BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
United Kingdom House of Lords Decisions |
||
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Alexander Monypenny, W. S., Trustee under the Settlements of the late David Steuart Erskine, Earl of Buchan . v. William Campbell, of No. 9, Great St. Helens, London, Son of John Campbell, deceased, and his Administrator, and Donald Horne and James Rose, W. S., Mandatories of said William Campbell . [1839] UKHL MacRob_898 (16 August 1839) URL: http://www.bailii.org/uk/cases/UKHL/1839/MacRob_898.html Cite as: [1839] UKHL MacRob_898 |
[New search] [Printable PDF version] [Help]
Page: 898↓
(1839) 1 Mac&Rob 898
REPORTS OF CASES UPON APPEALS AND WRITS OF ERROR, AND QUESTIONS OF PEERAGE, DECIDED BY THE HOUSE OF LORDS, Session of Parliament 1839, 2 & 3 VICTORIA.
(Appeal from the Court of Session, Scotland.)
1st Division.
(No. 34.)
[
Counsel: [
Pemberton —
Cowan.]
[
Lord Advocate (Rutherfurd) —
Knight Bruce —
MacDowall.]
Subject_Entail (Prohibitory Clause) —
The following words, in the prohibitory clause of a deed of entail, were inserted immediately subsequent to prohibitions against selling and contracting debt, &c., viz. “or to do any other fact or deed in prejudice of the said taillie, and of the persons above named, and their foresaids.” Held (affirming the judgment of the Court of Session,) that they were sufficient to prevent an alteration of the succession.
Question—Whether it is necessary to fence with irritant and resolutive clauses a prohibitory clause against altering the order of succession? (See p. 909.)
Statement.
The late Earl of Buchan was infeft in the estate of Strathbrock under a deed of entail, dated 4th November 1664. The deed of entail contains, inter alia,
Page: 899↓
“It shall noways be leisome nor lawful to any of the heirs of taillie and provision above specified to sell, dispone, and wadsett the lands, baronie, and others above written, or any part thereof, or any annual rents or yearly duties to be uplifted furth of the samen, or to set tacks thereof for longer space than their own lifetime, or to contract debt for which the samen may be apprised or adjudged, or to do any other fact or deed in prejudice of the said taillie, and of the persons above named, and their foresaids; and if any heir of taillie and provision above specified shall in any time coming failzie herein, or do any thing contrair to this my destination and appointment, then and in that case the person or persons sua failzieing and doing in the contrair hereof, and the heirs of their bodies, shall amit and lose their right and haill benefit to this present bond of provision and infeftment following hereon, and of the haill lands, baronie, and others above written, and the samen shall in all time thereafter pertain, belong, and accress to the next person for the time who, by and in virtue of the said tailzie and provision, would have succeeded to the said lands and estate, failing the saids persons, contraveners, and the heirs of their bodies, and all dispositions and deeds whatsomever made or done contrair to the said provision and destination, with all that shall follow thereon, shall be ipso facto void and null, without any declarator, and shall noways affect nor burden the said lands, baronie, and others above written, or any part thereof, as if the same had never been done, with and upon the whilks reservations, reversions, provisions, and conditions respectively above mentioned,
Page: 900↓
I have made and granted thir presents and no otherways.”
On 12th June 1822 the late Earl of Buchan executed a trust conveyance, inter alia, of said estate, in favour of the appellant, with a view to exclude his Lordship's nephew, the present Earl, from the rights accruing to him as next heir of entail. The respondents, creditors of the present Earl, having regularly adjudged his Lordship's power and faculty, brought an action, founded on their adjudication, of reduction, inter alia, of said trust deed, as being ultra vires of the granter, in which they called the present Earl and the appellant as defenders. The present Earl of Buchan did not appear as a defender in the Court of Session. The record being closed upon summons and defences, the Lord Ordinary, on 11th July 1837, pronounced the following interlocutor:—
“The Lord Ordinary having considered the record, and heard counsel thereon, l mo, In respect of the decision of the Court on 9th February 1837, in an action at the instance of Mrs. Susan Rowe against the same defender 1, and in reference to the original tailzie of the estates now libelled on, finds that the said tailzie contains an effectual prohibition against frustrating the order of succession which the late Earl of Buchan could not gratuitously contravene. 2 do, Finds that the disposition executed by the late David Earl of Buchan, on 20th January 1819 2, and
_________________ Footnote _________________
1 The Court had previously pronounced judgment to the same effect in an action at the instance of this party, which was withdrawn from a supposed defect in her title. (See 15 D., B., & M., 500.)
2 The disposition here referred to was a disposition and procuratory of resignation, on which titles were made up by the late Earl in fee simple before he executed the trust deed; these titles were also brought under reduction.
Page: 901↓
Judgment of Court, 22d Dec. 1837.
The appellant reclaimed to the First Division of the Court, when the following judgment was pronounced:—
“The Lords having considered this note, and heard counsel, adhere to the interlocutor reclaimed against, so far as relates to the lands and barony of Strathbrock, and with this qualification, refuse the prayer of the note. Of new, find expenses due, and remit to the auditor to tax the account thereof, and to report.”
Appellant's Argument.
