Montgomery and Others, Trustees of the late Duke of Queensberry v. Charteris, Earl of Wemyss [1813] UKHL 2_Dow_90

UKHL

Montgomery and Others, Trustees of the late Duke of Queensberry v. Charteris, Earl of Wemyss

[1813] UKHL 2_Dow_90

Entail , with prohibition against alienation , properly fortified with irritant and resolutive clauses, followed by a permissive clause to let life-rent tacks without diminution of the rental. No specific prohibition against letting of leases, except as above. A lease granted by heir of entail, for 97 years, taking a grassum, or fine. Held that this lease fell under the prohibition against alienation .

1693. Entail of Nidpath.

In 1693, William, Duke of Queensberry, on occasion of the marriage of his second son, Lord William Douglas, executed a deed of entail of the

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Prohibitory clause.

“It is hereby expressly provided and declared, and to be provided and contained in the said resignation, charter, and seisin, and in all the sub-sequent rights to follow hereupon, of the said lands and estate in time coming, that it shall no ways be leisome and lawful to the said Lord William Douglas, and the heirs male of his body, nor to the other heirs of tailzie respective above mentioned, nor any of them, to sell, alienate, wadset, or dispone any of the said hail lands , lordships, baronies, offices, patronages, and others above rehearsed, as well those to be resigned in favour of the said Lord William in fee, as those reserved to be disponed by the said Duke of Queensberry in manner foresaid, or any part thereof; nor to grant infeftments of life-rent, nor annual rents, forth of the same; nor to contract debts, or do any other fact or deed whatever, whereby the said lands and estate, or any part thereof, may be adjudged, apprized, or otherwise evicted from them, or any of them; nor by any other manner of way whatsoever to alter or infringe the order and course of succession above mentioned: and in case the said Lord William Douglas, or any of the other heirs of tailzie above specified, shall contravene the same, all such facts and deeds shall in themselves be null and void ipso facto , without necessity of any declarator; and the person contravening,

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Lease or tack for 97 years by the late Duke of Queensberry, who takes 318 l . 1 s . 2 d . grassum.

The late Duke of Queensberry having succeeded to the estate under this entail, granted a lease of one of the farms (Wakefield) belonging to the entailed estate to Alexander Welsh, for a term of 57 years from Whitsunday, 1800, at a yearly rent of 86 l . 15 s . 2 d. taking a sum of 301 l . of grassum, or entry money. Welsh afterwards renounced that lease, and received a new one for 97 years, from 1 Whitsunday, 1802, at the same rent of 86 l . 15s. 2 d .; besides which, he bound himself to the performance of certain conditions and obligations, and also became bound to pay 318 l . 1 s . 2 d . by way of grassum.

Action of declarator to try the validity of the tack.

Summons.

To try the validity of this latter tack, the Duke brought an action of declarator in the Court of Session. The summons in this action concluded against the late Earl of Wemyss, the late Lord Elcho his eldest son, and the present Earl of Wemyss, (Respondent,) “ that being heirs substituted to the Duke of Queensberry by the deed of entail already mentioned, they ought to be called as parties; and being so called, that it should be found and declared that the Pursuer, the Duke, was nowise limited by the said deed of entail, norby the clauses, prohibitory, irritant, and Page: 94↓<page pagenum="94"/>resolutive, therein contained, from granting leases for the endurance of ninety-seven, nor from taking grassums for the same, the said leases being set without diminution of the rental: in particular, that the said lease, dated 23 d November , 1802, granted to Welsh, upon his renunciation of the former lease, should be valid and effectual, under the conditions and obligations therein mentioned, to the said Welsh, and to his heirs, assignees, and subtenants, for the full space of ninety-seven years from the commencement thereof.” granted to Welsh, upon his renunciation of the former lease, should be valid and effectual, under the conditions and obligations therein mentioned, to the said Welsh, and to his heirs, assignees, and subtenants, for the full space of ninety-seven years from the commencement thereof.”

Defences.

The Defenders having appeared to the said action, stated a defence, in general terms, that the said lease is contrary to, and in violation of, the provisions and prohibitions contained in the entail referred to in the summons.

Lord Glenlee (Ordinary) took the cause to report; and the Court, after hearing counsel, pronounced the following interlocutor:—

May 14,1806. Interlocutors sustaining the defences.

“The Lords haying resumed consideration of this cause, and advised the same, with the mutual informations for the parties, and having also formerly heard the counsel for the parties in their own presence, they sustain the defences, assoilzie the Defenders from the conclusions of the declarator, and decern.”

