Sir Hew Hamilton Dalrymple of Bargany and North Berwick v. Mrs. Fullerton and Husband [1797] UKHL 3_Paton_631

UKHL
Sir Hew Hamilton Dalrymple of Bargany and North Berwick v. Mrs. Fullerton and Husband
[1797] UKHL 3_Paton_631
A party was said to have contravened the prohibitions of an entail, and to have made up titles not under the entail, but otherwise, upon which he possessed unchallenged by the next substitute heir of entail for more than forty years. In a question with an heir-substitute, who was a minor at the time this contravention took place, Held in the Court of Session, that in this case , in computing the period of prescription, the period of the substitute-heir of entail's minority was to be deducted, and therefore that there was no sufficient title to exclude. On appeal to the House of Lords, the case was remitted, with an instruction to the Court of Session to review their interlocutor. And opinion indicated, that if the pursuer could establish that she was in the situation of next heir-substitute of entail, that she might plead her minority.Mr. John Hamilton, otherwise Dalrymple, second son procreated between Sir Robert Dalrymple of Castletown, and Joanna Hamilton, only daughter of John, Master of

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June 1688.Prior to this deed in 1742 the lands stood devised thus: In the year 1688, Lord Bargany had executed a deed of entail, by which the succession to his estate was limited to his eldest son John, Master of Bargany, and the heirs male of his body; whom failing, to William his second son, and the heirs male of his body; whom failing, to the heirs male to be procreated of his own body; whom failing, to the eldest heir-female of his own body, and the descendants of her body without division; whom failing, to the next heir-female to be procreated, &c.This deed contained a condition, that the heirs of entail should use and bear the surname, arms, and designation of Hamilton of Bargany, but without any prohibition to use any other name or designation along with it ; and it also contained the usual irritant and resolutive clauses against contracting debt, selling the estate, or altering the course of succession which it prescribed.1707.John, Master of Bargany, the institute in this entail, died before his father in 1709, leaving an only daughter, Joanna, who, in 1707, had been married to Sir Robert Dalrymple of Castletown, eldest son of Sir Hew Dalrymple of North Berwick, Bart., Lord President of the Court of Session. Under the limitation in the entail, William, afterwards Lord Bargany, succeeded to the deceased, and was accordingly served heir of tailzie and provision in general to John, Master of Bargany.William, Lord Bargany, died in 1712, leaving one son, James, and a daughter, Grizel, afterwards married to Thomas Buchan of Cairnbulg. James became Lord Bargany, was served heir of tailzie and provision in general to his father, and, dying in 1737, without issue, in him ended the male succession of John Lord Bargany, the maker of the entail.March 1739.

Upon this event, a question arose, who was entitled next

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1707.Sir Robert Dalrymple was the eldest son of Sir Hew Dalrymple of North Berwick, (Lord President of the Court of Session). By an entail executed by his father, (the said Hew), he settled his estate of North Berwick on the heirs male of his son, Sir Robert Dalrymple's marriage with Joanna Hamilton, with a proviso, that if at any future period the estate of Bargany should devolve upon the heir male of that marriage; in that case, by accepting the succession to Bargany, the heir should forfeit his right to the estate of North Berwick; reserving ample powers to discharge or qualify the whole, or any part of the prohibitory or irritant clauses. Sir Robert Dalrymple died in 1734, leaving three sons, Hew Dalrymple, afterwards Sir Hew Dalrymple the eldest, the father of the appellant John Dalrymple (afterwards called Hamilton) the second, and Robert, the third son, who died without issue; and two daughters, Marion, grandmother of the respondent, and Elizabeth, deceased.Nov. 1, 1734.Sir Robert Dalrymple's father, the maker of the entail of North Berwick, being still alive, when his son died, having survived him for many years, he seemed to have altered his views as to preserving a separate representation in his family, for, by deed of this date, he declared that the non-inserting the said clauses relating to the estate of Bargany, in his grandson's service, as heir of tailzie, should not infer any irritancy against him .1734.On his death, his grandson succeeded, became Sir Hew Dalrymple, and served heir in special, and was feudally invested with the estate of North Berwick, free of any limitation or restraint to prevent him or his descendants from holding it and the estate of Bargany together, and under

