Dame Ann Paterson or Anstruther, and Lady Diana H. Campbell and Others - Ros - Cler - Hope v. Sir W. Purves and Others - Warre - Irving [1823] UKHL 1_Shaw_401

UKHL
Dame Ann Paterson or Anstruther, and Lady Diana H. Campbell and Others - Ros - Cler - Hope v. Sir W. Purves and Others - Warre - Irving
[1823] UKHL 1_Shaw_401
A party who possessed an estate under an entail, prohibiting, inter alia, any alteration of the course of succession, having, by his son's contract of marriage, bound himself to convey the estate to a different series of heirs, and under different conditions from those in the entail, agreeably to which he granted a disposition and procuratory of resignation; and, in expeding the charter of resignation, the conditions and order of succession in the entail having been introduced historically in describing the lands; but the conveyance of them being made in terms of the marriage-contract, and under the conditions ‘supra script.;’ and sasine having been taken accordingly, and possession enjoyed for forty years:—Held, (affirming the judgment of the Court of Session,) that the original entail was superseded, and that the charter and sasine formed the governing investiture of the estate, free from the limitations of the entail.In the year 1697 Patrick Lord Polwarth was created Earl of Marchmont, with a destination to his heirs-male whatsoever; and in January 1703 he executed a procuratory of resignation of his estates of Polwarth, Redbraes, Greenlaw, and others, situated in Berwickshire, in favour of himself in liferent, and Patrick Lord Polwarth, his eldest son, and a series of heirs, in fee, under the restrictions of an entail, and particularly that they should assume the arms and title of Hume of Marchmont, and should not alter the succession thereby destined. Upon this procuratory he obtained a Crown charter on the 29th of July 1704, the dispositive clause of which was thus expressed:—hæredibus et assignatis quibuscunque, hæreditarie et irredimabiliter, cum et sub expressis provisionibus et conditionibus semper subtus specificat.”
“Sciatis nos, &c. dedisse, concessisse, et disposuisse, et pro nobis nostrisque successoribus pro perpetuo confirmâsse, sicuti cum avisamento et consensu prædict. damus, concedimus, et disponimus, proq. nobis et successoribus nostris pro perpetuo confirmamus prædilecto nostro consanguineo Patricio Comiti de Marchmont, Domino Polwarth, &c. in vitali redditu, duran. omnibus suæ vitæ diebus, et Patricio Domino Polwarth, ejus filio legitimo natu maximo, et hæredibus masculis de ejus corpore legitime procreand., in feodo; quibus deficien., dict. Patricii Comitis de Marchmont hæredibus masculis sui maritagii cum quond. Domina Grisella Kerr, ejus sponsa, Comitissa de Marchmont; quibus deficien., dict. Patricii Comitis de Marchmont proximis legitimis hæredibus masculis quibuscunq.; quibus etiam deficien., suis proximis legitimis hæredibus-fœmellis, natu maxima hærede-fœmella semper excluden. reliquas ejusq. gradûs, et succedere absq. divisione; quibus etiam deficien., ejus proximis legitimis

