Sir Michael Shaw Stewart Bart. - Lord Advocate (Jeffrey - Knight. v. James Corbet Porterfield Esq. - Lushingto - Rutherford. [1831] UKHL 5_WS_515

UKHL
Sir Michael Shaw Stewart Bart. - Lord Advocate (Jeffrey - Knight. v. James Corbet Porterfield Esq. - Lushingto - Rutherford.
[1831] UKHL 5_WS_515 · 1821-05-15
A party executed a deed of entail in favour of an institute and the heirs male and female of his body, and the heirs male of the entailer's body; whom failing, heirs to be named by any writing under his hand; whom failing, other heirs; reserving a power to alter the succession generally, except as to the institute and the heirs male and female of his and the entailer's body; thereafter he made a deed whereby he altered the line of succession, and nominated heirs preferably to the heirs female of the institute, and to the other heirs called after the substitution hæredibus nominandis; and the estates were possessed for more than forty years on the entail alone, without reference to the deed of nomination:—Held (affirming the judgment of the Court of Session on a remit from the House of Lords), that the deed of nomination was a valid exercise of the faculty to name heirs; that an heir called by it was preferable to an heir called by a posterior substitution; and that proscription had not taken place so as to exclude the former.In this case (the facts of which will be found ante, vol. ii. p. 369,) the Second Division of the Court of Session had (22d June 1820) found, “That Mr. Corbet Porterfield is entitled “to be served heir of tailzie and provision under the brieves

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On appeal, the House of Lords (24th May 1826) ordered, “That the said cause be remitted back to the Court of Session in Scotland, to review generally the interlocutors complained of. And it is further ordered, that the Court to which this remit is made do require the opinion, in writing, of the other Judges of the Court of Session, on the whole matters and questions of law which may arise in this cause; which Judges are to give and communicate the same; and, after so reviewing the interlocutors complained of, the said Court do and decern in the said cause as may be just.” Under this remit the Court of Session, “in order to their reviewing generally the interlocutors complained of in the appeal, and providing otherwise, in pursuance of said judgment,” appointed parties to give in cases, and it was agreed and directed that the question, “Whether, on consideration of the whole pleas respectively urged by the parties, Sir Michael Shaw Stewart or Mr. Corbet Porterfield is entitled to be served under the competing brieves, or either of them?” should be put to the consulted Judges.The following opinions were returned:Lords President , Balgray , Craigie , Gillies , Corehouse, and Newton .—“The question proposed to the Court, namely, Whether Sir Michael Shaw Stewart or Mr. Corbet Porterfield is entitled to be served under the competing brieves, or either of them?” appears to us to depend on the decision of two pleas in law on which parties are at issue:1. “Whether the instrument 1742, in so far as it calls Jean

Footnote

* Sir Michael Stewart died on the 5th of August 1825, and die appeal was taken by his son Sir Michael, who also took out brieves for service as heir of tailzie and provision to Alexander Porterfield, last of Porterfield, in the same terms with the brieves purchased by his father. These brieves, which were directed to the sheriff, having been opposed by the respondent, the sherifF made avizandum to their Lordships of the Second Division, who (24 th February 1826) “In respect that under the former proceedings in the competition between the late Sir Michael Stewart and James Corbet Porterfield, the latter was found entitled to be served heir of tailzie and provision, and has since been actually infeft in and obtained possession of the estate of Porterfield,” remitted to the sheriff to dismiss the brieves.

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If it can be shown that Jean Porterfield and the heirs male of her body held a place, within the years of prescription, as substitutes in the entail 1721, prior to the heirs female of the body of Boyd Porterfield, it is indisputable that their right cannot have been lost by prescription since that period, for William Porterfield and his nephew Boyd Porterfield possessed the estate of Duchal and Overmains by virtue of the investiture under the marriage contract 1721 alone, and therefore could not prescribe against their own title, which bore, in gremio, the sixth substitution to heirs to be named by the entailer, as well as the seventh to the heirs female to be born of his body. On the other hand, if Jean Porterfield and the heirs male of her body were not substitutes under the entail 1721, prior to the heirs female of the body of Boyd Porterfield, but were only entitled to demand execution of a new entail, calling them in that place, it is possible that that obligation, not having been enforced against the heirs in possession, may have been so extinguished.According to the argument of Sir M. S. Stewart, if an investiture contains a substitution hæredibus nominandis, and a nomination is afterwards executed, the nominees are not heirs of the investiture unless the instrument of nomination shall be incorporated with it, or a service expeded under the nomination as a title, which he seems to think would render it part of the investiture. We are of opinion that that plea is not maintainable. It is an established principle in the law of Scotland, that heritable property can be conveyed only by certain forms of expression, importing the present disposal of the subject, as in the ordinary style of a procuratory of resignation or disposition; but if the appropriate form of expression is used, it may be effectually conveyed, not only to persons in existence, but to future and contingent persons, substituted to each other in a series of any length, and on that principle the law of entail is founded. In a destination of this nature it is immaterial by what description

