Turner and Watson v. Turner and another [1813] UKHL 1_Dow_423

UKHL
Turner and Watson v. Turner and another
[1813] UKHL 1_Dow_423
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS During the Session , 1812–13. 53 Geo . III.FROM SCOTLAND.SCOTLAND.APPEAL FROM THE COURT OF SESSION.

No. 38

Turner and Watson Appellants v. Turner and Another Respondents

July 1 , 1813 .ENTAIL.Entail , with prohibition against alienation, and against “ letting tacks in diminution of the true worth and rental may be paid for the said tacks. ” Lease of part of the lands for 1000 years, with growing timber, and mines and minerals , at a rent below that which was paid at the time of the expiration of the preceding lease of the same lands. This lease was reduced by the Court of Session on the ground that it was an alienation ; and the judgment was affirmed by the House of Lords on the ground that it was in diminution of the true worth and rental of the lands at the time of the expiration of the preceding lease.This was a question as to the validity of a lease for 1000 years, under an entail containing a prohibition against alienation and letting at a diminished rental.Settlement in the will of John Turner. 1688.John Turner, merchant in Dantzic, (a native of Aberdeenshire,) who died in 1088, by his last will and testament, directed certain executors and trustees

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Sept. 13, 1693.May 16, 1694. Estates purchased by executors, &c.Entail.The executors first purchased the estate of Rose-Hill, now called Turner-Hall, yielding 41 ½ chalders

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Prohibition against letting tacks in diminution of the rental, and against alienation.Irritant and resolutive clauses.
“Providing, like as it is hereby specially provided and appointed to be contained in the infeftments to follow hereupon, that it shall no ways be lawful to the said Robert and John Turners, and them and the other heirs of Tailzie foresaid, to sell, annalzie , and dispone the lands, and others above written, or any part thereof , heritably and irredeemably, or under reversion, one or mair; nor to grant infeftments of annual rent, or yearly duties, greater, or smaller, forth thereof; nor to let tacks of the same diminution of the true worth and rental may be paid for said tacks , without being obliged, nevertheless, to raise the rental in manner after provided; nor to contract debt, or burden the said lands, nor do any other deed whereby the samen may be evicted, apprised, or adjudged from them, or any ways impaired to their prejudice .”

After some other provisions, the

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“And if the said Robert and John Turners, or either of them, or their heirs of tailzie above written, shall contravene, or do in the contrair, in any point of the premises, then not only shall all such deeds be void and null of themselves, and no ways binding or obligater to infer any action, personal or real, against the next heir of tailzie of the lands, mill lands, and others foresaid; but also the persons contravening, and descendants of their body, shall forfault, amit, and tyne all right, title, and interest they have, or can pretend, to the lands and others foresaid, ipso facto; and the same shall pertain, descend, and belong to the next heir of tailzie, to establish the rights of the lands, and other foresaid, in his person, by service and retour, to the person immediately preceding the contravener, or by way of declarator, or any other manner of way, without being liable for any of the contravener's debts or deeds, or the debts of the predecessors abovementioned.”
Sept. 23, 1763. Lease for 1000 years, of part of the entailed ands, from Respondent's ather to Appellant's father.In 1763, John Turner, one of the heirs of entail, executed to George Turner, of Menie, the Appellant (Turner's) father, a lease of the lands of Newark and Tipperty for 1000 years, reserving a rent or tack duty of 950 merks Scots, of which 850 were to go towards the payment of the mortifications upon the estate. The lessee also agreed to pay the 100 l . and interest which had been charged on the estate as above, and the non-entry duties, which a former heir of entail had neglected to discharge. The extinguishing of these burdens was stated in

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Sub-lease to one (Mackenzie, of whom Appellant Watson purchases.At the expiration of the previous leases, (1766,) George Turner (before the death of the lessor) entered into possession of the lands; and, at his death, was succeeded by the Appellant, his son and heir, who subset the lands to one Keneth Mackenzie for fifty-seven years; and this sub-lease was purchased by the Appellant Watson, who, it was stated, with the full knowledge and acquiescence of the heirs of entail, laid out about 9000 l . in improving the farm.1802. Action of reduction of lease.Reasons of reduction.On the death of John Turner, in 1802, an action of reduction of the lease in question was raised by his son, Keith Turner, father of the Respondent, John Turner. The material reasons in the summons of reduction were:—
“1st, The tack, or feutack, and right of infeftment, is so very far beyond and different from the usual nature and duration of leases, that it is, to all intents and purposes, an absolute alienation of the lands, &c. 2d, The tack and right of infeftment was granted in defraud of the subsequent heirs of tailzie, for far less rent than the value of the lands, or even the actual rent thereof, at the date of the same and since.”