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Aug. 1740.1742.Before his death, and in 1739, the succession to the Bargany estates had opened; and in the competition which arose thereon, he, Sir Hew Dalrymple, was preferred as the descendant of the body of Joanna Hamilton, under the destination in the entail of that estate of 1688. Although he was thus successful, yet he never made up titles; and afterwards by a deed, reciting the two entails of Bargany and North Berwick, “he repudiated and refused to accept of the succession to the estate of Bargany,” in favour of John Hamilton, otherwise Dalrymple, the next heir of tailzie, and “consented” that he should make up titles to the same. Accordingly, the crown charter and infeftment in 1742, above referred to, was expede by Mr. Hamilton. This charter ran as follow:
“Dilecto nostro Joanni Hamilton de Barganie, jurisconsulto, filio secundo demortui Domini Roberti de Castletown procreat, inter ilium et demortuam Dominam Joanna Hamilton unicam filiam demortui Joannis Magistri de Barganie et sic hæredum femellam demortui Joannis Domini Barganie, ejus avi et hæredibus quibuscunque ex corpore dict. Joannis Hamilton; quibus deficientibus alijs hæredibus quibuscunqueex corpore dict. Dominæ Joannæ Hamilton procreat inter illam et dict. Dominum Robertum Dalrymple absque divisione; quibus deficien. alijus hæredibus femellis ex corpore dict. Joannis Domini Barganie absque divisione,”
&c. Then followed the strict prohibitory irritant and resolutive clauses, with limitations precisely similar to the original tailzie of Bargany.1780.In 1780, Mr. Hamilton, in contravention of the entail 1688, executed a disposition of the estate of Bargany, by which he disponed the same to himself and the heirs of his body, “whom failing, to Sir Hew Dalrymple, Bart., and the heirs of his body , without division, whom failing, to the next heir of the body of the said John Lord Bargany, and the other heirs of entail, contained in the entail of 1688, executed by the said Lord John Bargany,” and infeftment was taken upon by this disposition.Upon the above charter, 1742, Mr. Hamilton enjoyed the estate, without challenge, for forty years, until the respondent brought, as above set forth, the present reduction and declarator against the late Mr. John Hamilton (who died during the action) and the appellant.This action was founded on the contravention of the entail, as to the Bargany estate, in the person of Sir

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In defence against this action, the appellant produced his charter of 1742, and sasine thereon, as a prescriptive title to exclude. Against this title to exclude, it was pleaded, 1st, That the charter and sasine were themselves brought under reduction. 2d, That this investiture was not secured by the positive prescription, because of its interruption by Mrs. Fullerton's minority from 1768 to 1784.The case, then, resolved itself into the question of prescription, and whether that prescription had been interrupted by Mrs. Fullerton's minority? Opposed to this plea of interruption of prescription, two grounds were taken: 1st, That the years of minority do not in any case form a deduction from the positive prescription; 2d, That even admitting the contrary, yet that substitute heirs of entail were not entitled to plead minority.Mar.11, 1795.The Lord Justice Clerk, Ordinary, found, “That in computing the period of prescription, the years of the pursuer's minority are not to be deducted; and in respect that the charter and sasine 1742 are ex facie unexceptionable, and that no nullity or objection does from thence appear to lie against them; and that it is averred by the defender, and not denied by the pursuers, that the defender has in virtue of that investiture, possessed the estate of Bargany from the date thereof to the commencement of this action, without any challenge or interruption, finds that the defender's right to the estate is secured to him by the positive prescription, and that he is entitled to hold and possess the estate, under the foresaid investiture, in time