The Appellant gave in a reclaiming petition against the above interlocutor; and, upon advising the same with answers, the following interlocutor was pronounced:—

Dated 17, signed 18, Nov. 1807.

“The Lords having resumed consideration of the petition for the Duke of Queensberry, and advised

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The Duke of Queensberry appealed against these interlocutors, and after his death the appeal was revived by the Appellants, his trustees and executors.

There were two questions made:—1st, Whether the lease in question was prohibited by the prohibition against alienation ? and, 2d, Whether it was prohibited by the subsequent permissive clause? The former was considered as the principal question.

Argument for Apellants. That entails are “Strictissimi juris.” “Strictissimi juris.”

P. 3. t. 8. s. 9.

Romilly and Brougham (for Appellants.) From the effect of the irritant and resolutive clauses by which, in case of contravention, the prohibited act is not only rendered void, but the contravener also forfeits his estate, and likewise from the unfavourable light in which restraints on property were regarded, entails had received the strictest construction. This was stated by the most distinguished writers on Scottish law, and especially by Erskine, who thus summed up the doctrine of the law on that point:—

1812, Creditors of Riccarton ;) or , vice versâ, though there should be a clause irritating the right of the heir who contracts, but without declaring the debts contracted null , (11 th July, 1734, Bailly ;) the Court will not interpose to supply the defect from presumed intention. For the same reason, a prohibition to alter the succession, though under an irritancy, does not disable the heir from contracting debt, ( Falc. 1, 116;) nor does a prohibition to contract hinder him from selling, ( Falc. 2, 92.)”

“ An heir of entail has full power over the estate, except in so far as he is expressly fettered, ( New Col . 2, 13;) and as entails are an unfavourable restraint upon property, and a frequent snare to trading people, they are strictissimi juris, so that no prohibition or irritancies are to be inferred by implication. Hence, though all debts to be contracted by the heir should, by the entail, be declared null, but without irritating the right of the heir contracting , 22( d July ,

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That this strict construction had been applied in the Duntreath and other cases.

This rigidly strict construction was applied in the Duntreath case, Nov. 24, 1769, appeal April 15, 1771; in the case of Stewart v. Home , 1789, (Dict. vol. 4, p. 339;) in the Tillicoultry case, Jan. 1799, affirmed June, 1801, (Fac. Coll. No. 99;) and in the case of Leslie v. Orme , (6 Fac. Coll. 1779.)

That the word alienate in entails was to be confined to its technical sense, as applying to the feudal right of lands, and not to tacks.

The word alienate , in the prohibitory clause of an entail, was used, not in a vague, indefinite, and popular, but in a strictly technical sense, applicable only to the feudal right or property of the lands. In this latter sense it was always used in conveyances where the feudal right was meant to be carried, and in this sense it appeared to have been used in the act of entails, 1685, cap. 22. If the word were to be understood in its more extensive sense, it would include all the prohibitions usually inserted in entails, which would hardly be contended.

Dallas, 650.

The word alienate could not therefore apply to leases short or long, as the longest leases did not carry the feudal property of the lands. Leases

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That the authorities cited by the Respondent did not apply. Craig, lib. 3. dieg. 4. s. 5.— Lib. 2dieg. l0. s. 5.

Stair, b. 2. 1.11. s. 13.

The authorities relied upon by the Respondents did not bear out their conclusions. Craig stated the opinion of foreign feudists, rather than his own; and the law of Scotland, as it stood in his time, was of no great importance with respect to the present question, considering the changes it had undergone in regard to leases. The words most favourable to their views in Stair had been interpolated ( vide ante , case of Turnerhall, vol. i. pp. 430—434) after his death, and were not to be found in the edition (1693) revised by himself, in which he stated (b. 2. t. 11. s. 13.) that alienation was not extended to location by the common feudal customs. ( Vide also b. 1. t. 15. s. 1.—b. 2. t. 9. s. 2.)

Stair, b. 2. 1. 11. s. 13.

The illustrations drawn from the law in regard to the annexed property of the crown, and in regard to church property, as well as those from the style of inhibitions, law of death-bed, &c. were totally inapplicable, as these branches of law rested on their own peculiar principles, which were entirely different from those by which entails were governed.

Vol. i. p 423.

6 Fac. Coll. 1779. ( Vide post , Lord Redesdale's observations.)

This case differed from that of Turnerhall by the permission to grant life-rent leases, by the permissive clause following the prohibitory, and also as to the length of time for which the lease was granted, which was material. Though a lease for 1000 years (a period as long as empires had lasted)

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No inference against this lease could be drawn from the permissive clause:—1st, Because, in cases of entail, no prohibition could be implied; and, 2d, Though it had contained an express prohibition, it could have no effect, as it was not fortified by irritant and resolutive clauses.

