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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Alexander Grant and Robert Grant, Trustees of the Deceased Robert Leith, Esq., of Druminnor v. James Shepherd, W.S. [1847] UKHL 6_Bell_153 (21 July 1847) URL: http://www.bailii.org/uk/cases/UKHL/1847/6_Bell_153.html Cite as: [1847] UKHL 6_Bell_153 |
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Page: 153↓
(1847) 6 Bell 153
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1847.
No. 10
[Heard
Subject_Writ. —
Where an erasure occurs in a substantial part of a deed, the presumption of law is that it was made after execution; and this presumption is not rebutted by showing that the words erased are consistent with other parts of the deed, for the erasure amounts to a revocation, unless it can be also shown that it was made before execution. Neither can the words written on the erasure be adopted unless upon similar evidence.
Subject_Ibid. —
Where a vitiation occurs in the first of a series of dependent substitutions, the effect of the nullity of the first is to vitiate the whole.
Subject_Homologation. —
There cannot be homologation of a deed altogether void by reason of erasures.
Subject_Prescription. —
Act 1617, cap. 12. The right to sue reduction of a deed, as null in respect of erasures in substantialibus apparent ex facie, is not cut off by the lapse of forty years.
On the 13th November, 1761, John Leith executed a deed of entail, whereby, after saying “I have taken into my serious consideration that I have no heirs male of my own body to represent me, and that I have grandchildren, and am desirous that my memory and sirname of Leith should be preserved in the persons of my grandchildren and their heirs,” he disponed his lands to and in favour “of myself in liferent, and to the heirs male lawfully to be procreated of my own body in fee; whom failing, to the eldest son living at the time of my decease, procreated betwixt John Grant Younger, of Rothemaise, and Anna Leith, my eldest daughter, and to the heirs male of his body in fee; whom failing, to the eldest son
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In the year 1763 the granter of the deed executed another deed, whereby he gave the liferent of the lands to his eldest daughter, Mrs. Grant, upon the narrative that the fee had “been made over to John Grant, her eldest lawful son, by disposition granted by me in his favour.” The entailer died without having had any heirs male of his body. Upon his death Mrs. Grant entered into possession of the entailed lands, and continued in the enjoyment of them until her death in 1807. After her death her son, John Grant, entered to possession, but died without having had any issue, or having made up any title to the lands. Upon John Grant's death in 1790, John Shepherd, the eldest son of the second daughter, entered to possession of the lands, and made up his titles to them as heir of taillie and
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John Shepherd continued in possession until his death in 1832, without issue. But in 1811, during John's possession, his brother Alexander brought an action setting forth that erasures had been made upon the entail, with a view to defeat his rights under it, and concluding to have them ascertained. This action was never prosecuted to a conclusion.
At the period of John Shepherd's death, the third daughter of the entailer had died without leaving issue, and the second and third sons of the eldest daughter were likewise dead; but Janet, the third daughter, was still alive, and it did not appear at what time she died. The lands continued in non-entry until the year 1834, when Alexander Shepherd, the second son of the second daughter served himself heir of taillie and provision, and completed his title by infeftment under the entail.
In 1836 Alexander Shepherd died without issue, and thereupon Robert Grant, who was the fourth, and, at the period of John Shepherd's death, the only surviving son of the eldest daughter, served himself heir of taillie, and was infeft in the lands. At the same time the Respondent, who was the son of the third son of the second daughter of the entailer, sued out a brieve for serving himself nearest heir of taillie and provision. This brieve was the foundation of a competition between the Respondent and Robert Grant, upon the assumption that the deed of entail was valid and effectual, which was ultimately terminated by a decision in favour of Robert Grant, finding him to be the nearest heir under the entail.
After the termination of this competition, the Respondent, in 1838, brought an action of reduction and declarator against Robert Grant and the other heirs of entail, which was afterwards insisted in against the Appellants, who were the disponees of Robert Grant under a fee-simple conveyance in their favour made in derogation of the entail, setting forth that the words
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The Respondent, in support of his action pleaded in law—1. That the deed of 1761 ought to be reduced in respect of the vitiations in it. 2. That the erasures must be held to have been made after the date of execution, as they were not mentioned in the testing clause. 3. That he was not barred from insisting in his action in consequence of any of the legal proceedings in which he had been engaged with the Defenders.
