Robert Scott Moncrieff, Esq. v. Wm. Cunningham, Esq. of Bonnington [1804] UKHL 4_Paton_652

UKHL
Robert Scott Moncrieff, Esq. v. Wm. Cunningham, Esq. of Bonnington
[1804] UKHL 4_Paton_652 · 1804-07-20
In the entail of the estate of Bonnington, there were perfect prohibitory and irritant clauses against the sale of the estate; but the resolutive clause, which contained an enumeration of the acts which were to be deemed a contravention of the entail, did not mention sales;—held that the entail was not good to protect against the sale of the estate.The question here was, whether the entail of Bonnington, in possession of the respondent, was sufficiently protected against sales of the estate? And whether the sales made by him of part of the estate to King and Gibson, in the belief that the entail did not validly protect against sales, were good and effectual? In an action raised by the respondent to have it found that the sales were effectual, the appellant was called as a party, being the next substitute after the death of the respondent and his two sisters, neither of whom had any issue.The entail contained the following prohibitory clause, declaring that it should not be lawful “to sell, annailzie, dispone, dilapidate or put away, the foresaid lands and estate, or any part or portion thereof, nor to innovate or infringe this tailzie and order of succession hereby made by me, nor to contract debts, nor do any other fact or

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“Whilk haill debts and deeds so to be contracted, done, or omitted by them, in prejudice or defraud, as said is, are not only hereby declared void and null, ipso facto , be way of exception or reply, without any necessity of declarator to follow thereupon, in so far as the same may burden and affect the said estate.”
Then follows the resolutive clause, upon which the present question is raised; “but also it is hereby provided and declared, that the said heirs of tailzie who shall contravene and incur the said clauses irritant, or any of them, either by not bearing, assuming, using, and carrying the said name and arms of Cunningham , or be the saids heirs female not marrying a gentleman of the name, or who shall assume the name, and bear and carry the same sirname and arms in manner respective forward, or who shall break or innovate the said tailzie, or contract debts, or commit any other fact or deed of omission or commission, whereby the said lands and estate may be evicted, or anywise affected in manner foresaid, that then, and in any of the said cases, the said persons so contravening shall forfeit, amit, and tyne their right and succession to foresaid lands and estate; and all infeftments, and pretended rights thereof, in their persons shall from thenceforth become extinct, void and null.”The respondent maintained, that though there were clear and sufficient fetters against selling in the prohibitory and irritant clauses, yet that the above resolutive clause did not sufficiently protect against sales, and therefore that the entail was ineffectual against sales of the estate.Mar. 8, 1804.The appellant, on the other hand, contended that this was a sufficient resolutive clause, resolving the right of the heir, on his committing “any other fact or deed of omission or commission , whereby the said lands may be evicted, or anywise affected in manner foresaid .” That selling was just an act of “ commission ,” and when this was taken in connection with “ in manner foresaid ,” there is an immediate reference made to the clause immediately preceding,

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The Court, on report of Lord Craig, Ordinary, pronounced this interlocutor:—

“Find that the dispositions libelled by the pursuer, are valid and effectual to the purchasers, and decern and declare accordingly.”
Against this interlocutor the present appeal was brought.Ante p. 231.Pleaded for the Appellant .—Admitting that entails are to be strictly interpreted, and that their restrictions are not to be extended by implication, yet being authorized by the act 1685, they ought to receive a fair interpretation. The words in the resolutive clause of this entail are sufficient, upon such fair interpretation, to bar a sale of the estate; for though they have considerable similarity to the words of the resolutive clause in the case of Tillicoultry, yet it is submitted, that the difference of expression which has been noticed, does fully justify a different result.Pleaded for the Respondent .—The limitations are not to be extended, by inference or implication, beyond what is contained in the entail itself; this is a rule universally admitted, in the construction of all entails, in the law of Scotland; it is even received in questions betwixt heirs of entail themselves, who are personally bound by every limitation the entailer may have thought fit to impose upon them, as the condition of their holding the estate. Much more where the limitations are directed against third parties, as in a prohibition to sell or contract debt; in order to render these effectual against third parties, it is absolutely necessary these limitations shall be accompanied by fit irritant and resolutive clauses, in terms of the act 1685, c. 22; and unless this be done, the estate cannot be secured from sale, however express and clear the prohibitory clause may be. In the present case, the resolutive clause omits to strike at or enumerate sales among the acts therein mentioned, which brings the present case precisely within that of Tillicoultry, where such an omission proved fatal to the entail, in terms of the decision of the Court of Session, affirmed in the House of Lords. The resolutive clause is essentially in its nature an enumerating clause—which enumerates the several acts prohibited in the prohibitory clause, but does not include among these selling, which therefore invalidates the entail.

After hearing counsel, it was

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Ordered and adjudged that the interlocutor be, and the same is hereby affirmed.Counsel: For Appellant, Wm. Alexander, Arch. Cullen. For Respondent, John Clerk, David Cathcart.Note .—Unreported in the Court of Session.