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There then followed a description of the various lands; after which the charter bore that they were resigned in the hands of the Crown for new infeftment to the Earl in liferent, and the above heirs of tailzie in fee:—estate, sicuti congruit, sine qualibet subjectione seu obligatione pro debitis aliisque factis contravenientis, qualibet modo.”
“Et cum et sub dict, provisionibus et conditionibus subtus specificat. viz. Proviso, sicuti tenore præsentis cartæ expresse providetur et declaratur, et sic providebitur infeofamentis desuper sequen., quod dict. Patricius Dominus Polwarth, et reliqui hûredes masculi et substituti succeden. ad dict. terras et lie estate virtute talliæ supra script., astringentur, tenebuntur, et obligabuntur nominare et designare seipsos cognomine de Hume solummodo, et gerere et portare arma et tunicam armoream familiæ de Marchmont: Et etiam proviso, sicuti tenore præsentis cartæ providetur, quod si (deficien. hæredibus masculis) contigeret dict. heredes-fœmells succedere ad dict. terras et lie estate virtute talliæ supra script., tunc et in eo casu dict. hæres-fœmella sic succeden. astringetur, tenebitur, et obligabitur nubere viro nobili vel generoso cognomini de Hume, vel qui, ejusq. hæredes quos succedere contigeret ad dict. terras et lie estate virtute talliæ supra script., dict. cognomen assument, et gerent et portabunt arma et tunicam armoream dict. familiæ de Marchmont: Et similiter proviso, sicuti tenore præsentis cartæ ulterius providetur, quod non erit licitum nec legitimum dict. Patricio Domino Polwarth, nec aliis hæredibus talliæ supra script., vel eorum cuilibet, quodvis factum vel actum directe vel indirecte facere ad frustrandum, infringendum, innovandum, vel alterandum hanc præsentem talliam in ordine successionis, et sub provisionibus et conditionibus ejusd. supra express., aliquo modo: Et si contigeret dict. Patricium Dominum Polwarth, vel quemlibet hæredem talliæ supra specificat., deficere in exacta et punctuali præstatione conditionum supra express., vel quodlibet actum vel factum directe vel indirecte facere in contraventionem ejusd., tunc et in eo casu, et quoties evenire contigeret, contraveniens ipso facto perdet et amittet jus ad dict. terras et lie estate, et eadem devolvent, accrescent, et pertinebunt ad proximum immediatum hæredem talliæ, sub provisionibus et conditionibus supra express; idque ope exceptionis, sine qualibet declaratione, cui erit legitimum se cognosci et deserviri hæredem in speciali vel contravenienti, vel contravenientis immediato prædecessori qui obiit ultimo vestit. et sasit., et desuper obtinere seipsos debiter intrat., infeodat., et sasit. in dict. terris et lie

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In the deed there was no prohibition against alienation, or the contracting of debt; and although there was a resolutive clause, relative to the prohibition of altering the order of succession, yet there was not an irritant one. A power was reserved to the Earl to sell the estate and contract debts; and a clause was introduced, incorporating the whole lands into a free lordship and regality, of which Greenlaw was to be the head burgh. On this charter sasine was taken on the 26th of August 1704.Patrick Lord Polwarth, the institute, predeceased his father without issue; and on the death of the Earl he was succeeded in his honours and estates by his second son Alexander, who made up titles under the investiture 1704, by special service, as heir of provision to his eldest brother Patrick. Earl Alexander married the heiress of Campbell of Cessnock in Ayrshire, by whom he acquired in fee-simple the estates of Cessnock and Sornbeg in that county. He had a son, Hugh Lord Polwarth, who in 1731 entered into a contract of marriage with Miss Ann Western, an English lady of considerable fortune. By this contract (to which Earl Alexander was a party, and in which Charles Lord Binning, and David Mitchell of Papes in the county of Hertford, were trustees for the lady) the Earl, in consideration of the marriage, and of the payment to him of £18,000, (being part of the lady's portion,) bound and obliged himself to convey to these trustees his whole estates, both in Berwickshire and Ayrshire, “in trust, nevertheless, and to and for the uses herein after mentioned, and to and for no other uses, purposes, and intents whatsoever:—that is to say, to the use of the said Hugh Hume Campbell, commonly called Lord Polwarth, and to his heirs-male lawfully begotten on the body of the said Ann Western, his intended wife.”—Then followed certain provisions for the lady and for younger children, and a reservation of the Earl's liferent, with other conditions not necessary to be specified.The marriage having taken place, the Earl, in implement of the above obligation, executed, on the 21st of May 1731, a disposition and procuratory of resignation, proceeding on a narrative of the terms of the contract of marriage. The dispositive clause was thus expressed:—sundry other good causes and considerations moving us here-unto, to have given, granted, and disponed, as, by the tenor hereof, (with and under the express reservations, provisions, and declarations under written, allenarly, and no otherwise, which are to be insert in the infeftment to follow hereupon,) we, with consent foresaid, give, grant, and dispone, heritably and irredeemably, to the said Hugh Lord Polwarth, our eldest son, and his heirs-male of the marriage with the said Ann Western; which failing, to his heirs-male of any other marriage; which failing, to his other heirs who are to succeed to the honours and title of Earl of Marchmont,—all and haill,”
“Therefore wit ye us, the said Alexander Earl of Marchmont, (with consent of the said Charles Lord Binning and David Mitchell, trustees aforesaid,) for the love, favour, and affection which we have and bear to the said Hugh Lord Polwarth, our said son, and for implement and fulfilling of our part of the said marriage articles, and for divers and

