Sir William Francis Eliott, of Stobs, baronet v. George Pott, Tacksman of the Farms of Langside and Penchrise [1821] UKHL 3_Bligh_134

UKHL
Sir William Francis Eliott, of Stobs, baronet v. George Pott, Tacksman of the Farms of Langside and Penchrise
[1821] UKHL 3_Bligh_134
REPORTS OF CASES HEARD IN THE HOUSE OF LORDS UPON APPEALS AND WRITS OF ERROR, And decided during the Session 1821, 2 Geo . IV.SCOTLAND.COURT OF SESSION.

No. 8

Sir William Francis Eliott , of Stobs, baronet Appellant v. George Pott , Tacksman of the Farms of Langside and Penchrise Respondent1821 .and rendered the prohibition effectual, and the act of contravention void, in a question between third parties as lessees, purchasers, or creditors.A deed, in the form of a bond of tailzie, declared in the prohibitory clause that it should not be lawful for the entailer, nor any of his heirs or successors, to sell; and he and they were thereby bound and obliged not to “sell, analzie, wadset, dispone , dilapidate, and put away the lands,” &c. The irritant clause is thus expressed:
“and if I, or any of the heirs, whether male or female successive, shall contraveen, &c. by the said heirs female, not using the surname, &c. or who, whether male or female, and I shall dispone the said lands, &c.; and if I, or any of the persons or heirs foresaid, whether male or female, shall infringe or alter the succession and substitution foresaid, all such deeds, &c. shall be void, &c.”
One of the heirs of tailzie in possession granted a lease for 77 years, at a reduced rent, &c. upon a grassum: Held, that the irritant clause, though confused and ungrammatical, was intelligible; and having received a construction in judgment upon a former litigation, could not be held to be unintelligible. Held also, that the lease was an alienation within the meaning of the prohibitory clause, and that the word “dispone” “dispone” in the irritant clause was equivalent to the word “alienate,” “alienate,”

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By a deed in the form of a bond of tailzie, and executed in the year 1719, by Sir Gilbert Eliott, it is “declared that it shall not be leisome nor lawful to me the said Sir Gilbert Eliott, nor to any of my heirs and successors foresaid to sell, and I hereby bind and oblige me and them not to sell, analzie, wadset, dispone, dilapidate, and put away the said lands, baronies and estate, or any part or portion thereof, heritably and irredeemably, or under reversion, (except in so far as the faculties above written do extend), nor contract or ontake debts thereupon, or grant bonds or other securities therefor, nor do or commit any other facts, deeds or delicts, civil or criminal, whereby the said lands and estate may be anyways apprized, adjudged, forfaulted, evicted or affected, nor to infringe, alter or innovate this present substitution and course of succession, in defraud and prejudice of the subsequent heirs of provision above mentioned, conform to the order and substitution above specified; neither shall it be lawful to me, nor to any of my heirs of provision foresaid, whether male or female, to suffer the said lands, baronies and estate, or any part thereof, to be adjudged or apprized for debts to be contracted, but shall be obliged to redeem the same within the space of eight years after deducing and leading any such diligence: And if I, or any of the said

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Under this entail Sir William Eliott, father of the Appellant, entered into possession of the estate. In the year 1790 Sir William granted to Gideon Pott, father of the Respondent, a lease for nineteen years of the farms of Penchrise and Langside, part of the entailed estate, consisting of between 4,000 and 5,000 acres, at the rent of 281 l . 8 s . After possessing the farms four years upon this lease, a new transaction was entered into between the parties. On the 20th March 1794, Sir William granted a new lease of the same farms to Mr. Pott, at the rent of 285 l . for 77 years, on payment of a grassum, which amounted to 2,904 l . 15 s . 9 d .; and of the same date with the tack, Sir William Eliott granted a back-bond to the tenant, restricting the rent exigible during his life to 200 l . Sir William