Argument for Respondent. That leases for longer terms than were usually granted in the ordinary administration of the estate were alienations.

Distinction between long and short leases strongly marked in the law of Scotland.

Leach and Thomson (for Respondent.) Leases for longer terms than were usually granted in the ordinary administration and management of the estate at the time were considered as alienations, and struck at by the prohibition. A lease, or tack, it was admitted, was not in its own nature an alienation, but it became so when extended beyond the term commonly granted as an act of ordinary administration—a term necessarily varying according to the fluctuations in the notions as to the proper system of management. The distinction between leases of ordinary, and those of extraordinary duration, was strongly marked in the law of Scotland; the latter

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In illustration and support of these observations, the Respondents referred to the following cases, in which prohibitions against alienation were held to extend to long tacks:—

Illustrations of the doctrine that alienation extended to long leases.

From the annexed property of the crown. Act of 1455, cap. 41. 25 Geo. 2, cap. 41.

1st, The limitations imposed on the crown in the management of the royal demesnes, act of 1455, cap. 41, with Sir G. Mackenzie's observations on that act. In the Annexation Act, 25 Geo. 2, cap. 41, after the rebellion of 1745, alienation was prohibited, and this was held to extend to long tacks, which were therefore let only in virtue of a special power given to that effect.

From the case of church property.

2d, In the management of church property, life-rent assedation was considered as a species of alienation. Balfour's Practicks, p. 203.— Bishop of Aberdeen v. Forbes , Dec. 14, 1501.— Abbot of Crossraguel v. Hamilton , March 2, 1504.

From the feudal restraints on the vassal.

3d, Long location of their fees by the vassals was held to be alienation by the feudal law generally, and as adopted in the law of Scotland particularly. Craig, lib. 2. dieg. 10. s. 5. de locationibus. —Lib. 3. dieg. 3. s. 22—24. de recognitione. —Lib. 3. dieg. 4. s. 5. de jure protimeseos .—Stair, b. 2. t. 11. s. 13.

From the law of death-bed.

4th, Long leases on death-bed were struck at by the law of death-bed on the ground of their being alienations. Chrystisons v. Ker , December, 1733, Kames, 1 Dict. 215.— Bogle v. Bogle , June 19, 1759, Fac. Coll.

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5th, Under the alienations in fraud of creditors prohibited by the bankrupt laws, long leases were included. Act of 1621, cap. 18, with Sir G. Mackenzie's observations on that act.—Act of 1696, cap. 5.

From the bankrupt-law. From the writ of inhibition.

6th, Leases of extraordinary endurance were also struck at by the writ of inhibition , under the clause against alienation of the lands.

7th, A lease granted of burgh property, in virtue of a delegated commission, was set aside on account of extraordinary endurance, as being a species of alienation. Aberdeen case, 1491.

8th, In cases, of joint interests, and in all cases of restraint on property, alienation was held to extend to long tacks.

That the word alienate must have extended to tacks, as it was the only word in the act of 1685 that could give effect even to express prohibitions against letting tacks.

The construction put upon the Act of Tailzies, 1685, cap. 22, afforded another proof of the comprehensive meaning of the word alienate , or annailzie . The most direct express prohibitions against letting tacks derived their efficacy as against third parties from that act, and yet there was no word in the act to give this effect to such prohibitions, unless the word annailzie had been considered as extending to leases .

That the practice of lawyers contemporary with the act of 1685 confirmed this view of the subject.

This conclusion as to the meaning of the Entail Act, and the extensive import of the word alienation, was confirmed by the practice of contemporary lawyers and conveyancers, as appeared from the most considerable entails put on record prior to the year 1700; such as the entails of Lee, of Bargeny, of Newbyth, of Blackcastle, of the Dukedom of Hamilton, of Prestonhall, of Malleny, of Nidpath,

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That a lease, if it deprived the successor of fair enjoyment of the estate, was an alienation. Permissive clause.

It was also contended, that independent of the ground of extraordinary endurance, a lease at a large grassum and an elusory rent would be regarded as alienation, if it deprived the succeeding heir of the due enjoyment of the estate.

The permissive clause in this entail was also irresistible evidence that the previous prohibition against alienation was understood to have extended to long leases.

Decided cases.

The same conclusion was supported by the decided cases. In the case of Lord Kinnaird v. Hunter , Nov. 26, 1761, a lease for 25 years was challenged oh the ground of its being an alienation, and supported only because the entail had not been properly recorded. The leases in the cases of Ker (or Carre) v. Cairns , and Leslie v. Orme , were supported only on the specialties in these cases, and rather tended to confirm than impugn the general doctrine. ( Vide ante , case of Turnerhall , vol. i. pp. 423–429.).