Appellant.—There is no valid and effectual prohibition against altering the order of succession. The cases of Earlshall, Blairhall, Craigievar, Argaty, Eastfield, and Burdsyards completely establish this proposition. 1 The case of Lochbuy 2 cannot be reconciled with these decisions, of which the cases of Eastfield, Earlshall, Blairhall, and Burdsyards were subsequently decided.
The case of Roxburghe
2 differs essentially from the present. In that case it will be remarked, there is a
_________________ Footnote _________________
1 See ante, p. 879.
2 See ante, p. 881.
Page: 902↓
Page: 903↓
But, again, it is an undoubted rule, in construing the fetters of an entail, that if the words used be susceptible of two interpretations, that is to be adopted which is against the fetters. Now, there is this further essential difference between the Roxburghe case and the present. In the Roxburghe case the words are
Page: 904↓
In the second place, the irritant clause in the entail of Strathbrock is defective; the whole entail is thereby rendered inoperative, and so it was competent to the truster to settle the estate in any way he thought proper. It will be observed, that by the irritant clause it is provided, “that all dispositions and deeds whatsoever made or done contrair to the said provision and
Page: 905↓
_________________ Footnote _________________
1 21st Feb. 1837, 15 D., B., & M., 618.
Page: 906↓
But again, if the word “destination,” which is also used, has any definite meaning, and could apply directly to any one prohibition, it could only be to a prohibition against altering the order of succession, supposing the entail to have contained such a prohibition. As regards other prohibitions it is liable to the same objection of ambiguity and uncertainty as the word “provision.” Therefore, it follows, that at all events the irritant clause is ineffectual, in so far as respects selling or contracting debt. If, however, the irritant clause be either wholly
Page: 907↓
Respondents Argument.
Respondents.—The present case is identical with that of Roxburghe; the entail in each of them is conceived in terms which announce a distinct and explicit prohibition to alter the succession, and this being so, it is utterly unimportant that the disjunctive used in the one case is “nor yet” and that in the other “or.” The omission of the word “evicted” might afford an argument, if the act under consideration had fallen under the denomination of acts alluded to on the other side. Whatever may be its effect as to such an act, when the point comes to be considered it is obvious that the Roxburghe case has clearly fixed the application of the subsequent prohibition to an alteration of the succession which may be effected without eviction.
It is altogether contrary to the law, as hitherto known in Scotland, to say, that an entail defective in one particular is altogether defective.
2 The irritant clause in the present case is sufficiently applicable to alterations of the succession, if irritant clauses were necessary for this purpose. In order, however, to prevent alterations of the succession, as distinguished from the statutory acts which may indirectly have that effect, irritant
_________________ Footnote _________________
1 3d July 1832, reversed 18th April 1835; 1 Sh. & M'Lean's Appeal Cases, p. 594; Lords Journals, vol. 67. p. 114.
2 Cathcart, 5 Wilson & Shaw, 315.
Page: 908↓
The judgment in the case of Hoddom 2 as regards this point was drawn up per incuriam, and is not authorized by the opinion delivered in this House when that cause was heard. 3
Ld. Chancellor's Speech.
Lord Chancellor.—What I have already said in the case of Lang v. Lang, nearly exhausts the first part of this case, namely, as to the effect of the prohibition against altering the order of succession.
There was but one different ground on which it was attempted to distinguish this case from the Roxburghe case, and that was, that the prohibition in the Roxburghe case, besides contracting debt, included the case of forfeiture for feudal delinquencies, which it was said was not so in the present case. Now, supposing the word “evict,” which is used in the Roxburghe case, to apply to acts creating forfeiture, it does not follow that there are not words sufficient in the clause in the present case to entitle us to give the same construction in both; I cannot entertain a doubt as to the expressions
_________________ Footnote _________________
1 Erskine, b. iii. tit. viii. sec. 23.
2 8 See ante, p. 907.
3 The
Page: 909↓
Assuming then that there is an effectual prohibition against altering the succession, an objection was taken that there are not proper irritant and resolutive clauses applicable to such prohibition, to which it was answered that in cases of simple destination such clauses are not required; be that as it may, I think it clear that in this case there are such clauses sufficiently applicable to the purpose. The term “deed” is only to be found in the prohibition against altering the succession; the resolutive clause applies to any thing done “contrair to this my destination and appointment,” and that which is avoided or declared null is “all dispositions and deeds whatsomever made or done contrair to the said provision and destination.” If, therefore, clauses irritant and resolutive against altering the order of succession are necessary, they are, I think, to be found in this entail. The question is not here, as in the case of Lang, whether there are clauses properly fencing the other prohibited acts. I think, therefore, that, upon the points raised, the interlocutors appealed from are correct, and that these interlocutors should be affirmed, and the appeal dismissed with costs.
The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House, and that the said interlocutors therein complained of be and the same are hereby affirmed: And it is further ordered, That the appellant do pay or cause to be paid to the said respondents the costs incurred in respect of the said appeal, the amount thereof to be certified by the clerk assistant: And it is further ordered, That unless the costs, certified as aforesaid, shall be paid to the party
Page: 910↓
Solicitors: Richardson and Connell — Deans and Dunlop, Solicitors.