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Feb. 9, 1796.Dec. 6, 1796.On reclaiming petition the Court, of this date, altered, and found, “that in this case , in computing the period of prescription, the years of the pursuer's minority are to be deducted, and therefore that the defender has not produced a sufficient title to exclude, and remit to the Lord Ordinary to proceed accordingly.” And, on a second reclaiming petition, the Court adhered.Against these interlocutors the present appeal was brought to the House of Lords.Vide Ante.Pleaded for the Appellant .—1. Minority does not in any case suspend the course of the positive prescription of land rights. It only operates as an exception to the negative prescription. The deduction of the years of minority would be totally inconsistent with the peculiar nature of the positive prescription, as understood in the law of Scotland, contradictory to the just construction of the act of Parliament 1617, c. 12, as well as to the statutory views of the legislature in framing that statute, and subversive of the security to land rights thereby intended to be protected. 2. But, assuming that minority interrupted both the positive as well as the negative prescription in the act 1617, it does not apply to the case of a substitute heir of entail, challenging after the lapse of forty years. This was decided in the case of Macdougall of Mackerston in the year 1739, and by the case of Monypenny in the House of Lords in 1757, which decisions rest upon the principle that there is an essential distinction between the case of substitute heirs of entail, (each of whom has a vested right of action to support the entail, which he may exercise at any time), and the common case, where the right of action is confined to the individual immediately entitled to succeed and injured by the intrusion. The same principle and distinction, taken not from ideas of expediency conceived by the courts of law, in opposition to the words and spirit of the statute, but upon a fair and just

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Pleaded for the Respondents .—1. Minority is an exception pleadable against the positive as well as against the negative prescription. The exception in the act 1617 is coextensive with, and applies to the whole enactments of the statute, and there is nothing in the wording of the act to countenance the proposition which would confine it to the one kind and not to the other. Neither equity nor expediency can justify a construction which would limit the operation of the statute so manifestly to the disadvantage of minors, whose rights, it is reasonable to presume, were the chief object of the legislature in framing the act. Sir Geo.

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2. The appellant, when arguing that it is matter of uncertainty whether the respondent, had she brought her declarator within the forty years of the acts of contravention, would have succeeded or not, forgets entirely that we are here in a question upon a title to exclude, in which, from the very nature of the case, it must be assumed that, had she brought her action within the forty years, she must have succeeded.It is a mistake to say, that after the contravention was committed, the respondent had only a contingent right to the estate or spes successionis . Before the acts of contravention were committed, she certainly had no more than a chance to become entitled to the estate. But the moment the prior substitutes failed, or contravened the entail, she became the person to whom de jure the estate belonged. She had then a right to enter into possession. It is stated that Sir Hew Dalrymple, and not the respondent, was the next heir to Mr. Hamilton. It is sufficient to answer, that both contravened the entail, and by that contravention the succession opened to her; so that her plea of minority is a sufficient answer to the title to exclude.Vide Ante.Vide Ante.

But, 3. In regard to the plea that minority is not to be

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After hearing counsel,

Lord Thurlow said, *

“My Lords:

I shall not need at present to enter into all the topics in this

Footnote

* These notes, together with others bound up in a volume, were most kindly presented to me by the late Lord Anderson, recently before his death; than whom, in such questions, and of feudal law generally, none was more eminently distinguished.

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I have attended to the hearing of this cause with more dissatisfaction than I remember to have felt on any similar occasion. It is a lamentable thing, that, when parties are full of, and ready to argue every thing that is material in a cause, the practice of the Court of Session should be such, that, instead of the obvious and apparent merits, the Court is to go to a collateral point. With regard to the practice, I own that I am in a state of invincible ignorance; abstractedly, I see no reason for it; and I cannot find its source or authority in any writer of the law of Scotland; all I can learn is, that it is the practice.I shall now state to your Lordships the subject of this cause, and the several points which it contains. I wish my health had permitted me to investigate them with more accuracy, and that it had not made me forget some part of the argument which has been urged; but I believe I have not forgot any material part of it.Last century, an entail was made of an estate in Scotland, in which, as it stands, Sir Hew Dalrymple and his children are the nearest substitutes. Mrs. Fullerton, the pursuer in the present action, is the tenth substitute. When the action was brought, she, by the form of the Court, called for production of certain deeds; because no judgment could be had in the reduction of those deeds without production. In her summons, she recited the entail, and the descent of the estate to Sir Hew Dalrymple, the appellant's father, as heir female of John, Lord Bargany, the maker of the entail. She then stated, that upon the occasion of another estate coming to Sir Hew Dalrymple (the estate of North Berwick) Sir Hew, in 1740, executed a renunciation of the estate of Bargany in favour of his brother John Dalrymple, afterwards John Hamilton, qualified thus, that upon the failure of the issue of John Hamilton, and another brother, if the tenure of the estate belonging to the Dalrymple family would permit, Sir Hew and his descendants might claim the estate.This is the only instrument stated by the respondent, as giving away the estate. In consequence of it, John Hamilton brought an action, stating, that in respect of his brother's renunciation, he was entitled to serve himself heir under the entail, and take the estate. In this action, decret in his favour passed in absence, though this decree was not binding on third parties He was by it declared next heir, and entitled to be served as such; and he was served accordingly, and took out a charter thereon, which was followed with sasine.All these alterations were antecedent to the title of the present pursuer; her right was not diminished, nor was she barred by these deeds, from any claim which could accrue to her under the original entail. These transactions took place in 1742, and in 1793 the present action was brought, reciting the entail, stating the transactions