Reply.

Leslie v. Orme , 6 Fac. Coll. 1799.

That since the decision in the case of Leslie v. Orme , the opinion of lawyers had always been, that leases for any period not exceeding 100 years were good.

Clerk (in reply.) There could he no question here about the right to take a grassum. The question rested almost entirely on the length of time. From 1685 down to the present time there had not been a single case of a lease reduced merely on the ground of its being an alienation, unless there was an express prohibition. A lease for 76 years ( Leslie v. Orme ) had been supported, and an additional

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Some entails without this word alienate .

There was no attempt to show that this lease was prevented by any thing except the word alienate . Strike out that word, and nothing remained. But then it so happened that some entails had not this magical word, and heirs of entail having, upon searching among their old parchments, discovered this circumstance, came for opinions whether they might not grant leases as they were not bound by the magical term. Being told that they might, leases were granted accordingly; and one of these cases was now before the Court of Session. To the astonishment of every body, it was then found that there was infinitely more magic in the word disposition than in the word alienation; and he would venture to say that the Court was now very considerably shaken on the general principle.

That the Court below was shaken on the general principle.

By the law of Scotland, all deeds of importance must be registered, a system which was generally

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Uncertainty as to what was a long tack. A thing so dubious not the proper subject of prohibition in an entail.

To apply these principles to this case, What was this prohibition? It was a prohibition to alienate, and a long tack was an alienation. Then what was a long tack? The prohibition must be precise and clear. What was a long tack? Craig said that one of 10 years was a long tack; then any thing beyond was an alienation. Others said 19 years. One Judge ( Islay Campbell ) fairly acknowledged he did not know what it was. Blair , in arguing these cases, had said that a tack for a longer period than one usually granted tacks in the ordinary administration of his affairs was a long tack. If the Judges had been asked separately, without any

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Words sell, annailzie, dispone , in act of 1685, referred, exclusively to feudal right, or property of lands.

The words sell, annailzie, disponse , in the act of 1685, cap. 22, referred exclusively to the property. Nothing was here meant or said as to the possession either by tacks or otherwise. In this entail, too, they related purely to the property; and it was necessary to attend to the distinction, as the property and possession were totally different things. In the act there was not a word about tacks, and it might be concluded that those who passed it applied it exclusively to the property.

Meaning of the words disposition and alienation .

Many alienations (in loose sense of the term) acknowledged to be competent to an heir of entail.

What was disposition? and what was alienation? Disposition was the conveyance of some real right, and in that sense it was opposed to assignation , which was a conveyance of some moveable right. A lease was transmitted, not by disposition, but by assignation. ( Lord Eldon . Don't you call that as signation alienation? ) Certainly. Alienation, in its popular sense, was more comprehensive. It applied not only to real, but to moveable property. In this sense it comprehended every right that could possibly be transmitted. Giving sixpence to a common beggar was an alienation. It extended to deteriorations. Cutting a tree was alienation. But an heir of entail might cut trees, and do all manner of

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That the resolutive clause in entails was useless, if the heir was confined to acts of ordinary administration.

But an heir of entail might do what an administrator could not do. He had greater powers than a

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No specific prohibition here against leases.

In this entail there was no specific prohibition against leases. The only word relied on was the word alienate . ( Lord Eldon . If the Duke had a younger son, could he give him a lease of this estate for 1000 years at a pepper-corn rent?) The permissive clause was not prohibitive, and a lease might be granted at any rent , except a lease for life. ( Lord Eldon . It was a curious distinction that a lease might be granted of the estate for 1000 years, and that the mansion house could not be let in the same way.) The act was obscure, and it had been extended by the Courts. They had thought it hard to deprive the heirs of the mansion house, and had raked up the “ Regiam Majestatem ,” a book written 500 years before the act of 1685, for reasons to enable them

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It was absurd to say that there must be in proper entails specific prohibitions against several acts of alienation, and yet to say that the general word was sufficient to prohibit the granting of long leases. It destroyed the principle of construction in regard to entails, and introduced a new and absurd construction under which it was hardly possible to avoid contravention. But then they said that the prohibitions of entails would be thus evaded; but who ever heard of bona fides in a case of entail? The heirs were evading them from generation to generation, and a single hole was sufficient to put an end to them. A great Judge ( Mansfield ) in the Court of King's Bench in this country had said, in a case where the maxim of “ strictissimi juris ” applied, that it was necessary to hit the bird in the eye.” So it was in the case of Scottish entails. ( Lord Eldon . There were cases where the Court of King's Bench held that the bird was hit in the eye, but in which the Court of Chancery thought it was hit in both eyes very hard.) There was no equity in cases of entail.