Robert Grant pleaded in answer—1. That the Respondent's right to challenge the entail was cut off by the negative prescription. 2. That as the Respondent had homologated and approbated the entail while in the knowledge of the erasures in it, he was barred from challenging the deed personali exceptione. 3. That the erasures did not occur in essential parts of the entail, and therefore it was valid and effectual. 4. That it was competent to show by parole testimony that the erasures had been made and words superinduced upon them before the deed was executed. 5. That as the Respondent's ancestors had made up titles under the entail to the exclusion of the other heirs-portioners, and had thereby incurred an implied obligation to abide by the entail and waive their right of challenge, the Respondent could not pass by the heirs between himself and the entailer, who had made up titles under the entail, and serve to the entailer, without becoming liable to the obligation so
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The Lord Ordinary, ( Cunningham,) before taking the case to report to the Inner House, issued the following note:—
“I. It is set forth by the pursuer that the instrument under challenge, in so far as it refers to the first disponee in the tailzie after heirs of the granter's own body, is uniformly and in every instance erased, and the first question which arises is, If this be an erasure in essentialibus? As to that point the Lord Ordinary has no doubt. It is self-evident that the name or legal designation of the party called in a leading place of the destination, is one of the most essential parts of a conveyance, and, therefore, if the deed under reduction had been a conveyance to that party alone, whose right is constituted only by words written uniformly on erasures, it must have been instantly reduced as void and improbative. The analogous case of Keddar, decided in this Court in 1835, ( vide Reports of 6th March, 1835,) and affirmed with costs in the House of Lords within these few weeks, would be decisive of the question. In one respect the erasures in the case of Keddar could hardly be viewed as so essentially affecting the deed as those which occur here; for in Keddar's case the testing clause was so framed as to entitle the defender very plausibly to argue that the word erased had been altered by consent of the granter; but there is no such speciality in the present case.
The defender refers to another deed executed by John Leith on 31st August, 1763, to show that the disposition and deed of tailzie, exactly as it stands, though erased, was thereby acknowledged to have been previously executed by
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him. But that deed, in the Lord Ordinary's mind, leads to an opposite conclusion. It is therein set forth that the disposition and settlement of Blair, sometime before executed by Mr. Leith, was in favour of his grandson, ‘ John Grant,’ in fee. It is probable indeed that the conveyance under reduction was so framed in the first instance, and that the words ‘John Grant, eldest lawful son procreate,’ &c., stood at first upon the space erased, and which now bears these words, “the eldest son living at the time of my decease, procreate betwixt John Grant,” &c. &c. The difference between these modes of designating the first member of the tailzie might unquestionably have been of great importance, as in the one case a favoured individual was called, who might have predeceased the granter, while on the other, such party as might be his eldest daughter's eldest son, at the time of his death, was called. As John Leith, however, in the deed of 1763 referred to the conveyance as one then subsisting in favour of his grandson, John Grant, by name, it rather goes to shew that the deed was altered and erased after that date. That state of the fact could obviously confirm very strongly the pursuer's plea. Reference, however, is farther made by the defender to the parole testimony of Alexander Scott, the writer of the tailzie under reduction, and one of the testamentary witnesses who it is said emitted a disposition taken to lie in retentis in another process in 1814, in which he swore that the erasures founded on were made before the execution of the deed, and at the express desire of the granter. But as a similar proof was offered in Keddar's case, and refused, and as the judgment of the Court on that point, as well as on the merits of the case, has been lately affirmed in the Court of last resort, the testimony of Scott must be thrown entirely out of view in the present question.