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The action having come before Lord Gillies, Ordinary, the Respondent by his defence maintained, in the first place, that the irritant and resolutive clauses of the entail were so inaccurately and so incomprehensibly worded, as to render the entail unavailable against third parties contracting with the heirs in possession of the estate; and secondly, that even supposing the irritant and resolutive clauses to be effectual to the extent of the acts of contravention there enumerated, they could not invalidate the lease under discussion, because that enumeration, while it mentioned the act of disponing, omitted that of alienating, under which alone, in the absence of any express limitation of the power of leasing, the lease could be struck at, as contrary to the restrictions of an entail.On hearing parties the Lord Ordinary, by interlocutor, dated the 27th January 1813, “repelled the reasons of reduction, and assoilzied the defender from the conclusions of the action.”A short representation having been given in by the Appellant, and refused without answers, a second representation was given in, upon considering which, with answers, the following interlocutor was pronounced:—as an alienation; and finds that alienations are prohibited by the entail of the estate of Stobs. But finds that the irritant and resolutive clauses in the same deed of entail contain no reference to the specific prohibition against alienating, such as is necessary to render the same effectual against third parties; therefore refuses the desire of the representation, and adheres,” &c.
“The Lord Ordinary having considered this representation, with the answers thereto, finds, that the lease in question having been granted in consideration of a grassum, and for a period of seventy-seven years, is to be considered

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The Appellant having submitted this judgment to the review of the Court, “they adhered to the interlocutor of the Lord Ordinary, but found the petitioner not liable in the expenses of process.”In pronouncing this interlocutor, the Court being influenced, as it appeared to the Appellant, chiefly by an opinion that the entail was unavailable against third parties, in consequence of the inaccuracy and obscurity of the irritant and resolutive clauses, the Appellant presented a petition, in which his argument was principally directed to establish the general efficacy of the entail. But the Court, having heard this petition, adhered to their former interlocutor.The Appellant, by his appeal to the House of Lords, complained of the interlocutors of the Lord Ordinary of the 27th January and 19th February 1813, the interlocutor of the Lord Ordinary of 17th December 1813, in as far as the same finds that the irritant and resolutive clauses in the deed of entail contain no reference to the specific prohibition against alienating such as is necessary to render the same effectual against third parties; and the interlocutors of the first division of the Lords of the 17th February and 10th March 1814, adhering to the interlocutors of the Lord Ordinary complained

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Counsel: For the Appellant, Mr. Brougham. For the Respondent, The Attorney General * .

Footnote

* This was the second argument. On the first point, the question as to the grammatical construction, no authorities were cited, except that it was urged by Mr. Brougham, that in the Roxburgh and Tillicoultry cases there were the same errors of grammar; but it was argued on general grounds, and the structure of the clauses, on the one hand, that they were unintelligible, on the other, that they were intelligible, though ungrammatical and perplexed, and that they had already received a construction judicially in Elliott v. Elliott , May 1803. On the other questions, whether by the word “ dispone ” alienation was prohibited, and whether a lease of 77 years with a grassum was an alienation, the argument was in substance and effect the same as on the similar points in the Queensberry leases, ante , vol. 1, p. 339. See the Lord Chancellor's speech in moving judgment.For the Appellant the following authorities were cited:— Fac. Coll. 19 May 1803, Elliott v. Elliott : Spottiswoode's Practics, voce Revocation, p. 306. Voce Improbat. Id. p. 168. Stair, b. 3, t. 2, s. 1, 3, and Introductory Remarks; Stat. 1571, c. 36. 39; 1581, c. 101; 1587, c. 111; 1593, c. 180; 1594, c. 211; 1597, c. 233, 234. 241. 256. M'Kenzie, vol. 2, p. 487. Kilkerran's Decis. p. 541. Turner v. Turner , 17 Nov. 1807, and 6 Dec. 1811; Malcolm v. Henderson , 17 Nov. 1807; Duke of Queensberry, 17 Nov. 1807; Welch v. D. of Queensberry , 12 Nov. 1812; Balfour's Prac. 171;

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The Lord Chancellor , after having stated the facts and pleadings, and the points at issue in the cause, proceeded as follows:—It is unnecessary for me to state, that in order to make the prohibition effectual against third parties there must be not only a clause prohibiting the thing to be done, but a clause rendering it null and void, and a clause