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One example of contingent conveyance, very frequent in practice, is a substitution in favour of persons to be afterwards named by the entailer. This is convenient, because it saves the trouble of executing a new entail— (a deed cumbrous and expensive, and of difficult preparation,) when additional substitutes are to be introduced, or the previous order of succession to be varied. The contingency is thus made to rest, not on extrinsic circumstances or events, independent of the entailer, but on a resolution to be afterwards formed in his own mind. There is

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Various attempts have been made by Sir Michael Shaw Stewart to distinguish the case of hæredes nominandi from that of other contingent heirs, but we are of opinion that all those attempts are unsuccessful. It is said that a disposition to an unborn heir involves but one contingency, whereas a disposition to the heir of a person to be named depends for effect on a double contingency, viz. 1. Whether a nomination shall be made; and, 2. Whether the person nominated shall have an heir. But when it is once admitted that a contingent conveyance is effectual, and the whole law of tailzie rests on that principle, it matters not how many contingencies are combined to form the condition under which any substitute is called, and in practice such combinations are frequent. Next it is said that the nomination must accrue to the tailzie, and constitute a part of it, because it is necessarily an instrument in writing; whereas parole proof is admissible, if the claim of the substitute rests on propinquity, or any other circumstance extrinsic of the conveyance. Every condition under which a substitute is called must be proved to the inquest by that species of evidence of which it is susceptible. If it be a fact, as birth, marriage, or domicile, a proof prout de jure is competent; if it be the possession of an

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Holding, therefore, that a substitution hæredibus nominandis is essentially different from a reserved power to alter the destination in an entail, with which Sir M. S. Stewart endeavours to confound it, and that the heirs named by virtue of such a substitution are entitled to serve under the original investiture, it remains for consideration whether Jean Porterfield and the heirs male of her body were nominees under the sixth substitution of the entail 1721, or whether, as Sir M. S. Stewart contends, their only claim, if they had a claim, rested on the power

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Farther, it is particularly deserving of notice in this instrument, that when the entailer, in repeating the destination of Blacksholm, arrives at that substitution in which the heirs not previously named in the entail of Duchal are called nominatim to the succession of Blacksholm, and of consequence to that of Duchal also, he states in terminis that he does this, not by virtue of his reserved power to alter the investiture of Duchal, but of his reserved power to nominate under that investiture; “and that because I reserved to myself a power to name the subsequent heirs of tailzie after my son, William Porterfield, and his heirs aforesaid.” It appears to us unreasonable to contend that the entailer, having reserved two powers, and declaring here

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Sir Michael Shaw Stewart founds chiefly on a clause in the deed 1742, which he represents as a declaration that Alexander Porterfield intended that the entail of Duchal should be altered. Having recited the destination of Duchal, he proceeds thus:—

“And being resolved to adject, eik, and add the saids new purchased lands”

(Blacksholm) “to my tailzied estate above specified,” (Duchal,) “with and under the same clauses and provisions mentioned in the foresaid bond of tailzie, but with the alteration, change, and innovation of the order, course, and succession underwritten, which is hereby declared to be the order, course, and succession to my foresaid estates and lands, both old and new, with and under the additional clauses and provisions after specified: Therefore wit ye me,” &c. The entailer expresses his will that the destination of Blacksholm should be different from the previous destination of Duchal, and that the destination of Blacksholm, so changed, should afterwards be observed in Duchal, which is plainly equivalent to saying that the destination of Duchal should be changed, and consequently it is inferred that he had resolved to exercise his power to alter the Duchal investiture, and not his power to nominate under it. We are of opinion that this is only an ingenious

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Taking this clause therefore in literal sense, it does not import that Alexander Porterfield intended the deed 1742 as an alteration of the Duchal investiture, or that the substitutes in question should not take as nominees; his intention evidently was the same as if he had executed two deeds, the one an entail of Blacksholm, the other a nomination of the heirs in it to be also heirs of Duchal. But farther, we think that the mode of construction resorted to by Sir M. S. Stewart, as applied to a mortis causa deed, and more particularly a deed ex facie the work of an unskilful and uneducated conveyancer, is altogether unwarrantable. Such deeds are to be expounded so that the will of the maker shall be enforced, or, in the words of the maxim, verba debent intelligi cum effectu, ut res magis valeat quam pereat. There is no dispute here that Jean Porterfield and the heirs male of her body were the hæredes prædilecti of the entailer called to the estates whenever the succession opened to them, however distant that event might be. Considering the probability that a long period would elapse before the failure of