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&c. There was then inserted a description of the lands in Berwickshire and Ayrshire, which was followed by the provisions; reservations, and conditions inserted in the contract of marriage. In the procuratory of resignation he gave authority to resign the lands “in favour and for new infeftments of the same to be made and granted to the said Hugh Lord Polwarth, and his heirs-male of the marriage with the said Ann Lady Polwarth; which failing, to his heirs-male of any other marriage; which failing, to his other heirs who are to succeed to the title, honours, and dignity of Earl of Marchmont, heritably, in such due and competent form as accords, with and under the reservations, provisions, and declarations before and after mentioned.” There were then again inserted the provisions, reservations, and conditions contained in the marriage-contract, and an obligation that Hugh Lord Polwarth should expede his infeftments, “with and under all and every the provisions and declarations contained in this present right and disposition, and no otherwise.” No allusion whatever was made in this deed to the investiture 1704, under which the Earl possessed the estates in Berwickshire, and by which they were destined to a different series of heirs. This disposition was followed by a supplementary one on the 5th of March 1734, in relation to lands which had been accidentally omitted in the former one, but which was precisely in the same terms.On the 12th of February 1736, the lands were resigned in the hands of the Crown; and an instrument of resignation was expede, bearing that the resignation proceeded “by virtue of the procuratories of resignation contained in the respective rights and dispositions of the said lands, lordships, and others under written, made and granted by the said Alexander Earl of Marchmont to and in favour of Hugh Hume Campbell Lord Polwarth, his son, and his heirs-male of the marriage with Dame Ann Western Lady Polwarth; which failing, to his heirs-male of any other marriage; which failing, to his other heirs who were

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A charter of resignation was then expede on the 12th of February 1736, the dispositive clause of which bore, that his Majesty conveyed “dilecto nostro Hugoni Hume Campbell Domino Polwarth, filio legitimo natu maximo Alexandri Comitis de Marchmont, &c., et hæredibus ejus masculis maritagii cum Domina Ann Western Domina Polwarth; quibus deficien., hæredibus ejus masculi cujusvis alterius maritagii; quibus delicien., aliis ejus hæredibus qui honoribus et titulo Comitis de Marchmont succedere designantur, hæreditarie et irredimabiliter, cum et sub expressis reservationibus, provisionibus, et declarationibus subscript. solummodo, et haud aliter, quæ in hac præsenti carta et infeofamentis desuper sequen. inseri ordinantur, totas et integras terras,” &c.There then followed a description of the lands, and a translation of the above clauses contained in the titles 1704, specifying the limitations and prohibitions therein expressed, precisely as had been done in the instrument of resignation; after which this clause was introduced:—Hugonis Domini Polwarth, de data Londini quinto die mensis Martis, anno Domini millesimo septingentesimo trigesimo quarto, in manibus dict. Dominorum Scaccarii nostri Baronum apud Edinburgum duodecimo die mensis Februarii instantis, debite et legitime resignatæ fuerunt in favorem proque hoc novo nostro earund. infeofamento præfato Hugoni Domino Polwarth, ejusque hæredibus masculis maritagii cum dict. Anna Domina Polwarth; quibus deficien., hæredibus ejus masculis cujusvis alterius maritagii; quibus deficien., aliis ejus hæredibus qui titulo et dignitati Comitis de Marchmont succedere designantur, hæreditarie et irredimabiliter, dand. et concedend. in tam debita et competenti formâ uti congruit, cum et sub reservationibus, provisionibus, et declarationibus in dict. dispositione content. et postea mentionat.”
“Quæquidem terræ, dominium, regalitas, baroniæ, molendina, terræ molendinariæ, decimæ, rectoriæ et vicariæ, jura patronatûs, aliaq. particulariter supra specificat., jacen. modo respective supra mentionat., cum omnibus suis pertinen. (terris et baroniâ de Sornbeg, comprehenden. particulares terras, decimas, aliaq. supra mentionat., exceptis,) ad diet. Alexandrum Comitem de Marchmont perprius hæreditarie pertinuerunt, per ilium ejusq. prædecessores de nobis nostrisque regiis prædecessoribus tent., et quæ per præfat. Alexandrum Comitem de Marchmont, ejusq. legitimos procurators ejus nomine ad hune eflectum specialiter constitut. per patentes literas procuratoriales content. in jure et dispositione præmissorum, et concess per dict. Alexandrum Comitem de Marchmont, cum consensu demortui Caroli Domini Binning, et Davidis Mitchell de Papes vicecomitatu de Hertford, Armigeri, pro dict. Anna Domina Polwarth, fidecommissariorum; ad et in favorem dict. Hugonis Domini Polwarth, ejus filii, ejusq. prædict., de data Londini vigesimo septimo die mensis Maii, anno Domini millesimo septingentesimo trigesimo primo, et content. in jure et dispositione fact. et concess. per dict. Alexandrum Comitem de Marchmont, cum consensu prædict.; ad et in favorem præfat.