Footnote

Hope's Major Prac. MS. Reg. Maj. b. 2, c. 20 & 23; Ersk. b. 3, tit. 5, s. 1; Craig. Lib. 3, Dieg. 4, s. 5, p. 479, and the dict , of Bailey and Jamieson. As to the form of the entail, Jurid. styles, vol. 1, p. 202.For the Respondent the following authorities were cited;— Case of Viscount Stormont , Feb. 26, 1662, Stair's Decis.; Mackenzie on Tailzies, v. 2, p. 487; Stair, b. 2, c. 3, s. 56; Erskine, b. 3, c. 8, s. 25; Young v. Bothwells , Dec. 7, 1705, Forbes; Redhaugh v. Bruce , 11 Mar. 1707, Forbes; Cray of Riccarton, 13 June 1712; Baillie v. Carmichael , 11 July 1734; Primrose, 27 Jan. 1744; Kilk. p. 540; Hay v. His Maj. Advocate , 9 Feb. 1758; Creditors of Hepburn, Feb. 1758, affirmed on appeal; Bryson v. Chapman , 22 Jan. 1760; Bruce v. Bruce , 15 Jan. 1799, affirmed on appeal; Craig, p. 340, s. 12; Hope's, Minor Prac. p. 406, tit. 16, s. 11; Stair, b. 2, tit. 3, s. 38; Mackenzie, b. 3, tit. 8, s. 17; Bankton, vol. 1, p. 587, s. 149; Ersk. b. 3, tit. 8, s. 29; Ross, 4 Nov. 1743; Lesslie of Findrassie, 24 July 1752; Balfour of Randieston, 14 Feb. 1758; Case of Duntreath , D. P. 15 April 1771; Hepburn v. Lord Hopetown , 15 Feb. 1732, affirmed on appeal; Campbell v. Wightman , 17 June 1749, Falc.; Sinclair v. Sinclair , 9 Nov. 1749, Falc.; Weir v. Drummond , 28 Nov. 1752; Scott Nisbet v. Young , Nov. 1763; Case of Tillicoultry , Nov. 1763; Kemp v. Watt , 15 Jan. 1779; Stewart v. Horne , 8 July 1789; Brown v. Countess of Dalhousie , 25 May 1808; Craig. L. 2; Dieg. 3, p. 201, s. 27; Bankton, b. 2, tit. 9; b. 3, tit. 2, s. 1, 2, 5 & 6; Ersk. Inst. b. 2, tit. 7, s. 2; Ersk. smaller work, p. 323, tit. 5; Jurid. Styles, vol. 1, p. 502, 503, 504; Russell's Conveyancing, Index, Dallas's Styles, Supplement to Spottiswoode, p. 38; Mack. Inst. b. 3, tit. 5, s. 1.

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Two appeals have been presented, one of them against that part of the interlocutor which represented the lease in question as an alienation having been granted in consideration of a grassum, and for a period of seventy-seven years; of that appeal it appeals now unnecessary to take much notice, because, by many late decisions, such a lease has been considered in this House an alienation; and therefore, if the prohibitory, irritant, and resolutive clauses are sufficient to prohibit alienation, they must now, under the effect of those decisions, be taken to prohibit such a lease as an alienation. With respect to the other appeal, the substance of it is, that the Court ought not to have held the bond of tailzie to be unintelligible; or if they held it to be intelligible, but that the act which is to be taken as the alienation was not struck at by all the irritant and resolutive clauses, that they erred in so considering it, because the word disponing being in the other clauses, while the word alienate is in the prohibitory clause, that the word disponing is in law a word which includes in it all that would be expressed by alienating ; that it is not to be understood as technically meaning merely disposition, but that it will include alienation; and therefore, if a lease for seventy-seven years, with a grassum, is an alienation, such an alienation is struck at by the word

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This case has been twice decided by the Court of Session. In the year 1803 there was a cause in the Court of Session, Sir William Eliott against the heirs of entail of Stobbs; it was a question inter hœredes inter hœredes , and not a question between strangers, but that does not make any difference as to the point, whether the deed of tailzie is intelligible; it may make a difference as to the other question in this appeal. The case, after stating the deed of entail of the 17th of September 1718, which is the deed of restriction now under consideration, stated that Sir Gilbert made up new titles to his estate, on the footing of his entail, in 1719 and 1720, upon which he and his eldest son were infeft. The entail was recorded in 1724, and Sir Gilbert possessed the lands upon these titles till his death in 1764. He was then succeeded by his eldest son Sir John, who possessed the estate upon the titles made up in his father's lifetime, and died in 1767, being succeeded by his eldest son Sir Francis, who also made up titles in terms of the entail; and, upon his death in 1791, Sir William succeeded, and made up his titles under the entail as his predecessors had done, on which titles he has ever since possessed the estate. In the year 1801 Sir William entered into a minute of sale with Mr. Joseph Gillon, writer in Edinburgh, of a part of the estate. Mr. Gillon suspended the payment of the price, on this ground, that Sir William had no power to implement the minute of sale on his part, being restricted from selling by the

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Footnote

* 1 Brown's C. C. 74.