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To this action the defender pleaded his charter 1742, and prescription from forty years possession thereon. In reply, the respondent contended, that she had been a minor when part of the prescriptive term was current, and had remained a minor for such a number of years that the prescription was not run. The Court of Session, after some previous interlocutors to the contrary, at length allowed this plea; and this point is now brought before your Lordships upon appeal.This deduction of minority, the respondent pleaded upon the act 1617. The statute introduced the positive prescription, as it is called, into the law of Scotland; and it enlarged and corrected the negative prescription. The negative prescription, is a title in bar of all action for claiming a right after the lapse of forty years. This is the only sort of prescription known in this country; and it is the only sort known in the Roman law; the positive prescription then introduced into the law of Scotland was novel in that country, and is unknown in all others. This, instead of applying the prescription to the person , applied it to the possession , whether upon a good or bad title, and made the lapse of forty years a sufficient confirmation of it. I have considered this act 1617, with as much attention as I could; and if it had fallen upon me to decide the question, I should have held that the last clause in the act relative to the deduction of minority, had a reference only to the negative prescription; not only because the grammatical construction required such an interpretation, but because the exception is contrary to the nature of the positive prescription. But this point was decided differently a long time ago. It is not impossible to interpret the statute so as to justify that decision; and it would be dangerous to bring the matter into question now.What is the effect of this decision when applied to entails? Mr. Erskine said at the bar, that they were excepted from this rule, otherwise they would never prescribe; but all difficulty is cleared by this, that every heir of entail has an independent right of action; and thus prescription will apply to him as well as to a stranger, and so I think it does. It was insisted, that it would be inconvenient to allow deduction of minority to all the substitutes in an entail: for, on account of their number, the prescription would never run. This reasoning, however, proceeds upon a mistake; for no case could occur where the prescription could run to more than sixty-one years, as every substitute has an independent cause of action, and as he must come within forty years of the original cause of action, it is not worse to allow the deduction of minority to all the substitutes than to one individual, against whom the prescription could only run for sixty-one years. If not in existence at the time of the contravention, the prescription would not begin to run till his existence. It would

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Upon these grounds, I have no difficulty to say, that if this case be new, the Respondent comes in time to bring her action: but it appears, that if your Lordships were to decide the question thus, you would go beside the opinion of every judge in a learned court. The judges who were in favour of the Respondent, held her to be first substitute under the entail; and it was avowedly upon that ground that they decided the question. The other judges held it not a matter of much moment, whether she were first or last substitute, because, in an entail, which was likened to a corporate body, a familia , it would run to perpetuity if the deduction of minority were allowed to any substitute heir. In support of this, the case of Maclellan's children has been quoted, but no other case upon this point was stated at the bar. It is possible that that case may have been decided upon different grounds; and, at all events, I have no difficulty to say, that I cannot assent to that case, as pleaded by the appellant. In that case, some difficulty occurs, by its being an undivided right in the children, which the trustee might divide; but he was the only person who could bring an action on the bond; and, after a lapse of forty-three years, no person could bring an action upon it. But, supposing it were true that the case was decided upon the ground of a joint right, two judges, eminent for their learning and abilities, the Lord President and the Lord Justice Clerk, state their opinions, that if one joint creditor were major during the currency of prescription, they would not allow the deductions of the minority of any of the other creditors. With regard to the family of Maclellan, it is not stated to us that the forty years had run against any of them.But upon this point, I will speak my opinion openly, as I conceive it will be proper to send back the cause to be further considered by the Court of Session. It is impossible to qualify the several rights of action competent to the heirs of an entail by the idea of a familia or joint right. The estate is to be enjoyed separately and distinctly by a series of heirs, each in their turn, exclusive of all others; it is distinct in its commencement, in its enjoyment, and in its conclusion. Nor is it an undivided possession. The same holds of estates tail in this country, they are neither joint in their origin, nor in their possession. I therefore hold it inadmissible, that prejudice could arise to any one heir from what happens to another.The judges seem to hold, and my mind is considerably in doubt upon the subject, how far certain cases have gone to controvert what I quoted from Mr. Erskine's book; but it is difficult to say what ground or ratio decidendi prevailed in any of the four cases stated at the bar. In the case of Mackerston, as stated by Kilkerran, Thomas Macdougall took the estate in 1669, and there was no question of