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Certain preliminary objections were stated on the part of the Appellants:—

Preliminary objections to reduction.March 6 & 7, 1801.Mackie v. Dalrymple , Nov. 23, 1798.2d Action, Oct. 21, 1804.1st, If the Respondent's grounds of reduction were correct, his father had forfeited for himself and his descendants; and the decisions of the Court of Session in Little Gilmour v. Caroline Hunter , and Dick v. Drysdale , were cited in support of this objection. The answer was, that as no action had on this ground been brought against the alleged contravener, none such was competent after his death against the next heir of entail; and in support of this answer, the case of Mackie v. Dalrymple was cited. But further, in order to get rid of this objection, Thomas Andrew Turner, the next heir of entail, failing issue male of the Appellant (Turner's) father, brought another action jointly with Keith Turner.Erskine, b. 3. t. 7 s. 41.2d, Prescription (as against the joint action.) To this it was answered, 1st, That though the lease was dated 1763, possession had not been taken till 1766; that prescription only began to run from the latter period; and that therefore the time (forty years) had not elapsed before the commencement of the joint action. 2d, That though the prescription were to be considered as having begun to run from the date of the lease, it had been interrupted by the previous action of Keith Turner, and by the minority of Thomas Andrew Turner. ( Vide Mackie v. Dalrymple .)May 14, (15.) Inrerlocutor of the Court of Session, reducing the lease on the ground of alienation.The Lord Ordinary at first refused to sist proceedings in the previous action till the other came into Court, and repelled the reasons of reduction; but afterwards, on representation, he recalled the

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1st, Whether this lease was an alienation ?Mr. Adam and Sir S. Romilly (for Appellants.) The will contained the instructions for the entail, and the heirs were only bound by the entail in as far as it was conformable to the will. The object of the testator was merely that the heirs of entail should have fifty chalders of victual yearly rent. There was no prohibition against leases of any duration, if granted without diminution of the existing rents. Entails were “ strictissimi juris , so that no prohibitions nor irritancies were to be inferred by implication.” (Ersk. b. 3, t. 8, s. 29.— Duntreath case, 1769; decided in Dom. Proc. April 15, 1771. — Stewart v. Home , July 7, 1789; Diet. vol. 4, p. 339.— Tillicoultry case, 1799—1801. Fac. Coll. No. 99.)

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they (the heirs of entail) shall not heighten their tenants' rents, neither put them out of their lands .”This could not be intended as a personal favour to the tenants in possession at the time, as the lands were not then purchased. The will ought to govern the entail, and the lease in question was contrary neither to the letter nor the spirit of the instructions of the testator.Another point was, that the lease could not at any rate be void as against Keith Turner, who had stood for nearly forty years observing the improvements going on upon the estate, without challenging the lease; and Thomas Andrew Turner had no right as yet to insist in the action.2d, Whether the lease was in diminution of the rental?

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The only rental which the will, or testamentary settlement, supposed and presumed was not to be diminished, was the rental of 50 chalders, of which the estate was to consist at the date of the purchase. The presumed prohibition, then, against letting leases at a diminished rental, must have reference to the original rental, as ascertained at the time of the purchase. The entail likewise declared that the heirs
“ should nowise have power to heighten, raise, or augment the rent of the said land, as the same is presently paid .”
It lay, then, with the Respondents, as a preliminary step, to prove the amount of the rent at the date of the purchase; keeping in view that the testator evidently intended that a considerable portion of the victual should be converted into money, and that the amount of the conversion was 100 merks for each chalder.It was also observed, that all that was provided by the settlement in the will was, that the heirs should enjoy an income of 50 chalders annually from the whole estate, without stipulating that the rent of no one farm should at any time suffer diminution. Therefore, supposing there should be a trifling loss on the rent of Tipperty and Newark, it was more than compensated by an increase on the Turner Hall estate.But supposing the rent payable by the Appellant Turner was to be compared with the rent paid for the lands immediately before the commencement of the lease, the present rent, in point of fact, considerably exceeded the former.It was no objection to say that the present tack was executed some time previous to the expiration

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Messrs. Leach and Horner (for Respondents.)