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The second plea maintained by Sir M. S. Stewart is, that the deed 1742, in so far as it calls Jean Porterfield and the heirs male of her body to the succession of Duchal, is null for want of power.By the marriage contract 1721 Alexander Porterfield reserved power to regulate the succession of that estate, except in so far as the heirs of the body of his son William and the heirs male of his own body were concerned; but in the entail of Blacksholm in 1742, an estate entirely in his own power, he preferred the heirs female of his own body to the heirs female of William's body, and he declared at the same time that the succession should be the same in both estates. William never had heirs female of his body; but as they were in posse in 1742, it is said that this declaration was ultra vires of Alexander the entailer, and vitiated the whole nomination in reference to Duchal. We are of opinion, in the first place, that it was not the intention of Alexander, in the deed 1742, to prefer the heirs female of his own body to those of William's body in the estate of Duchal. In the narrative of that deed he recites the obligations contained in the contract 1721, and in particular he recites

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But granting in argument what it is impossible to admit in fact, that Alexander Porterfield intended by this deed to violate an obligation the subsistence of which he had so expressly declared, we are of opinion that an abortive attempt to confer the preference in question would not annul the deed, in so far as it was within his power. There is nothing to prevent a separation of the good substitutions from the bad, such separation being matter of daily practice in enforcing the provisions of entails. Many precedents might be referred to of this nature, and in particular that of Mackay against Lord Reay, alluded to in the argument for Sir Michael Shaw Stewart. In that case a destination in one part within and in another beyond the power of the entailer was sustained in part, and in part reduced. The distinction attempted to be taken by Sir Michael Shaw Stewart we consider unfounded. In the present case,—quoad the jus disponendi—the power of regulating the succession of the estate,

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These views, which have been stated in reference to the lands of Duchal and Overmains, apply, à fortiori, to the superiorities of Porterfield and Hapland, to which Boyd Porterfield completed a feudal title, bearing express reference to the deed 1742.Therefore, in answer to the question proposed, we are of opinion that Mr. Corbet Porterfield is entitled to be served heir to William Porterfield in the lands of Overmains, to Boyd Porterfield in the superiorities of Porterfield and Hapland, and to the late Alexander Porterfield in Duchal.”Lord Mackenzie .—“I had made up, as prefatory to my opinion, a statement of the circumstances of this case; but it is so long, and so little necessary where these circumstances are so fully and fairly before the Court, and have been stated so often already, that I prefer omitting this statement, and coming at once to the opinion which, after very full consideration, I continue to entertain.1. I shall, in the first place, endeavour to explain the view I have of the original nature and effect of the deeds 1721 and 1742.Alexander Porterfield, under the deed 1721, had undoubtedly a power of nomination as well as of alteration. These were different in their nature, and in consequence of the base infeftment taken, which carried the property, came to be different in their modes of operation. The power of nomination did not enable Alexander Porterfield to take out from the destination any heir or class of heirs, or to change their place in the destination, but merely to insert heirs at a particular part of the destination. The power of alteration enabled him to do any thing he pleased with the destination, so far as subject to hat power, and most eminently to change the places of heirs or classes of heirs. Again, the power of alteration, after the base infeftment had been taken, could not operate without new infeftment. When

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Another view has been taken, which (though certainly not without much diffidence) I feel myself not able to adopt. This is, that the deed of entail 1721, or any other similar deed having a substitution hæredibus nominandis, is in itself instantly a full and completed conveyance, even in respect to the destination of heirs; and that the after nomination of heirs is not at all of the nature of a continuation of or addition to the conveyance of right, but merely an extrinsic act, creating, in point of fact, persons, and evidence of the existence of persons, qualified to take under the previously completed substitution to a particular class of heirs called heirs nominandi, but in no degree adding to or qualifying the deed or investiture of conveyance itself, just as marriage and its consequences are extrinsic acts, creating persons qualified to take under substitutions to heirs male or female of the body, &c. 1 think this is going too far. It appears to me that the nomination, under a power to do so, of persons to be heirs of tailzie under a particular entail, can never be viewed as an act extrinsic to the entail; but that, whether executed immediately or at some distance of time, it must be viewed as a conveyance warranted by the original deed, forming the complement of that deed, and together with that deed constituting the whole entail. For this reason, I think that it is necessary that such nominations shall be provided to be made, and shall be made by a deed written and