Had the deed under challenge then been a conveyance
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to that party alone, whose name and legal designation is written uniformly on erasures, the deed must have shared the fate of that of Keddar's case, and been reduced. II. It is next maintained on the part of the defender, however, that there is a material and decisive distinction between the present case and that of Keddar, in so far as it is alleged that the party entitled to claim under the erased clause of the taillie, according to any reading which the clause (as completed by words written from the first in characters clear and unvitiated) admits of, and his whole issue are long since extinct, and that the defender's claim arises under other clauses inserted and constantly repeated in the tailzie without any erasure, and therefore it is argued that the conveyance to the defender, at all events, must stand good and receive effect, on the maxim that utile per inutile non vitiatur. The argument and authorities on that view of the case are pretty fully detailed in the revised case for the defender (pages 14, 22), although the pursuer has not thought it necessary to advert to them. The pursuer appears to have taken it too easily for granted that this part of the defender's case required no notice.
No doubt there is a distinction between the present case and many of those in which a deed has been held in part ineffectual and sustained quoad ultra as improbative. Thus, when a settlement, conveying heritage and moveables, is found ineffectual as to the former, there is no difficulty or inconsistency in giving effect to it as to moveables, because it must be presumed to be the will of the deceased to give the party favoured the benefit of the conveyance, as far as it can be enforced, according to law; and, on the same principle, though one clause of a settlement conferring a legacy on an individual (as in Kemp's case) is vitiated or rendered improbative, the instrument may be sustained as to another bequest, when there is no vitiation in the clause relative thereto. But
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it is doubted if these cases are sufficient to rule decisively such a question as the present, in which there are erasures throughout the whole of the conveyance in the description of one of the primary members of the dispositive or destination clause. It may be argued that the ulterior members of the destination are only introduced on his failure, and that the substitutes can never take if there be any uncertainty or nullity in the nomination of the party, on the contingency of whose failure only any right is given to them. This is a point which seems to have been much considered by the Court in the case of Abernethie v. Forbes in 1835, ( vide Reports, 16th January, 1835;) and then it was found to be an irrelevant objection to a tailzie, as an obligatory deed, to allege that the nomination of a posterior substitute in such a deed was null and ineffectual, from the mode in which his name was filled in. Still it was noticed, as a specialty of importance in that instance, that the nomination objected to was that of a posterior and not of a prior substitute. Whether the erasure, or as it might be, the omission to fill up an earlier disponee's name in proper form, should vacate that of other disponees, clearly and correctly named and designed in the deed, seems at least an open question, not decided in terminis in any prior case; and if the present question shall be thought to bear on that point, it may deserve more discussion than it has yet received in the argument hitherto urged in this cause.
III. There are other views of this case, however, which deserve to be considered before the parties are involved in much expense in the preceding question.
In particular, the defender pleads, that all challenge by the pursuer of the tailzie is excluded by the negative prescription, which it is said cuts off the pursuer's right to challenge the deed, even although the defender and his predecessors have not had possession exclusively under it for
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the full period of forty years. The Lord Ordinary must own that he should doubt the soundness of that plea, as applied in the abstract, or in ordinary cases to dispositions, which the Act 1617 expressly requires to be fortified by possession, bruiked under the rights protected by that law. Neither does the case of Paul in 1814 ( Fac. Coll. 8th February, 1814) support the argument of the defender, as that proceeded on decrees of adjudication and expiry of the legal, followed by seventy or eighty years' possession, (though not by a regular feudal title,) which plainly distinguished that case from the present in one essential particular, it being maintained here that, in one view, actual possession under the entail did not commence till 1807. If the Court, however, shall think that the possession of the heirs of tailzie commenced in 1790, by the infeftment taken by the defender's uncle, John Shepherd, in that year, to be immediately adverted to, then this challenge will be excluded, and the title of the heirs of