The authorities in which long tacks were stated to have been considered as alienations had no application to the condition of an heir of entail. Besides other considerations, the passages in Craig might apply only to tacks that were established by

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Dec. 10, 1813. Judicial observations. The case stated.

Entail of Nid path. Prohibitory clause.

Permissive clause.

Lord Redesdale . This case arose upon a marriage settlement entered into in 1693, on occasion of the marriage of Lord William Douglas and Lady Jane Hay, by which the lordship of Nidpath, and other parts of the estate of March, was resigned by the then Duke of Queensberry in favour of his son, (Lord W. Douglas,) and his heirs male by the said Lady Jane Hay. The settlement, or marriage contract, contained a proviso by which it was provided that “it should in nowise be leisome and lawful to the said Lord William, and the heirs male of his body, nor to the other heirs of tailzie, nor any of them, to sell, alienate, wadset, or dispone any of the said hail lands “it should in nowise be leisome and lawful to the said Lord William, and the heirs male of his body, nor to the other heirs of tailzie, nor any of them, to sell, alienate, wadset, or dispone any of the said hail lands ,” &c .; and after the irritant and resolutive clauses, the instrument contained the following permissive clause:—

or the life-time of the receiver thereof; the same being always set without evident diminution of the rental .”

“ It is always hereby expressly provided and declared, that, notwithstanding of the irritant and resolutive clauses above mentioned, it shall be lawful and competent to the heirs of tailzie above specifed, and their foresaids, after the decease of the said William Duke of Queensberry, to set tacks of the said lands and estate during their own life-time ,

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Lease for 97 years, and action of declarator by the late Duke of Queensberry.

The late Duke of Queensberry had become possessed of the estate under this entail, which, under the same entail, had devolved upon the present Respondent, the Earl of Wemyss. The Duke had thought fit to execute the leases in question in the cause, and the action had been brought by the Duke of Queensberry, in his life-time, in order to have the legality of these leases declared.

The lease was granted in 1802, upon the renunciation of another lease for 57 years, granted to a person of the name of Welsh, from Whitsunday, 1800; for which lease Welsh was to pay 86 l . 15 s . 2 d . yearly rent, besides paying a grassum of 301 l . as entry-money. The lease in question was granted on the 23d November, 1802, for 97 years, at the same rent, and a grassum of 318 l . 1 s . 2 d .

The question to be determined was, Whether this lease was within the powers of the heir of entail? and the whole depended on the effect of the prohibitory clause.

The question for their Lordships to determine was, Whether it was within the power of the heir of entail to grant this lease. This turned upon the general power of persons holding estates as heirs of entail, subject to the prohibition contained in the words, “ it shall in nowise be leisome and lawful, &c. to sell, alienate, wadset, or dispone ,” &c . It did not depend on the power given to the heirs of entail “ to set tacks of the said lands and estate during their own life-time, or the life-time of the receiver thereof ,” this not being a lease of that description. The whole depended on the general question, Whether the prohibitory words, “ not to

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Entails to be strictly construed.

Whether the prohibitory words extended to leases, or were confined to the fee of the property?

In construing entails under the act of 1685, cap 22, it had been determined as in the Duntreath case, that they were to be construed strictly; that the meaning was not to be extended by implication, but understood according to the strict words of the entail. That had now been so firmly settled that it would be very unwise to infringe upon the decisions establishing the doctrine; and therefore the question now was, Whether the words, “ it shall not be leisome, &c. to sell, alienate, wadset, or dispone ,” &c . had the effect contended for by the Respondent, or whether they merely prevented the entire alienation of the fee of the property?

Consequences of the construction that the prohibition against alienation was confined to the fee of the property.

If the construction contended for by the Appellant, viz., that the prohibition against alienation was confined merely to the alienation of the fee of the property, was the right one, then leases of every description must be excepted; and therefore a lease of the whole estate, even of the mansion house, might be granted at a pepper-corn rent, notwithstanding the prohibition in question; and this would have the effect of allowing the destruction of every entail where there were no words expressly prohibiting the granting of tacks or leases. If such had been the general idea at the time of passing the act of 1685, cap. 22, or subsequent to that period, in every case of entail without an express prohibition against leasing, (and there were but few such prohibitions in the ancient entails,) the entailed estates would have been covered with leases.

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If entails were injurious, it would be still more injurious to allow the entails to be made, and then to be evaded by long leases.

