not affect the substance of the irritant clause. The erasures chiefly founded on occur not in the prohibitory, irritant, or resolutive clauses, but in the dispositive clause of the charter,—no doubt a most important and essential clause, but not the clause which the statute had in view in requiring publication in the investiture; for it was the safety of third parties, or creditors dealing with the heir in possession, which the statute chiefly regarded in requiring the provisions and limitations to enter the investiture. An error in a subsequent branch of the destination, subsequent that is to the calling of the heir in possession, would not, it is thought, affect creditors, and would not entitle creditors who are fully warned by the complete insertion of all the conditions and limitations, and clauses irritant and resolutive, to set aside the entail.

This is the case here. The conditions, limitations, and fetters are substantially complete in the charter, unvitiated and unerased. The erasure chiefly applies to the words calling the heirs of the body of Hugh Mackenzie, and the heirs of the body of Kenneth Mackenzie, the next substitute. It seems plain that the omission even of a whole member of the destination, it may be a remote member, occurring after the calling of the heir in possession, would not, in a question with creditors, affect that heir's right, and far less would entitle that heir himself to set aside the whole entail. If this view is well founded, this also would be a complete answer to the pursuer's challenge.

(3) The Lord Ordinary is of opinion that erasures occurring in a Crown charter, especially in a Crown charter by progress, not an original grant

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are not to be dealt with in the same strict manner as erasures occurring in a private deed, which is the sole expression of the intention, will, or contract of private parties. It was urged with great force by the defenders' counsel that a Crown charter is a privileged deed. It does not require the solemnities which are essential to the validity of private deeds by subjects. It is not subscribed by the Sovereign. It needs no testing-clause—no instrumentary witnesses—no insertion of the writer's name and designation—in short, none of the solemnities which a series of statutes have made essential for private deeds; the reason being that the Sovereign is not bound by any of these statutes, but executes Crown writs in her own imperial way. There seems to be no doubt of this and accordingly, the pursuer scarcely ventured to maintain that the charter was on its face bad. Still, of course, the charter must not be tampered with or vitiated after it leaves the Sovereign, and an ex facie vitiation must be accounted for, or shewn to have existed when the charter was sealed.

The Lord Ordinary humbly thinks it is competent to show this, and he thinks the defenders have completely succeeded in doing so. The whole warrants of the charter have been recovered, and they completely establish that the words which now appear on erasures are the only words which could have appeared, or for which there was any warrant. The signature, the chancery copy of the signature, the precept, and the recorded copy of the charter, are all perfect, and show no erasure whatever in the passages where erasures occur in the principal deed. This demonstrates that the principal deed could have been in no other terms than in those which now appear, and the erasure must have been to correct a clerical error, and not to alter the true terms of the deed. It is absolutely impossible that any other words than those which now appear could have warrantably occupied the place of the erasures.

The Lord Ordinary cannot lay out of view the proved practice in reference to erasures which prevails in the Chancery Office, and looking to the impossibility of fraud in a case like the present, he thinks it would be carrying the law of erasure much farther than it has hitherto gone to hold the charter in question as vitiated in substantialibus, and this not to the effect merely of requiring a new one, but to the effect of absolutely voiding the whole entail. None of the cases referred to in argument appear to be in point. The nearest case is that of Adam v. Drummond, June 12, 1810, F.C., where in an election case a word written on an erasure in a Crown charter of confirmation was held pro non scripto, but the charter was sustained as a good confirmation, creating the vassal a freeholder—but this case does not support the contention of the pursuer.

On the whole, the Lord Ordinary repels the objections founded on the alleged vitiations in the Crown charter.

II. The second great question is, Whether Hugh Mackenzie's trust-disposition and settlement is sufficient to carry the estate of Dundonnell, supposing Hugh Mackenzie himself, by reason of the erasures in the Crown charter, to be free from the fetters of the entail? Of course this question only arises in case it shall be found that the Lord Ordinary is wrong in the view which he has taken of the first branch of the case.

Now, this is the very question which was decided, and unanimously decided, by the First Division in the former action, and although the judgment of the First Division was in point of form recalled by the House of Lords, it was not recalled because the Court of last resort thought the judgment erroneous, but because they decided the case upon another ground. The judgment therefore although not binding as res judicata, is as binding as an authority can be, and the Lord Ordinary would not hold himself entitled to pronounce any other judgment than a judgment in conformity therewith. The grounds of that judgment seem entirely satisfactory, and, at all events, it can only be reviewed by the First Division themselves, or by the House of Lords.