entail will be for ever validated by the positive prescription. As this does not seem to be the view of the case on which the defender relies, the Lord Ordinary thinks himself bound to state that, on a careful examination of the circumstances of the present case, and of the titles and other writs produced, various pleas arise against the challenge now brought forward, which, though not pleaded on record, will probably occur before the case is finally disposed of, and therefore deserve very serious consideration. It will be observed then that the pursuer sues this action as now one of the two heirsportioners of John Leith, the maker of the tailzie. John Leith died in the end of 1763; and, although the property libelled on was disponed by a separate deed to a liferenter who survived till 1807, yet the fee of the estate was claimable by the heirs at law, from the period of John Leith's death downwards, if they chose to challenge the
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tailzie as erased or improbative, or on any other ground. Leith, as appears from the tailzie, had no sons, but he left three daughters, one of whom died unmarried, so that the two heirs-portioners were (1.) the heir of Mrs. Grant, and (2.) the heir of Mrs. Shepherd. But the parties who possessed these characters for a long series of years after Mr. Leith's death, did not choose to claim as heirs-portioners, hut found it more for their interest, or chose on views of their own, to homologate and give effect to the tailzie. In particular, when Mrs. Grant's eldest son died prior to 1790, the defender's elder uncle, John Shepherd, made up a title under the tailzie, by getting himself retoured as heir of entail, and taking infeftment on the precept of sasine thus taken up in 1790. Upon that title John Shepherd drew the rents of the whole estate of Blair from the death of the liferenter in 1807 till his death in 1832, a period of 25 years. Again, on John's death, his next brother, Alexander Shepherd, also served heir under the tailzie, and made up titles and continued in possession of the estate for four years, till his death in 1836. Now it is supposed that both of these parties did, from the date of the titles expede by them, or at least long prior to their deaths, unite in their persons the characters both of heirs-portioners and of heirs of tailzie of John Leith. The retour of Alexander Shepherd in 1834 (No. 54 of process) expressly bears, that his mother was then deceased, and it is possible she may have predeceased John also. If so, both the Messrs. Shepherds, while heirs-portioners, made their election and expede titles under the tailzie which the other heir-portioner of old Mr. Leith admitted. One question, then, which arises here is, If any subsequent heir claiming this estate, or a portion of it, as an unlimited fee, can challenge the title which his predecessors chose to adopt and confirm. It appears very difficult to maintain such a plea. Not only were the Messrs. Shepherds entitled to take up the estate under the tailzie if they chose, in preference to claiming on
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their fee-simple title, but their doing so was a most natural and beneficial proceeding for them, though it was equivalent to a discharge of all action competent to them and their successors, as to the validity of the deed of tailzie as a probative and authentic writ. Suppose that either of the Messrs. Shepherds deceased had been the sole heir of line of old Leith, and that the entail had been executed by him on deathbed, if they chose to decline instituting a challenge on that head, and to make up a title under the tailzie, and to possess thereon for a series of years, could their son or any collateral heir pass by their immediate predecessor, and serve to the tailzier in the character of an unlimited fiar, and prosecute the challenge which the primary heir had waived and virtually discharged? The contrary has been repeatedly found, as exemplified in the case of Hood 1734, reported by Elchies, voce deathbed, and in that of Hedderwick in 1740,— Dictionary, page 3180. But the present is a far stronger case. Here the heirs-portioners, who were called as heirs of entail, and ultimately took up the possession as such, were lucrati to a great amount by confirming the entail; they got the whole rents instead of one-half only, to which they must have been limited as heirs-portioners. Hence the question arises, If they did not come under an onerous obligation, binding on themselves and their successors, not to impugn, but to give effect to the tailzie, at least as the authentic deed of their common author? It is important under this head to observe, that the documents produced, and in particular the proceedings in the former process at the instance of Alexander Shepherd in 1814, already referred to, ( vide Nos. 25—53 of process,) prove that that party was quite aware of the whole erasures now founded on. Nevertheless, he abandoned all claim as heir of line or heir-portioner of his grandfather, and made up a title under the tailzie. It is to be considered if any heir of line after him can challenge a title which he ratified.