It had been said that these entails were injurious to Scotland, and ought not to be favoured. It might be so. But nothing could be so injurious as that estates might be so entailed and then let in leases. A great portion of a large estate, worth 3000 l . 4000 l . or 5000 l . a-year, might thus be let under lease, and then sub-let again and again; and a great part of the landed property of Scotland in this manner might be put in the same condition as that of Ireland, under leases for lives, renewable for ever; a practice which, to his knowledge, was most injurious to the agriculture and quiet of that country. These considerations, however, ought to have no weight in opposition to the law, because the law, whatever it was, must be enforced; but he mentioned this merely to intimate his opinion that entails themselves were not so bad as allowing this mode of evading them.

Admitted, that in other cases leases which deprived the successor of the enjoyment of the property were alienations. Crown and church property, &c.

The question then came to be, What sense the Courts had put upon the words “sell, alienate , dispone.” In, all other cases except entails, it appeared to be admitted that the word alienation extended to leases which deprived the heir or successor of the enjoyment of the property; as in the case of the annexed property of the crown, leases to the injury of the successor were considered as alienation; and so with respect to ecclesiastical tenures, and in other instances, some of them not perhaps so exactly analogous to the present case.

Principle upon which leases of mansion houses are prohibited.

But there was one instance in which no leases could be given to bind the heir, which threw considerable light on the question; he alluded to leases of the mansion house. It appeared to have been

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Framers of entails must have conceived that alienation extended to long leases.

On looking at deeds of entail, with prohibitions against alienation, and subsequent permissions to lease, it would appear evident that those who framed them clearly understood that leases were included under the previous prohibitory words, as the subsequent permissions gave a power which must have been supposed not to have existed before. It appeared to him clear, therefore, that a general impression had prevailed among the framers of these deeds of tailzie, that the prohibition against alienation extended in some degree to leases. This was naturally to be expected in a law derived in a great measure from the feudal system, where long leases granted by the vassal were held to be a species of alienation.

Decided cases.

Leslie v. Orme , 6 Fac. Coll. 1779. This case itself, and opinions founded on it, proved that alienation was understood to have extended to leases.

Then see how the question stood upon the decided cases. He had been able to find no decision that a lease of this description could be supported in the face of such a restriction against alienation, without something special in its circumstances. It was stated, that after the decision in the case of Leslie v. Orme , it had been conceived in Scotland that the effect of that case had been to determine that heirs

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Case of Leslie v. Orme particularly examined. Entail of Balquhain.

In the case of Leslie v. Orme , it appeared that Patrick Count Leslie, by his original tailzie of the 8th November, 1692, “prohibited, conditioned, and declared, that it should in nowise be leisome and lawful, nor in the power of his heirs of tailzie “prohibited, conditioned, and declared, that it should in nowise be leisome and lawful, nor in the power of his heirs of tailzie , to sell, annailzie, or dispone the lands and others above-written, or any part thereof, hereby provided to them in manner foresaid, heritably and irredeemably, or under reversion, one or more; nor to grant infeftments of annual rent, or yearly duties forth thereof; nor to set tacks of the same, in diminution of the true worth and rental they paid before the said tacks; nor to contract debts, nor do any other deeds whereby the samen may be evicted, appraised, or adjudged from them .”

Express permission to grant tacks without limitation as to time or rent.

By a subsequent deed, taking notice of the original tailzie, especially of the declaration that it should not be lawful for his heirs of entail to set

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The effect of this was to leave the case as if the prohibition against letting tacks in diminution of the rental had been wholly out of it. Taking both deeds together, there was first a prohibition against alienation, and then a power to grant leases of any description.

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Leslie Grant supplied with funds by Orme, his agent, to recover the estate.

Lease, April 5, 1765.

Afterwards discharged by the parties, March 29, 1769.

March 29, 1769.

August, 1769.

Sept. 7, 1773.

Reversionary lease, Sept. 11, 1773.

Under this entail, a person of the name of Grant came into possession, after a suit to recover the estate, in the progress of which he became very considerably indebted to Orme, his agent, who had assisted him with money to carry on the suit, and also advanced sums for his maintenance and education. To secure the repayment of these sums, he executed to Orme a lease for 19 years of the whole of the estate, (Balquhain,) for which Orme was to pay a yearly rent of 300 l . and to apply what might be received over and above from the sub-tenants towards the extinction of the debt. This was afterwards discharged by the parties. A subsequent deed was executed, by which the whole estate was in effect demised to Orme, for four times 19 years, for a considerable rent and fine. Afterwards, by a farther transaction between these parties, in order to provide for the engagements with Orme, Leslie Grant likewise executed in favour of Orme a trust disposition of the whole tack duty, during. the lease, except 300 l . payable annually to himself; and in case any of the heirs should refuse to ratify the deed, the tack duty was restricted to the same sum till such time as the whole debts should be paid. Leslie afterwards executed new deeds in Orme's favour. By one of these (August, 1769) a privilege reserved in the former lease to him, his heirs, and of assuming possession of the mansion house and mains, was limited to him and his heirs. By another deed, (September 7, 1773,) Leslie further restricted this privilege to the heirs male of his body. Afterwards, on payment by Orme of a small sum by way of grassum, the whole estate was let to him