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The reservations and provisions here mentioned were those which were inserted in the contract of marriage. The tenendas clause bore, that the lands were to be held “sub reservationibus; provisionibus, et declarationibus supra specificat.;” and the precept of sasine directed sasine to be given, “cum et sub expressis reservationibus, provisionibus, et declarationibus supra script. solummodo, et haud aliter.” These words, ‘supra specificat.’ and ‘supra script.,’ were capable of being applied to the whole provisions, conditions, &c. previously inserted in the deed, including those taken from the titles of 1704.In virtue of this charter, sasine was taken in October, and recorded in November 1737. The instrument commenced by narrating, that the attorney of Hugh Lord Polwarth had come to the ground, “habens et in suis manibus tenens quandam cartam, præceptum sasinæ sub insert. in se continen. fac. dat. et concess. sub Magno Sigillo S. D. N. Regis, præfato Hugoni Hume Campbell Domino Polwarth, et hæredibus ejus masculis maritagii cum Domina Anna Western Domina de Polwarth; quibus deficien., hæredibus ejus masculis cujusvis alterius maritagii; quibus delicien., aliis ejus hæredibus qui honoribus et titulo Comitis de Marchmont succedere designantur, hæreditarie et irredimabiliter, cum et sub expressis reservationibas, provisionibus, et declarationibus subscript., et haud aliter, quæ in hoc præsenti infeofamento inseri ordinantur, de totis et integris tetris, &c., aliisque particulariter subtus specificat.” After this there was inserted a description of the lands, and the provisions, conditions, &c. of the investiture 1704 were then introduced in the same way as had been done in the instrument and charter of resignation. The sasine then stated that the lands &c. had been resigned in the hands of the Crown, in

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In 1739 Earl Alexander died, and was succeeded by his son Hugh Lord Polwarth, now Earl of Marchmont, who continued to possess the estates, in virtue of the above charter and sasine, till 1794, when he died. He left three daughters,—Lady Ann, who was dead, but had a daughter by Sir John Paterson,—Lady Margaret, who died without issue,—and Lady Diana, who was married to Walter Scott of Harden, by whom she had children.On the death of Hugh Earl of Marchmont, it was found that he had executed a trust-disposition and deed of settlement conveying his estates to Messrs. Wauchope and Cumming, writers to the signet, for various purposes, and, inter alia, to make them over to a series of heirs nominated in a relative deed of tailzie;—
“whom failing, the heirs-male of the body of Lady Diana Hume Campbell, alias Scott, to be procreated between her and any other husband she might happen to marry after the decease of Walter Scott, Esq. of Harden, in case she shall survive him; whom failing, any daughter or daughters to be procreated of the body of the said Lady Diana Hume Campbell, alias Scott, by any other husband than the said Walter Scott, in their order, and the heirs-male of their bodies respectively; whom failing, any other daughter or daughters yet to be procreated of my own body, and the heirs-male of their bodies respectively; whom failing, the heirs of the body of Sir Alexander Purves of Purveshall, and to the heirs-male of their bodies,”
&c. The trustees, in consequence of this deed, expede a charter of resignation, and were infeft, and thereafter conveyed the lands to the respondent Sir William Purves, the son of Sir Alexander, and who had right under the deeds executed by Earl Hugh. On the other hand, Lady Diana and her family, and his grand-daughter Lady Paterson or Anstruther, claimed right under the investiture of 1704, by which the estates in