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The pursuers plea, of course, must be, that he does not represent either of his uncles, John or Alexander Shepherd, and that the title he has expede is as one of the heirs-portioners of his great-grandfather, Mr. Leith, passing by the parties who first succeeded and acknowledged the tailzie. But the question is, If he be entitled to pass by preceding heirs, who were entitled, (on the pursuer's view,) to take up the share now claimed in fee simple? As the Messrs. Shepherd could have sold or burdened the one-half of the estate if they chose, it seems to follow that they could forego and discharge the right to challenge any settlement of it, competent to them as ordinary heirs, and more especially when they got a large benefit by so doing, and had possession of the estate for many years. It is rather thought that every heir attempting to pass them by, is bound, both according to the intent and terms of the Act 1695, to fulfil their acts and deeds. The estate of old Leith, if the entail was challengeable, may be viewed as consisting of two portions, viz. the portion claimable by the Grants, and that claimable by the Shepherds. But when John and Alexander Shepherd, being successive heirs-portioners, took up the whole entailed estate, they came under an obligation to execute an entail of their own portion, if the title were in any respect objectionable. This was one of the chief points decided in the case of Carmichael in 1810, ( Coll. Fac. 15th November, 1810,) which has an important bearing on the present case.
At the same time, the Lord Ordinary is bound to feel some distrust as to the views thrown out in the latter branch of these notes, as they have not hitherto been urged by the parties, and have probably been rejected on grounds which will be apparent on a more mature consideration of the case. It may also be doubted if the record, as prepared, would admit of the whole pleas latterly suggested. Hence it is recommended, that the parties should confer with each other on
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the shape of the record, and of the cases as prepared, and consider if they should not be amended. The case may be enrolled in the first motion roll of November, and if the parties think the cause then prepared for report, an order to that effect will be pronounced.”
In consequence of the suggestion in the concluding part of this note, the two last pleas which have been stated for the Appellants were put upon the Record.
On the cause being reported, the Inner House directed the papers to be laid before the whole Judges of the Court for their opinion, and thereafter, (on the 19th January, 1844,) in conformity with the opinion of the majority of the consulted Judges, sustained the reasons of reduction, and decerned in terms of the declaratory conclusions.
This interlocutor was the subject of appeal.
The Lord Advocate and Mr. Bethell for the Appellants.—The destination in the deed is quite in consistence with the intention of the granter, as expressed in the inductive clause. His wish is to have his name and memory preserved in his grandchildren, and his first disponee is a son of his eldest daughter—that is beyond dispute from the words which are unerased; and that this son was the eldest is shown from the subsequent part of the destination, where, after giving the lands to the eldest son of the second and third daughters, it reverts to the second son of the eldest daughter.
[
But John Grant is mentioned in a subsequent part of the deed, where he is prohibited by name from selling or alienating, and the general structure of the deed raises probabilities against any other person amounting almost to a certainty.
If when the competition arises no person is in existence to claim under the first substitution, its being upon an erasure won't destroy the deed. The erasure amounts to no more than this,
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[
But the erasure does not necessarily prevent his taking, if from the other parts of the deed it be apparent that in the erased part he was the person intended; and this is shown by the mention of his name in several subsequent parts of the deed where it is not written upon an erasure. The erasure to be fatal must be in an essential part of the deed, and what is essential is not determined by looking at the particular part, but by looking at it in connexion with the rest, Stair, IV., 42, 19, Wright v. M'Leod, Mor. 11540; Lyon v. Aboyne, Mor. 11544.
II. The Respondent's right is barred by the acts of those under whom he claims. When John Shepherd, on the death of Mrs. Grant, made up titles to the lands, he could only have done so on an agreement to hold the deed of 1761 as valid; for on the hypothesis of its being invalid his mother, as heir-portioner of the granter, was entitled to one-half of the lands, and all to which he would have been entitled would have been to that half from her death, but, passing by her, he made up his title to the whole under the deed of 1761, and so did his brother Alexander upon his death, and both of them until their respective deaths possessed the entire lands under these titles, to the exclusion of the children of the first daughter, who, on the hypothesis of the deed being invalid, were entitled to have enjoyed
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III. The acts of John and Alexander Shepherd amount to a ratification of the deed of 1761; to making valid that which otherwise might have been invalid, and such a ratification is binding, not only upon the party who makes it, but upon every remoter heir, whether such remoter heir takes under the party homologating or not. Ersk.III., 8, 99. Moreover, the Respondent is barred by his own acts from challenging the entail, for in the competition of brieves he joined issue with the Appellants upon their rights under it, as a valid and subsisting deed, while aware of the defects upon which he now challenges it.