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In the result of this action of declarator, Sir William maintained this separate plea, “that the entail was ineffectual to prevent a sale, being defective in its various clauses, in support of which he maintained that the limitations of an entail are not to be extended by inference or implication beyond what is expressed in the entail itself (a proposition to which full assent will be given); and wherever these limitations are directed against third parties, as in the case of a prohibition to sell or contract debt, in order to render these effectual against purchasers or creditors, it is necessary that the prohibitory and irritant clauses should be accompanied by a resolutive clause making void the right of the contravener.” Then cases are mentioned. “The irritant and resolutive clauses, besides, must be precisely applicable to the act of contravention, in order to be effectual against third parties,” and Bruce of Tillycoultry's case is cited.

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In this case it is said “the irritant and resolutive clauses, instead of bearing in general that all the acts of contravention contained in the prohibitory clause shall be void and null, or shall subject the heir to a forfeiture, specially enumerate the various cases to which they are meant to apply.” That would be more accurately put if it was stated that after the declaration, that they are not to contravene in any respect the provisions contained in the instrument, it enumerates various cases to which such contravention would extend. They say further, “That in order to render void an act of contravention it must be done by Sir Gilbert and the heirs,—it must be done by the heirs during their respective marriages,—and it must be such as to burden or affect the estate, and infringe or alter the succession. But to enter into a minute of sale does not fall under any of the cases enumerated as qualified and explained by the irritant clause, in which cases alone contravention of the entail can be effectual against third parties. The prohibition to sell, analzie, wadset, dispone, dilapidate, and put away the said lands, is most ample; but in the irritant and resolutive clauses there is not one word about selling, nor any thing which in sound legal construction can be held to be equivalent to it.” (Whether there is any thing which can be held to be equivalent to it is precisely the question.) “The only words having the least reference to this prohibition are those in the irritant and resolutive clauses, ‘or who , whether male or female, and I shall dispone the said lands and estate, or any part thereof.’ Now, the relative who refers to the nearest antecedent clause, heirsfemale,

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On the other hand, the answer appears to me to contain the substance of all that has been stated at the bar on the other side. The act of 1685, permitting proprietors to entail their property, has prescribed no form of words which shall be essential for carrying the entailer's intention into effect, nor have the decisions of the Court as yet supplied the deficiency. It is only necessary that the clauses should be clearly and distinctly expressed, so that the meaning of the entailer may be carried into effect, without resorting to any constrained or violent construction of the words.In Bruce v. Bruce * , the entail of Tillycoultry,

Footnote

* 15. Jan. 1799. Dict. 15539.

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Mr. Solicitor-General Blair and Mr. Ross were concerned as counsel in this cause; and the Court of Session were of opinion, which they expressed on the 19th of May 1803, both that this clause was intelligible, and that the word dispone in the irritant and resolutive clause was quite sufficient to support the entail. But it has been intimated to us, that we are to consider this a case of collusion. Now I do not see how that is made out; for unless the Judges were colluding, I must look at it as containing their opinions in 1803. It is said this is not a res judicata between the parties. I agree that it is not a res judicata with respect to the Respondent at the bar; but still it is the opinion of the Court of

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14 March 1821.Ordered and adjudged, That the said interlocutor of the Lord Ordinary of the 27th of January and the 19th of February 1813, complained of in the said appeal, be and the same are hereby reversed: Further ordered and adjudged, that the said interlocutor of the Lord Ordinary of the 17th December 1813, also complained of, be and the same is hereby reversed; except so much thereof as finds that the case in question having been granted in consideration of a grassum for a period of 77 years, was to be considered as an alienation; and as finds that alienations were prohibited by the entail of the estate of Stobs: Further ordered and adjudged, that the said interlocutors of the Lords of Session, of the 1st division of the 17th of February and 10th of March 1814, also complained of in the said appeal, be and the same are hereby reversed: and the Lords find, that according to the true construction of the deed of entail of the estate, the prohibition to dispose extends to the lease in question, and that the irritant and resolutive clauses in the same deed of entail do so refer to the specific prohibition to dispose, as to render the same effectual against third parties, and therefore sustain the reasons of reduction of the lease in question: Further ordered and adjudged, that the said cross-appeal be dismissed this house: Further ordered, that the said cause be remitted back to the court of Session in Scotland, to do therein as shall be consistent with this judgment, and as shall be just.