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In defence, and as a title to exclude, it was maintained by Sir William Purves, and the other heirs having right under the deeds executed by Earl Hugh in 1794, that by the charter and sasine of 1736 in favour of his Lordship, the estates had been conveyed to him and the heirs therein mentioned, subject only to the reservations and provisions in his contract of marriage, and without any of the limitations imposed by the original tailzie; and that as he had possessed on that charter and sasine for more than 40 years, he had acquired an effectual prescriptive title to the lands in fee-simple.The Lord Ordinary found, that “by the marriage articles of the 1st of May 1731, Alexander Earl of Marchmont, with a view to the marriage of his son Hugh, then Lord Polwarth, with Miss Ann Western, and to the payment of £18,000 of the lady's fortune, became bound to convey the estate of Marchmont to trustees for behoof of the heirs-male of the marriage, and under certain ‘reservations, provisions, and declarations’ in favour of himself and of his son's wife, and of the younger children of his son's marriage, but without any other limitations, and particularly without reference to the provisions and conditions contained in the tailzie of 1704, under which Alexander Earl of Marchmont held the estate, and also without reference to the nomination or substitution of heirs contained in that deed: That, in implement of the said marriage articles, Alexander Earl of Marchmont executed a disposition on the 21st May 1731, and a supplementary disposition in 1734–5, conveying his estate, under the same ‘reservations, provisions, and declarations’ as those expressed in the marriage articles,

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Against this judgment the appellants reclaimed; but the Court, on the 19th of February and 27th of May 1819, adhered. * The appellants then entered an appeal, and contended,—1. That as the deed of tailzie in 1704 contained effectual clauses against altering the order of succession, Earl Alexander could not competently grant any deed for making an alteration of that course of succession: and therefore, if the deeds of 1736 were to be considered as inconsistent with the original tailzie, they were null and void.2. That the deeds of 1736 were expressly qualified with the limitations of the original tailzie, because the dispositive clause in the charter conveyed the lands subject to the conditions of that tailzie, and precept was given to infeft subject to the conditions ‘supra script.,’ and sasine was taken under the conditions ‘subscript.,’ which referred to those of the original entail; and therefore the deeds of 1736 could form no title of prescription, so as to create a more extensive right to the lands then under the entail of 1704: And,—3. That supposing they could afford such a title, still, as they were qualified by the limitations created by the original tailzie, under which the appellants had right to the estate, they were entitled to claim by virtue of these deeds, and independent altogether of the original tailzie; and that, even by the deeds of 1736, Earl Hugh was effectually prevented from executing the trust and entail of 1794.

On the other hand, it was maintained by the respondents,—

1. That the original tailzie was entirely superseded and swept away by the charter and infeftment in 1736, and the possession had thereon, which titles thenceforth became the governing investiture of the estate.2. That although, in framing the charter and sasine, the terms of the original tailzie had been introduced, yet this had been done merely historically, and with the view of describing the subjects: and that accordingly the charter was granted, and the sasine taken, only under the reservations contained in the contract of marriage.The House of Lords “ordered and adjudged, that the said petition and appeal be, and is hereby dismissed this House; and that the said interlocutors therein complained of be, and the same are hereby affirmed.”Appellant' Authorities .—2. Ersk. 3. 23. 24; 1. Jur. Styles, 438.Solicitors: J. Richardson,— Spottiswoode and Robertson,—Solicitors.

( Ap. Ca. No. 6.)

Footnote

* Not reported.