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On the death of this Leslie Grant, however, without issue, the next heir of entail raised a process of reduction of the deeds, but which appeared to have been abandoned by him. But after his death, his son endeavoured to set aside the deeds:—1st, On the ground of fraud. 2d, On the ground of their being ultra vires of Leslie, who held the estate under a strict entail. As to the ground of fraud, that was out of the question, as the deeds had been acquiesced in and confirmed by the subsequent heir of entail. As to the first term, (1765,) that was out of the question, having been given up by the parties.

The Lord Ordinary ( Covington ) pronounced an interlocutor in this case, finding,—

Tack of four times 19 years.

“ That as, by the two deeds of entail above mentioned, the heirs of entail were put under no restriction as to the number of years for which leases might be granted, they were at liberty to grant leases for any term of years they thought proper; and therefore sustains the defences, and assoilzies the Defender from the reduction of this tack, in so far as challenged on account of its being granted for such an unusual term of years,” &c. That as, by the two deeds of entail above mentioned, the heirs of entail were put under no restriction as to the number of years for which leases might be granted, they were at liberty to grant leases for any term of years they thought proper; and therefore sustains the defences, and assoilzies the Defender from the reduction of this tack, in so far as challenged on account of its being granted for such an unusual term of years,” &c. .

The cause afterwards came before the whole Court, and the Court pronounced the following interlocutor:—

Interlocutor in the case of Leslie v. Orme .

“ Find that insisting in the tack of 5th April, Page: 117↓<page pagenum="117"/>1765, was inept and incompetent, and assoilzie the Defender from that conclusion in the Pursuer's summons. Repel the reasons of reduction of the tack granted by Peter Leslie Grant to the said David Orme, dated 29th March , 1769. Repel the reasons of reduction to the obligation and assignation granted, dated 29th March, 1779, in so far as respects the restriction of the tack duty and assignment of the surplus over and above the 300 l. during the life-time of the said P. L. Grant, and the Pursuer's father; but sustain the reasons of reduction as to all subsequent years. Repel the reasons of reduction of the ratification by the Pursuer's father, in so far as regards the tack itself and the restriction of the tack duty, and assignment of the surplus thereof for the purposes therein mentioned during the life-time of the Pursuer's father, after his succession to the estate of Balquhain; but sustain the reasons of reduction qoad ultra. Sustain the reasons of reduction of the deed of restriction granted by the said P. L. Grant to the said D. Orme, dated 5th August , 1769; and of the tack and deed of restriction granted by said P. L. Grant to the said D. Orme, dated 7th September , 1773; and also of the tack granted by the said P. L. Grant to the said D. Orme, dated 11th September, 1773 .”

Their Lordships would observe, that the effect of this interlocutor was to agree with the Lord Ordinary as to the power of granting leases, but to hold, that, notwithstanding this, the mansion house was

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Case of Leslie v. Orme does not support the construction contended for by the Appellants.

The case of the mansion house in Leslie v. Orme considered as a fraudulent execution of the power.

If this, then, was an authority, it by no means supported the proposition contended for by the Appellants, that, without a power expressly given, leases not exceeding 100 years might be supported under such an entail as this. There a power was expressly given to set tacks without any restriction as to the rents to be reserved, or the duration of the term; and, notwithstanding this, the Court held that the tack was not good as to the mansion house, that being considered as a fraud, in as far as it was contrary to the intention of the creator of the entail: for the ground of decision must have been, that this was contrary to the intention of the entailer, as it was considered by the Court below, and by this House, as a fraudulent execution of the power, as the creator of the entail must have intended that each heir of entail in succession should have the mansion house to live in, if he chose, during the period of his enjoyment. The case of Leslie v. Orme was therefore no authority, except in a case of entail with a similar power to that contained in that deed of entail; viz.—“ It shall be leisome and lawful to any of my said heirs of tailzie to grant tacks and assedations in any part of the lands contained in the said tailzie, and that under the present rental, if they shall think fit and expedient ,

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Case of Leslie v. Orme very much misunderstood in Scotland, if considered as an authority to the extent stated by the Appellants.