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In the case of Kinaldie, unless the minority of other heirs than the pursuer were deducted, it would not have saved the prescription.In the case of Auchendachy, I have not a report of the decision, but it is not necessary for me to examine it; it was a matter between creditors, and has nothing to do with the present question.I do not think, that upon examination, the Court will be precluded by these cases from finding, that every different heir of entail must have his own minority allowed or not allowed, as his situation may entitle him.But what can your Lordships do here? Several material questions, it appears to me, must be solved before we can do any thing. 1st. Whether the present action be not jus tertii to the respondent, whose right under the original entail, was not prejudiced by the alleged contraventions? 2nd. Whether it be possible to qualify a forfeiture against Sir Hew for himself and his children, after his own death, there being a great difference between the competency of an action for replacing an estate under an entail, and the forfeiture of that

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I should think it wrong in the present case, for a Court of appeal to enter into this point, especially as it relates to the law of Scotland, with which your Lordships are not so intimately acquainted. I should think it the safest mode, to remit the matter to the Court of Session, to have it fairly stated and discussed, before being drawn to a determination upon it.”Lord Chancellor Loughborough .—“The noble and learned Lord has so effectually disentangled this cause from the difficulty

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I too feel the impossibility of coming to any decision upon this cause, as we cannot follow up the ratio decidendi , nor find upon what state of the case the conclusion assumed as true was drawn. Both parties have seemed to consider this question as a simple proposition; but the opinions of the judges, for or against either party, all clearly evince that this is not a simple but a complicated proposition. On the point upon which a determination has taken place, one part of the judges contend that the minority of no substitute heir of entail was to be deducted; on the other side this was not denied; but the judges took a distinction, that the first substitute after the persons contravening, was entitled to deduction of the minority; and they assumed that Mrs. Fullerton is such first substitute. It is obvious however, that she is not in that order under the entail.In an action of declarator, it is not in general necessary to enter further into the title of the pursuer than was done in the present case. There, if it be contended that the title of the pursuer is bad because a possession of forty years has run against it, the only question will be, whether or not such possession has been bad? But the case is different, where the action arises between privies in blood, where the pursuer sets forth the entail, and certain acts of the other party, which are stated to be contraventions; and the conclusion is thence drawn, that she is heir of entail, entitled to take possession. In the present cause, that point is no where determined; but, according to the printed opinions of the judges, there is not one who does not go to the full extent, that if Mrs. Fullerton be a remote substitute, she would not be entitled to deduction of her minority.In order to avoid adjudication upon this point, and to give the Court room to consider the case with attention, and, as I agree with the statement given by the noble and learned Lord, I therefore move, That the cause be remitted back to the Court of Session in Scotland to review the interlocutors appealed from, and to consider how far the validity of the title to exclude set up by the defendant is in this case involved with the title set up by the pursuer to sustain the action of reduction and declarator, as having become the nearest substitute under the deed of entail in the manner alleged on her behalf; and if the Court shall hold these questions to be in this case involved with each other, that they do pronounce an interlocutor for or against that title, and also on the effect which such judgment may have upon the interlocutors directed to be reviewed.”

Accordingly it was

Ordered and adjudged that the cause be remitted back to the Court of Session in Scotland to review the interlocutors appealed from, and to consider how far the

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Counsel: For Appellant, Henry Erskine, Geo. Ferguson, Thomas Thomson. For Respondents, Sir John Scott, W. Grant, J. Anstruther, Wm. Adam, Wm. Tait.