IV. The Respondent's right of action is cut off by the negative prescription, and this is a plea which the Appellants are entitled to maintain, although they might not have established in themselves a title by the positive prescription. It is no
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The Solicitor-General and Mr. H. Robertson for the Respondents.—It is unnecessary to produce any argument or authority to shew that the erasure in the first branch of the destination is a vitiation in substantialibus; and any attempt to shew from other parts of the deed that the words on the erasure correspond with them, does not get over the objection of there being no evidence that the erasure was made by the maker of the deed. If the nullity could have been maintained successfully against the sons of the eldest daughter immediately after the entailer's death, it is impossible that any posterior change of circumstances could alter the rights of the parties. If an action of the nature of the present had been then brought by the younger daughters of the entailer, as his heirs-portioners, together with the elder daughter, it must certainly have prevailed, and had the pursuer obtained decree, reducing the entail, and declaring their rights as heirs-at-law, by what possibility could any party entitled to take under the subsequent branches of the destination have disturbed that decree at any future time? How could he have established the failure of the first branch of the destination, which must have been a condition precedent to his own right to take, while that branch was a nullity, and so declared? how could he have established his right to take under a destination commencing with “Whom failing,” when he could not shew who was the first disponee
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II. If there was any agreement express or implied, with John or Alexander Shepherd, it was in favour of the heirs under the entail, and the object of it was to support it as a valid and effectual deed; but the Respondent does not claim as an heir under the entail; he claims as heir-at-law, and against the entail as a nullity. Assuming, therefore, that there had been an agreement of the nature pretended, the Respondent is not under any obligation to perform it either legal or equitable. If John and Alexander Shepherd possessed at the expense of any one, it was at the expense of the heirs-at-law, who were thereby excluded, and if any one was to gain by the agreement, it was the heirs of entail, who were thereby to acquire a spes successionis. Neither, assuming such an agreement to have been made, are the Appellants in a situation to insist on its performance: for neither do they claim under the entail, but under a disposition from Robert Grant, the original Defender, made in derogation of the entail.
And with regard to the Act 1695, the Respondent does not represent either John or Alexander, but claims through his father and his grandmother, the daughter of the maker of the deed; neither did John or Alexander ever possess the lands in apparency. When John made up his title in 1790, both his mother and the eldest daughter of the entailer, his heirs-at-law, were alive, and his mother was still alive in 1807, when he actually entered to possession, on the death of Mrs. Grant, the liferentrix, and he made such entry under the title of his service as heir of entail. With regard to Alexander Shepherd he also
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III. If the deed be a nullity, as the Respondent maintains it is, there can be no room for the plea of homologation; it is impossible, by homologation, to make a deed where none exists. But no act of that nature has been done by the Respondent sufficient to bar his challenge, and he does not as to this either represent John or Alexander Shepherd so as to be bound by anything they may have done.
IV. Though the right to challenge deeds upon extrinsic nullities is cut off by the lapse of forty years, so that a deed ex facie good becomes so by the lapse of that period, it is not so where the objection is intrinsic, and apparent on the face of the deed. In such case no lapse of time will validate the deed, or cut off the right to challenge it, Ersk. iii. 7, 9. It does not make a difference that the objection cannot be made by way of exception, but requires to be made good by action of reduction, for in the case of Ainslie referred to by Erskine, the objection was taken by action of reduction. But if the negative prescription were applicable, there are no termini for its application to the present case. Till 1807, when the possession of the liferentrix ceased, it did not appear whether the entail would be founded upon as a title of possession, and no one had any interest to challenge it till then, and between 1807 and the date of this action forty years had not elapsed.