The Lord Ordinary may perhaps be allowed to refer to the recent decision of the House of Lords in the case of Glendonwyn v. Gordon (reported, Court of Session, 20th July 1870, 8 Macph. 1075), decided House of Lords 19th May 1873. The decision of the Court of Session was affirmed, and the general ground of judgment appears to have been that a subsisting special destination is not evacuated by mere words of general conveyance per se, even when the maker of the general conveyance has power to evacuate the destination. If this be so, the judgment in Glendonwyn v. Gordon is applicable to the present case, for even if the fetters of the entail were bad, it would still remain a special destination, which would require more than a mere general conveyance to evacuate. The pursuer's Counsel (Mr Duncan), indeed, made a most chivalrous attempt to use the vitiated Crown charter as an effectual recal of the special destination in the perfect and unchangeable deed of entail. But however ingenious this attempt was, it is impossible to sustain it for one moment, and therefore Glendonwyn's case is a direct authority in the present.

There only remains to notice the pursuer's new averments contained in his amendment of the record, and his demand to be allowed a proof of these averments prout de jure. In substance, the pursuer avers that the late Hugh Mackenzie intended to convey Dundonnell to Mrs Catton, and he asked to be allowed to prove this intention in every way, even by parole proof of expressions and statements of the late Hugh Mackenzie.

If the proof sought had been limited to Hugh Mackenzie's proper writ, and writ subsequent in date to his deed of settlement, there might have been some nicety. Or if there had been any disputed facts—such as Mrs Catton's relationship to Hugh Mackenzie—the fact that she was his daughter, or any similar fact—there is some authority for supporting the competency of such a limited inquiry. But no such case arises here The pursuer frankly and candidly admitted that what he sought to prove was the intention of the late Hugh Mackenzie, and he proposed to prove this by the whole history of Hugh Mackenzie's acts, and even of his sayings.

The Lord Ordinary thinks the proof thus asked is incompetent. The only mode of proving the intention of a testator is by his testamentary deed or writ, and any proof which has been allowed in such cases has been limited to the identification of a legatee, or of the subject-matter of a legacy, or of such extrinsic facts and circumstances as might be necessary to put the Court in the position of the testator, so as to enable the Court to read his words aright. The observations of the Lord Chancellor

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in the recent case of Glendonwyn (if the newspaper reports can be relied on) strongly point to the same conclusion.

On both branches of the case, therefore, the Lord Ordinary has come to the same result, that the defenders must be assoilzied.”

The pursuer reclaimed to the First Division of the Court, and, on the first branch of the case, argued—(1) The words in the Crown charter, which are superinduced or written on erasures, or interpolated as above condescended on, must be held pro non scriptis, and, being so held, the provisions and clauses prohibitory, irritant, and resolutive in the procuratory of resignation and alleged tailzie are not inserted or repeated in the investiture following thereon, in terms of the Act 1685, c. 22. (2) In consequence of the non-insertion or repetition of these provisions or clauses, or of one or other of them, as contained in the alleged tailzie, in the Crown charter or instrument of sasine, or either of them, the investiture following on the alleged tailzie is defective within the meaning of the 43d section of the Act 11 and 12 Vict. c. 36; and, in terms thereof, the alleged tailzie is an invalid and ineffectual entail in toto, and was so at the date of Hugh Mackenzie's trust-disposition and settlement. (3) In respect of the erasures and interpolations in the clause of destination in the Crown charter above condescended on, the destination came to an end in the person of the said Hugh Mackenzie, the institute or disponee, who, as sole member of taillie, held the lands and estate of Dundonnell and others in fee-simple.

Authorities relied on—Balfour's Practicks (ed. 1754), pp. 187, 652-3; Craig's Jus Feudale p. 194, § 5, 215, § 23; Smith, 13 S. 465, and 1 Rob. App. 173; Monro, 7 Macph. 250; Innes, 5 S. 559; Adam, June 12, 1810, F.C.; Sheppard, 6 D. 464.

Argued for the defender—(1) The words written upon the alleged erasures are lawfully and properly authenticated; (2) the alleged erasures are not in substantialibus; (3) the signature containing the Sovereign's sign-manuel and the precept from Chancery, which form the warrants for the charter, are strictly in terms of the original tailzie, and are not erased; (4) the Chancery Record contains an exact transcript of the charter as it now exists, made before the charter was delivered, and which transcript is to no extent written upon erasure; (5) a crown charter is a privileged deed and does not require the same solemnities of authentication as ordinary deeds.

Authorities relied on— Gollan, H. L. 1 Macph. 65; Holmes, 13 D. 689; Borthwick, 16 D. 37; Hamilton, 8 Macph. 323 (per L. P., 344—per L. J.-C., 336); Cunningham's Trs,, 14 D. 1065.

At advising—