The Lord Advocate v. John Gordon, Esq. et è contra [1751] UKHL 1

UKHL
The Lord Advocate v. John Gordon, Esq. et è contra
[1751] UKHL 1 · 1751-05-21
found not competent to bring a declaration of irritancy on the ground of an act of contravention committed some time prior to the attainder.An entail prohibiting, under strict irritant and resolutive clauses, “any deed civil or criminal, or even treasonable, whereby the estate may be in any way evicted, forfeited,” &c.; and it being declared that any such deed “should only irritate the right of the committer thereof, but should in no ways affect the right of the next heir, albeit descending of the contravener's body,—Found, that by the attainder of the heir in possession, the estate was forfeited to the crown, not only during his own life, but so long as there should survive any issue of his body who would have been entitled to succeed under the entail, had there been no attainder; and further, that whatever interest might eventually arise to the attainted person under the substitution to “the heirs and assignees” of the entailer, was also forfeited to the crown.

The heir possessing under an entail being attainted,—it was

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[Elchies, voce Tailzie, No. 39. Falc. Mor. 4728.]

The estate of Park was settled by Sir James Gordon in 1713 under the fetters of a strict entail, the heirs under which were prohibited inter alia “to grant infeftments of annualrent out of the same, or any other right and security redeemable or irredeemable, nor to contract debt, or do any other deeds of omission or commission, civil or criminal, or even treasonable, (as God forbid) whereby the lands may be anywise burdened, adjudged, evicted, or become caduciary, escheat, confiscated, or forfeited.” It is further declared, that such debts “or crimes shall only irritate and make void the contravener's right, but noways burden, affect, or forfeit the said lands, to the prejudice of the next heir of tailzie,” &c.In 1746, Sir William Gordon of Park was attainted of high treason, and his estate being surveyed by the Exchequer, a claim was entered by his younger brother (the respondent) on the following grounds, viz. 1st, That Sir William having in 1738, granted an heritable bond over part of the estate whereon infeftment followed, an irritancy was thereby incurred, and consequently the estate did ipso facto fall and accresce to the claimant as next heir of entail. 2d, That by committing the crime of treason, Sir William did contravene the prohibitive and irritant clauses above recited, whereupon the estate devolved on the claimant;

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In answer to the first ground of claim, it was disputed that any part of the entailed lands was included in the bond; and at any rate the irritancy might have been purged by payment of the debt. But further, even if the claim upon this irritancy had been competent, it came too late, when brought for the first time against the crown, after the estates had been vested in it by the attainder; there having been sufficient time between the date of the bond in 1738 and the rebellion, to declare the irritancy. Craig de Feudis , L. 3. D. 6. sect. 17.Replied —Ignorance or inadvertence would not save Sir William from the irritancy. The claimant was not in mora in not declaring the irritancy sooner, having been abroad during the whole interval. His jus actionis subsisted for forty years; and in the statute, whence the crown derives its right, there is an express saving of “all rights, &c. which were binding on the forfeited persons, and might have affected the estate before the respective days and times whereon the same was vested in his majesty.”To the remaining grounds of claim, it was answered , 1st, that by 7 Annæ, c. 21. all persons convicted of high treason in Scotland, are made “subject and liable to the same corruption of blood, pains, penalties, and forfeitures as persons convicted or attainted of high treason in England.” And by 26 Hen. VIII. c. 13. all persons so convicted, forfeit the king “all such

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2. The act 7 Annæ, in regard to the forfeiture of entailed estates, excepts the issue of marriages contracted by the attainted person before a specified day; plainly establishing that in any case not falling under the exception, the descendants of the attainted person are equally aflected by the forfeiture; and the children of Sir William (who must exclude the claimant's pretensions as next heir of entail) would be in this situation.Replied —By the general spirit of the law of England, no man forfeited by his crime what he could not alienate when of full age. In this way, although estates in fee simple conditional, were forfeitable for high treason at common law, yet when by the statute of Westminster (2 and 13 Edw.

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Footnote

* A general reference was also made to several cases determined after the Rebellion in 1715.

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The Court, (16th Nov. 1750,) “find, that Sir William Gordon, the person attainted, being by the entail disabled from alienating the estate, charging the same with debts, or altering the course of succession in prejudice of the claimant, and the other heirs of tailzie, or from otherwise hurting or impairing their right or title to the said estate after his death, in any manner of way whatsoever; that, therefore, the estate and barony of Park is, by Sir William's attainder, forfeited to the crown only during his life; and find that the said John Gordon, the claimant, hath right to the estate after the death of the said Sir William Gordon. And also find that the irritancy alleged to have been incurred by Sir William Gordon, the attainted person, not having been declared nor any advantage taken of it before the forfeiting, that the forfeiture cannot be overreached or excluded on pretence of that irritancy: and decern and declare accordingly.”Entered 31 Jan. 1751.An appeal was brought by the Lord Advocate, from this interlocutor, so far as it finds that the estate is forfeited only during the life of Sir William Gordon.