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The words “The eldest son living at the time of my decease,” are written on an erasure, and wherever they appear in the deed, which occurs several times, they are in like manner written on erasures.
Now if the part of the deed in which the vitiation occurs is a material part, or, according to the Scottish phrase, if the vitiation is in substantialibus, the deed becomes improbative, and no evidence can be received for the purpose of proving when or by whom, or under what circumstances the alterations were made. Here the erasure is in the dispositive clause, in the name and designation of the person who, on failure of heirs male of the body of the grantor, was to take the estate. It is impossible to contend that this is not an essential part of the deed, or that the vitiation is not in substantialibus. And indeed this seems scarcely to have been disputed.
The deed therefore being clearly improbative, no evidence can be admitted to prove when or by whom the alterations were made, and there is nothing on the face of the deed itself to shew that the alterations were made before the execution. The presumption of law therefore is that they were made afterwards ( Ersk. iii. 2, 20). But it is unnecessary to carry the case so
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Even admitting, then, that it were possible from the rest of the instrument to ascertain with absolute certainty, (which I I think it is not,) what were the words erased, they could not be restored, because that would be to determine, without anything to warrant it, that they had not been erased after the execution, and by the grantor, or by his authority, and with the deliberate intention of revoking the disposition.
But if the words erased cannot be restored, the remaining question will be whether those which are written on the erasure can be substituted in lieu of them. It is clear they cannot, for there is nothing to shew that they were inserted before the execution, and no evidence can be admitted for the purpose of establishing that essential fact. They are wholly unauthenticated. It follows, therefore, that this part of the deed is entirely inoperative.
How then does this affect the rest of the instrument? There is no doubt that a deed may be good in part, and bad in part. Where there are two independent provisions, the one may be vitiated by erasure, and the other may prevail, as in the case of a deed giving a legacy to A, and another to B. If the legacy to A be vitiated by erasure, yet the legacy to B may remain good. So also where there is a grant of an estate with a series of substitutions, and one of the later substitutions fails by reason of an erasure, that would not affect the previous estates. This was decided in the Balbeithan case, and as it would seem on the ground of those estates not being dependent on the subsequent defective limitation. But here the subsequent estates are to take effect after the failure of heirs male of
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Considerable reliance seems to have been placed in the Court below upon the ratification of the supposed disposition by John and Alexander Shepherd, with the acquiescence of all parties who had an interest in the matter, and even by James Shepherd himself, who instituted proceedings in the Court of Session founded upon the deed of 1761. But if there was in truth no disposition, no conveyance, (for this is the effect of the vitiation of the deed,) it is not easy to understand how there could be a ratification of it. To give effect to this supposed ratification would, in fact, be not to ratify but to make a disposition for the grantor, a disposition which he himself had not made.
Then as to the act of 1695, it appears to me to have no application to the present case. John and Alexander Shepherd, (the latter without right,) possessed the estate and made up titles, not as heirs-portioners but under the supposed disposition of 1761. The present claimant contests that disposition, and claims the estate under a different title, viz., as heir-portioner of his great-grandfather John Leith. The apparency therefore is in respect of a different title from that under which he claims. Other objections are stated to this defence in the opinion of Lord Wood, one of the consulted Judges, and to which I think no satisfactory answer has been given.
The only remaining point for consideration is the negative prescription relied upon by the Appellant. Now even admitting that possession under the deed of 1761 is to be calculated from 1790, the date of the investiture, and notwithstanding the
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As to the argument that this being an action to reduce the deed of 1761, the right being a mere right of action, is lost by the single effect of the negative prescription, the answer is that the deed being vitiated by erasure in substantialibus, and in that respect a nullity on the face of it, the rule does not apply, and that in a suit brought, as in this case, to recover the property, such an obstruction to the title may be removed notwithstanding the provision of the statute to which the Appellant refers.
I move your Lordships, therefore, that the judgment be affirmed.
Solicitors: Richardson, Connell, and Loch— Spottiswoode and Robertson, Agents.