The effect of all this was, that the deed of entail in the case of Leslie v. Orme was one with words prohibiting the heirs of entail “to sell, annailzie, and dispone,” but with the express power of leasing without bounds. It was clear then that it was no authority for this proposition, that a prohibition against alienation did not restrain leasing for any number of years. This case had been very much misunderstood in Scotland. It was impossible it could have any such effect. It was a case by itself, and could only apply to leases within a power so given.

This being the construction of the case of Leslie v. Orme , it formed no authority for contending that such a lease as this, for 97 years, with a grassum, or fine, was not restrained by the general words. This would be to give these general words of restriction a sense which they did not bear in other cases; such as those of the annexed lands of the crown, ecclesiastical lands, and lands which had been held by a vassal, where it appeared to have been clearly understood, that leases which went to deprive the successor or superior of the benefit of the property could not be sustained against such superior or successor.

As to the extent of the leases, the use or abuse of the power was the criterion.

10 Geo. 3, cap. 5l, enabled heirs of entail to grant leases for 31 years, but without grassum.

Then it had been said, that it must be doubtful upon this construction, where there was a prohibition against alienation and no power to grant leases, as to what was to be the extent of the leases that

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In the present case, a grassum was taken—a sum to be put in the pocket of the heir of entail in possession, by anticipation of part of the rent; for it was neither more nor less than rent. A long lease by that means for a grassum was in effect the very thing which, in the case of Leslie v. Orme , could not be done. So, as to the mansion house, the power of taking possession of the mansion house was by the subsequent lease curtailed; and that was considered as a fraudulent execution of the power, as taking a benefit which was inconsistent with the proper enjoyment of the property by the future heirs of entail.

If a power of leasing was incident to entailed estates, that power must still be exercised in a manner consistent with the proper enjoyment by the several heirs.

If the power of leasing was incident to estates

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The power of making long leases not legally incident to entailed estates, without words expressly authorising them.

Lawyers in Scotland must have been of opinion that the prohibition against alienation extended to long leases, otherwise there could now have been no doubt on the subject.

Upon the whole, this lease could not be supported. It was not a lease necessary for the enjoyment of the property; and the power to make such leases was not legally incident to entailed estates, without express words authorising them. It was a sale pro tanto . The general word must extend to this kind of leasing. The prohibition against alienation , in other cases, restrained such leasing, and so it must do here. The impression on his mind, therefore, was, that they ought to affirm the almost unanimous decision of the Court of Session. Lawyers in Scotland, from 1685 down to the time of the decision in Leslie v. Orme , and even from that time till 1802, when the present lease was granted, a space of more than 100 years, must have been of opinion that such leases were not allowed, otherwise

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Roxburghe feu case, post .

Lord Eldon (Chancellor.) He did not understand it to be the intention of his noble friend to propose that the House should immediately proceed to judgment. If the duty which he had to discharge had been confined merely to the giving the result of his opinion, he could without delay discharge it. But their Lordships would remember that the question had been frequently discussed in the Court of Session, and that they had the benefit of the opinions of the bench on this subject, ( vide Roxburghe cause, post ,) of such infinite importance to the landed property of Scotland. It would be recollected that this question had come indirectly to be agitated in the Roxburghe feu cause, where much had been said about perpetual leases, and one lease of an entire estate. In the course of the argument on that question, much had also been said as to the effect of prohibitory clauses in entails.

The 4 times l9 years lease, in the case of Leslie v. Orme , considered as, under the special circumstances, consistent with a power of fair administration, and that was a ground of the judgment in that case.

The manner in which the noble Lord stated the case of Leslie v. Orme accounted well for that case, but it did not account for the arguments; for it had been argued, that when a power was given to grant leases, it was in the sense of a prudent administration

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The 4 times l9 years' lease, in the case of Leslie v. Orme , considered as, under the special circumstances, consistent with a power of fair administration, and that was a ground of the judgment in that case.

He threw out these observations now merely to show that there were several particulars to which they must have regard. As far as respected this lease, he was ready to discuss the question so as to go to judgment now; but it must occur, that in observing on the feu case, the discussion must go to leases as well as to feus, and that the feu question must be considered on all the grounds that occurred in this Queensberry case; and he should be sorry to obtrude on their Lordships' attention twice. Having, then, to go at large into the question of leases on the feu case, and the time not being distant when he proposed to do so, he thought it might be proper to defer the farther consideration

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Judgment.

Judgment of the Court below affirmed .

Solicitors: Agent for the Appellant, Chalmer .

Agent for the Respondents, Spottiswoode .