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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> James Don Esq; v. Sir Alexander Don of Newton [1713] UKHL Robertson_76 (14 July 1713) URL: http://www.bailii.org/uk/cases/UKHL/1713/Robertson_76.html Cite as: [1713] UKHL Robertson_76 |
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Page: 76↓
(1713) Robertson 76
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 21.
Subject_Construction. —
Forbes, 28 Nov. 1712. 5 Feb. 1713.
An estate is entailed by a person to himself in liferent and to his eldest son and the heirs male of his body whom failing to the entailer himself, whom failing to his second and third sons, and the heirs male of their bodies &c. whom all failing to the father's nearest heirs and assignees: another estate is entailed to the second son of the former entailer and the heirs male and female of his body, whom failing to the said former entailer and his heirs male of tailzie and provision in the former entail; after failure of the institute in the second entail and the heirs male and female of his body, the heir male of the first entailer succeeds to the estate contained in the second entail.
Subject_Tailzie. —
An heir of entail prohibited from alienating gratuitously, where the prohibitory, irritant, and resolutive clauses, were referred to as contained in another entail.
At making an entail the institute reconveys to his father an estate formerly settled upon him, and he and his wife discharge an obligation upon the father by their contract of marriage; the institute, nevertheless, cannot gratuitously alter.
Sir Alexander Don of Newton, the grandfather of the appellant and respondent, had issue three sons, James, Alexander, and Patrick. In consideration of a marriage between Alexander, his second son, and Anna, the daughter of George Pringle Esq. who brought her husband a considerable portion, Sir Alexander did, by their contract of marriage in 1677, settle and dispone his lands of Broomlands and Ravelaw to the said Alexander his second son, his heirs and assignees, in see or property, without any restriction; and Sir Alexander did thereby also oblige himself to lay out 25,000 l. Scots in the purchase of other lands to be settled in the same manner, and to pay the annual interest thereof until such purchase could be made to the said Alexander the son: and the lands of Broomlands and a house in Kelso were thereby settled in jointure on the said Anna, in case she should survive her said husband.
Afterwards, upon the marriage of the said James, the eldest son, Sir Alexander, on the 3d of August 1681, executed deed of entail of his lands of Newton and others, settling the same to himself in liferent, and to James, his eldest son, and the heirs male of his body, in fee; whom failing, to Sir Alexander the entailer himself; whom failing, to Alexander his second son, and the heirs male of his body whom failing, to Patrick his third son, and the heirs male of his body, with several other substitutions of heirs; whom all failing, to Sir Alexander (the entailer), his nearest heirs and assignees. The deed contained strict prohibitory, irritant, and resolutive clauses upon the said James and all the other heirs of entail.
Sir Alexander Don, having afterwards agreed with Sir Francis Scott for the purchase of the lands and barony of Rutherford, a transaction of the following nature took place. Alexander the second son, and his wife, reconveyed to the father and his heirs
Page: 77↓
After the death of Sir Alexander, in 1686, his eldest son Sir James, and his second son Alexander (afterwards Sir Alexander) entered upon and possessed the several and respective estates so provided to them by their said father.
Sir Alexander Don of Rutherford, in 1710, executed a new deed of entail of that estate, settling the same to himself and the heirs male and female of his body, whom failing to the appellant, the third (a) son of Patrick Don, old Sir Alexander's third son, and the heirs of his body: and afterwards died on the 15th of August 1712.
Sir James Don of Newton, being now also dead, and succeeded by the respondent, his son and heir, a competition arose between the respondent and the appellant for the estate of Rutherford. The respondent brought an action of declarator against the appellant before the Court of Session, claiming the estate of Rutherford under the deed of entail made thereof by Sir Francis Scott, whereby the same failing heirs of the body of Sir Alexander the son was settled upon Sir Alexander the grandfather and his heirs male of tailzie, and provision contained in his infeftments of Newton; and contending that the deed executed by Sir Alexander the son, under which the appellant claimed, was void, and that Sir Alexander was expressly tied up from making any alienation of his estate by the deed under which he possessid the same. The appellant appeared and made defences, and the Court, on the 20th of January 1712–13, “Found that the respondent was next heir of entail of Rutherford by the failure of the heirs of Sir Alexander Don of Rutherford his body; and that the clause in the entail of Rutherford mentioning the prohibitory and irritant clauses in the entail of Newton, hath respect to Sir Alexander Don of Rutherford, and the heirs of his body, as well as old Sir Alexander Don of Newton, and the heirs after him, and that the said entail of Newton, referred to in the entail of Rutherford, is the last investiture in 1681; and that the disposition of Rutherford, bearing she price to be paid by Sir Alexander Don the elder, and the right taken to him, in liferent, and to his son in fee, the fee was so qualified in the person of the son, that he could not gratuitously alter the
_________________ Footnote _________________
(a) The Respondent's case says the second son.
