Sir James Montgomerie and Others, Executors of William Duke of Queensberry - Irvin - Cranstoun v. Duke of Buccleuch and Queensberry and his Tutors - Giffor - Mackenzie [1821] UKHL 1_Shaw_59

UKHL
Sir James Montgomerie and Others, Executors of William Duke of Queensberry - Irvin - Cranstoun v. Duke of Buccleuch and Queensberry and his Tutors - Giffor - Mackenzie
[1821] UKHL 1_Shaw_59
Lords Craigie and Cringletie .

Subject_ Lease — Purgation — Entail. —

Held (affirming the judgment of the Court of Session,) that purgation was inadmissible where, after the death of an heir of entail, it had been found and declared, that certain leases granted by him were beyond his powers, fell under the irritancy of the deed of entail, and so null and void.In 1705, James Duke of Queensberry executed an entail of the estate of Queensberry, whereby, inter alia, he prohibited the heirs substitute “to sell, wadset, or dispone any of the foresaid earldom, lands, baronies, offices, jurisdictions, patronage, and others foresaid, nor any part of the same, nor to grant infeftments of liferent or annual rent out of the same, nor to contract debts, nor do any other fact or deed whereby the same or any part thereof may be adjudged, apprised, or any ways evicted from them, or any of them, except so far as they are empowered in manner after mentioned.” There was also a special prohibition against granting leases in these terms:
“And that the said Charles Douglas, nor the other heirs of tailzie above specified, shall not set tacks nor rentals of the said lands for any longer space than the setter's lifetime, or nineteen years, and that without diminution of the rental, at the least at the just avail for the time.”
These prohibitions were fortified by irritant and resolutive clauses. By the irritant clause it was declared, that “all such facts, deeds, and debts committed, done, or contracted contrary hereto, with all that may follow thereon, shall be in themselves void, null, and of no force, strength, and effect, such like as if the same had never been done, contracted, nor committed, in so far as concerns the said earldom, lands, baronies, and others above rehearsed, which, nor no part thereof, shall be any ways affected or burdened therewith, in prejudice of the said heirs of tailzie and provision above specified, appointed to succeed by virtue of these presents, which are made and granted sub modo, and with and under the provisions above specified, and no otherwise.”In virtue of this entail, William Duke of Queensberry succeeded to the estate in 1778. He had adopted the practice of letting the lands for payment of a rent, with a grassum; and, prior to 1794, he had usually allowed the leases to expire, and then renewed them at the former rents, and for such additional grassum as could be obtained. In 1796, he formed a plan, by

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Footnote

* See Fac. Coll. Vol. 1815–1819, No. 44.

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After having complied with this order, the Court, on the 5th of February 1818, adhered to their former interlocutor, and decerned and declared in terms of the original libel. * Against this interlocutor the Duke of Buccleuch entered an appeal, but having died during its dependence, it was followed forth by the tutors of his son; and the House of Lords, on the 12th of July 1819, “Ordered and adjudged that the said interlocutor complained of

Footnote

* See Fac. Coll. Vol. 1815–1819, No. 151.

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When this judgment came to be applied, the executors contended, first, That although it was thereby fixed that the late Duke had not power to let tacks partly for a sum or price payable to himself, yet it was not found that he had by the tacks in question contravened a prohibition, and incurred a forfeiture; and, secondly, Supposing the judgment to mean that a contravention had been incurred, it was competent to them and to the tenants to purge the irritancy, by converting the grassum in each lease into an annuity for the period of the lease, or for the period to which it was prorogated, and to pay this as an additional rent from the time of the late Duke of Queensberry's death, with interest from the respective terms at which it became due, and in future till the expiration of the lease. The Court having, on the 29th of February, and 6th July 1820, assoilzied the Duke of Buccleuch from the declarator, * the Executors entered an appeal, on the ground chiefly, that supposing an irritancy had been incurred, yet it was still competent to them to purge it in the mode above proposed; and that this could not be barred by the death of the contravenor. In support of this they contended, that no third party can lose his right in any case by virtue of an entail, except by the direct operation of a resolutive clause forfeiting the right of the heir of entail, granter of the right; that, therefore, in cases where the heir of entail contravener is dead, and where,

Footnote

* See Far. Coll. No. 49. from which it appears that the Coart unanimously held, 1. That the leases fell under the irritancy of the entail; and, 2. That purgation was both inadmissible and impracticable.

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Counsel: Appellants' Authorities. —1503, c. 91; Queen's College, May 25.1542, (7934); 1. Craig, 13. 18; Mack. Ob. 1567, c. 10; 2. Stair, 8. 19; Price, July 6. 1660, (not rep.); 3. Ersk. 8. 29.Solicitors: J. Chalmer,— Spottiswoode and Robertson,—Solicitors.

( Ap. Ca. No. 37.)