1st, It was clearly established that any substitute in the entail might insist in such an action as this. And the deed of entail could alone be looked to, because it remained unreduced.It was admitted that entails were strictissimi juris , and that no prohibition was to be extended by implication. But neither the principle of law, nor the decided cases on which they relied, would support the conclusion of the Respondents. The case of Leslie v. Orme depended on special circumstances.The grant in question was an alienation in substance on two grounds:—1st, It gave all that could be conveyed by a feu contract, which was unquestionably an alienation. 2d, Because there was no tangible difference between 1000 years and a perpetuity; and therefore the lease was void for want of a legal ish . The authorities that long location (leases exceeding the customary duration of leases at the time they were granted) was an alienation, were decisive in favour of the Respondents. (Craig, b. 3, dieg. 3, s. 24.—Dieg. 4, de jure protimeseos .—B. 2. dieg. 10, de locationibus sive assedationibus; where he must be allowed to have confined himself exclusively to the law of Scotland.) Lord Stair, also, in speaking of the cases inferring recognition by alienation, made use of these words:—

is understood, and also long location .”

“Subinfeudation, in all cases, is accounted alienation; and where alienation is prohibited, subinfeudation

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It was said that these last words were not in the edition revised by Stair before his death; but the alterations, except they were from manuscripts, were placed between crotchets, and the words in question were not between crotchets, and therefore ought to be considered as taken from a manuscript.Illustrations of the doctrine that long leases amounted to alienation were also to be found in the limitations anciently imposed on the Crown in the management of the royal demesnes; (Act of 1455, Cap. 41;) and also those which affected ecclesiastical beneficiaries in the management of church property. ( Bishop of Aberdeen v. Forbes , Dec. 14, 1501. Abbot of Crossraguel v. Hamilton , March 12, 1504.—Balfour's Practicks, p. 203.) Another illustration was to be found in the principles of the law of death-bed, by which tacks of extraordinary duration were reduced as being a species of alienation. ( Chrystisons v. Kerr , Dec. 1733. Diet. I. 215.— Bogle v. Bogle , June 19, 1759. Fac. Coll, 335.)It had been determined that a tack wanting a legal ish , or one which was equivalent to a grant in perpetuity, (as this was,) could not be sustained against singular successors. The principle was recognized in several cases. ( Alison v. Ritchie , Feb. 3, 1730.— King's Advocate v. Fraser , Dec. 6, 1758.— Irvine v. Knox , 1760.— Wight v. Hopetoun , Nov. 17, 1763.)If a lease of this kind were not prohibited under the word “annalzie” in the Act of Entails, 1685, cap. 22, it followed that the legislature meant that an

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2d, Tacks were not to be let
“in diminution of the true worth and rental that may be paid for the said tacks;”
the obvious import of which words were, that a rent equal to the true worth and value of the lands at the time when a lease was granted ought to be stipulated for. Whether the lease to George Turner was below the true worth and rental in 1763 was a matter of fact and calculation; and it was a matter of history, as well as in proof even upon the principles of conversion contended for by the Appellants, (though below the real rate of conversion of victual into money,) that the rent reserved by the contravening heir of entail was not equal to the true worth and rental of the lands at the time of the granting of the lease.July 12, 1813. Observations and Judgment.The lease was in diminution of the true worth and rental, and judgment of Court of Session affirmed on this ground, without reference to that of alienation.Lord Eldon (Chancellor.) The question in this case had been argued on two grounds:—1st, Whether a lease for a thousand years was supportable under the deed of entail, as containing a prohibition against alienation? and with reference to this point, it had been largely argued on the same ground as that which occurred in the Queensberry

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And it is further ordered, that the cause be remitted back to the Court of Session, to do thereupon as shall be just.”
“The Lords find, that the tack under reduction was a tack in diminution of the true worth and rental which might be paid for the same, and was in contravention of the express prohibition contained in the deed of entail; and therefore find, that it is not necessary to determine whether the said tack was liable to reduction on any other grounds. And it is ordered and adjudged, that the interlocutors of the 14th, signed 15th, May, 1806, and 17th November, 1807, be affirmed,

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Solicitors: Agent for Appellant, Mundell.Agent for Respondent, Berry.