Entered 13 Feb. 75

A cross appeal was brought by John Gordon, from the above interlocutor, so far as it finds that the forfeiture could not be excluded by the alleged irritancy committed in 1738.Pleaded for the Lord Advocate ,—1. The law of England concerning treason, (which is now the law of Scotland also,) makes every estate of inheritance forfeitable for high treason, without distinguishing whether it was or was not alienable by the consent or deed of the proprietor; and, as before the act of the 7 Queen Anne making the laws of treason

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2. Supposing the irritancy had been incurred, (which has not yet been proved,) the property did not thereby ipso facto pass from Sir William Gordon and vest in the claimant. To operate such transmission, a decree of declarator was necessary, and no such decree having been obtained, nor even action brought before the attainder, the estate remained in Sir William, and therefore being by the attainder forfeited to the crown, it is not now subject to be carried off on pretence of an irritancy so long neglected to be enforced.The claimant would derive no benefit from the irritancy, even if it were declared, there being issue male existing of the body of Sir William.Pleaded for Mr. Gordon: —The legal effect of an entail containing the necessary clauses, is to prevent every heir of entail from selling, charging, or encumbering the estate; and all deeds to the contrary are void.Although by the act of Queen Anne forfeitures for high treason in England are extended to Scotland, yet as no estates can now be created in England, analogous to the jus crediti of heirs of entail under the act 1685 in Scotland, such rights must, in applying to them the law of England, be considered as a limitation of particular estates, independent of each other, and consequently forfeitable only as bare freeholds or liferents, and not affected by the acts of any of the other heirs. Entailed estates in England, when they were first

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It is agreeable to the principles of natural justice, that no man by his crime should forfeit the right of an innocent person, and this is consonant both to the spirit of the law of England, which never allows a party to forfeit what he cannot alienate, and to the maxims of the law of Scotland declared at the revolution, and embodied in the statute book in 1690.2. In the vesting act, (20th Geo. II.) there is an express saving of all rights which were binding on the forfeited persons, and might have affected the estate before the attainder. The right resulting from the irritancy was a right vested in the claimant at the time of the forfeiture, as the interlocutor itself admits. All then that the claimant omitted, was to follow out this right with possession, by a declarator. But as the right is preserved by the express words of the statute, so a remedy is likewise given by the statute for every right so preserved; and, consequently, it is directly repugnant to the plain words and meaning of the statute, to say that the right is barred, or the remedy taken away by the forfeiture of Sir William Gordon.16 May 1751After hearing counsel, the following question was put to the English judges for their opinion, viz. “Supposing that, by the law of Scotland, an estate tailzie, with prohibitive irritant and resolutive clauses, is an estate of inheritance; and supposing also, that by the law of Scotland, no estate or interest was vested in Sir William Gordon, by

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21 May.
“The Lord Chief Baron of the Court of Exchequer, delivered the unanimous opinion of the judges, as follows, viz.
“That the estate and interest in the barony and lands in question, which was forfeited to the crown, under the limitations of the said settlement, by the attainder of Sir William Gordon, was not only during the life of Sir William Gordon, but so long as there shall be any issue male of his body which would be inheritable to the estate tailzie in case he had not been attainted; and that the reversionary interest in the fee thereof, limited by the settlement to the heirs and assigns whatsoever of Sir James Gordon, on failure of the heirs-male of the body of Sir James Gordon, and the determination of the several estates by the other substitutions therein contained, was also forfeited; supposing that, by the laws of Scotland, such reversionary interest was in Sir William Gordon at the time of his attainder.”
Judgment.“It is, after debate, ordered and adjudged, &c. that the first part of the said interlocutor, whereby the Lords of Session found, “that Sir William Gordon, the person attainted, being, by the entail, disabled from alienating the estate, charging the same with debts, or altering the course of succession in prejudice of the claimant and the other heirs of tailzie, or from otherwise hurting

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Counsel: For appellant, D. Ryder, Wm. Grant, Wm. Murray. For Respondent, A. Hume Campbell, Robert Craigie, Alex. Lockhart.Vide case between the same parties, 4 Feb. 1754. Infra .