Page: 78↓
The appellant having reclaimed, after a rehearing of the cause on the 5th of February 1712–13, the Court “adhered to their former interlocutor, and found that the clauses irritant in the entail of Newton, not being verbatim expressed, but related to in the entail of Rutherford, does affect the entail of Rutherford so as Sir Alexander Don of Rutherford could not gratuitously alter the succession, and that the entail of Rutherford relating to the conditions, limitations, and provisions in the entail of Newton does also comprehend the irritancies in the entail of Newton.”
Entered, 28 May, 1713.
The appeal was brought from “certain interlocutory sentences, or decrees, of the Lords of Council and Session of the 20th of January and 5th of February 1712–13.”
Heads of the Appellant's Argument.
By the reconveyance and discharge made by Sir Alexander the son and his wife of the said estates of Broomlands and Ravelaw, &c. settled, or agreed to be settled, by their marriage-contract, Sir Alexander the son was and ought to have been adjudged the real purchaser of the said barony of Rutherford; and therefore, according to the laws of Scotland, he had power to settle and dispone the same as he thought sit, as he might the said estates of Broomlands and Ravelaw, if they had not been reconveyed.
Though Sir Alexander the son had not been such real purchaser, yet the clause in the entail of Rutherford, referring to the entail of Newton, could not properly be understood otherwise, than for limiting the estate of Rutherford, in case of Sir Alexander the son's death without issue to Patrick the appellant's father, who in the entail of Newton, is mentioned next substitute, or in remainder after the said Sir Alexander the son and his heirs male.
And, however this might be, though Sir Alexander the son might by the irritant or prohibitory clauses in the said deed referred to, be restrained from selling, contracting debts, or doing any acts whereby the estate might be evicted from the family by a stranger, yet he could not by any thing therein contained be debarred from altering or interrupting the couse of succession thereto in his own family.
Heads of the Respondent's Argument.
Whatever transactions were betwixt the father and son, it is certain that old Sir Alexander Don, was the purchaser of the estate of Rutherford; he paid the price, he took the estate to himself for life, to him the deeds relating to that estate were to be delivered, and to him the warrandice was granted. And since the said estate was sold conditionally, and Sir Alexander the son accepted of, and possessed by that deed, the appellant who claims under him, can be in no better circumstances. Sir Alexander the grandfather, then, being the purchaser, might dispose of and settle his estate in what way and manner he pleased; and he having
Page: 79↓
Though, as the appellant contended, the respondent could not be served heir to old Sir Alexander, who became merely a life-renter yet he is in the true genuine signification of the word his heir, that is universal successor to him: to the respondent alone ought the lands of Rutherford by the said deed to descend: he alone is Sir Alexander the grandfather's heir male, being his grandson by his eldest son: he alone is heir of entail, and provision of the estate of Newton, the same being limited to him in the first place, and as such he has succeeded to, and now is in possession of these lands. And the description in the deed of settlement of the Lands of Rutherford, whereby the same are limited upon the failure of the issue of Sir Alexander the son, to Sir Alexander the grandfather's heirs male and of entail and provision in the lands of Newton can possibly agree to nobody else but the respondent.
If the word heir was taken in so restricted a sense as the appellant contends it could be of no import to him, since Sir Alexander the father having died, when he was but life-renter, the appellant no more than the respondent could be heir to him. For the only case in which Sir Alexander the grandfather could have an heir served to him, was upon the event of the reversion of the estate of Newton to him, upon failure of issue male by his eldest son, but even in that case the respondent has a good claim, being Sir Alexander the grandfather's right heir, and as such the last in substitution mentioned in the said deeds of settlement.
The respondent's claim is not only founded upon the express words of the deed, but upon the presumed will of the donor, who having acquired a considerable estate, did mutually entail the estates that he granted to his eldest and second sons, expressly tying them both up from doing any thing in prejudice thereof, designing (as he expresses it in the recital of those deeds) the continuation of his memory and family: and were there any doubt, as there is not, the presumed will of the donor is of great weight, and the rule in such cases.
The appellant objected that the irritant clauses, &c. were not expressed, but only referred to in the entail of Rutherford, and so not binding, but this is contrary to all the known rules and principles of the law of Scotland, by which settlements are very often made to have relation not only to deeds already executed, but to such as may be executed; and in this case, Sir Alexander the grandfather having made that settlement of the lands of Newton, and a very few months after this of Rutherford, he could not have better expressed his intention, that the several hears of entail should be tied up from alienating the estate, than by making it under all the conditions, limitations and restrictions, mentioned
Page: 80↓
Judgment, 14 July, 1713.
After hearing counsel,
Ordered and adjudged that the petition and appeal be dismissed, and that the interlocutory sentences or decrees, therein complained of, be affirmed.
_________________ Footnote _________________
(a) Nothwithstanding the form of this judgment, it is not therefrom to be understood (as I believe,) that the judgment had been opposed; this is the common form of putting the question on every judgment on appeal.