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So in the instrument given as a style by Dallas where the grant is, “to any other person or persons to be destinat and nominat by the said V. any time during his lifetime, even on death-bed, by whatsoever writ or schedule apart under his hand, (and which writ is declared by the said charter to be as good and fundamental right and title to the said heirs of tailzie so be destinat and appointed as said is, succeeding heirs of tailzie in special, in the lands and estate after mentioned, and to be infeft thereupon, as if they were expressed by name and sirname therein.)” So in the style, page 582,

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These deeds appear to me to be quite consistent with the view I have adopted, and with that view only. Indeed, I think that this view is adopted in the very able case for Mr. Corbet Porterfield, where it is said, “The deed of nomination, as soon as executed, accrues to, and in effect becomes a part of the original investiture;” and the case of Douglas is referred to as showing this.Entertaining the view of the nature of a destination hæredibus nominandis that I have above explained, I come to the question (an important one in this cause), whether the deed 1742 can be regarded as a nomination at all, or so far as to avail the respondent.I have already observed that Alexander Porterfield had in him two powers,—one of nomination of heirs under the branch of destination hæredibus nominandis, the other of alteration, innovation, and change. These powers were distinct and different. If he executed a nomination under that branch, this could not be regarded as an alteration, but as the completion of the destination provided in the original deed. So, if he executed an alteration, that could not be taken as a nomination under that branch, for, if so taken, it would no longer have been an alteration, and must necessarily have reduced the deed into a

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With these observations I turn to the deed 1742; and I feel compelled to say, that though I have looked over that deed again and again, I cannot find any thing in it to show that Alexander Porterfield either intended to exercise or did exercise in it any power but that of alteration, and still less any power of nomination under the branch hæredibus nominandis that can avail in this question. In that deed, after a full narrative of the marriage contract and the acquisition of new land, the entailer proceeds:—
“And being resolved to adject, eik, and add the saids new purchased lands to my tailzied estate above specified, with and under the same clauses and provisions mentioned in the foresaid bond of tailzie, but with the “alteration, change, and innovation” of the order, course, and succession therein contained and above repeated, in so far as is inconsistent with the order, course, and succession under written, which is hereby declared to be the order, course, and succession to my foresaid estates and lands, both old and new, with and under the additional clauses and provisions after specified.”
Here is an express declaration of intention to make use of the power of “alteration, change, and innovation,” but not a hint of any intention to make use of the power of nomination under the branch hæredibus nominandis. It has been argued, that the declaration here is the exercise of that power of nomination. That, however, seems to me impossible to be received; for I cannot understand how a man, saying I am to alter my destination, and when so altered declare it to extend to two estates can be held to have done any thing, or even expressed any intention, referable to a power distinct from that of alteration. Accordingly the deed proceeds, in conveying the newly-acquired

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I have already observed, that supposing the insertion of certain new heirs, and the expression by Alexander Porterfield of his reasons for naming them, could be regarded as an exercise of the power of naming heirs under the substitution hæredibus nominandis, yet this could go no further than the appointment of these new heirs. The insertion of these new heirs, with a special reference to the power of nomination, could never convert into a mere nomination of new heirs, under such substitution, the whole of the rest of the destination, which contains nothing else but a new arrangement of the order of succession among the old heirs, made without any such special reference, but, on the contrary, made after a preamble that he was to exercise his right of alteration. Unless, however, the whole destination 1742 can be made nomination under the substitution hæredibus nominandis, it seems plain that the substitution of Jean Porterfield and the heirs male of her body, in virtue of which the respondent claims, can as little be made such as any other part of it. She and the heirs male of her body were just like all the others, excepting those of Fullwood and Hapland, i. e. they had been called before in the deed 1721, though not in the same manner nor in the same place. Even if we could view part of the destinations 1742 as nomination under the substitution hæredibus nominandis, the calling of this lady and her heirs male can never be held as included in that part, in which case the argument for nomination is one which the respondent has no interest to maintain. It is asked whether, supposing there had been no other power reserved

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2. Viewing the deed 1742, then, as an alteration of the deed 1721, not as a nomination under the substitution hæredibus nominandis, at any rate not as a nomination under that power in respect to any heirs but the Porterfields of Fullwood and Hapland, which could be of no moment in this cause; the next question is, whether that alteration can be availing to the respondent in this process? Now, in so far as relates to the superiorities of Porterfield and Hapland, the alteration seems fully operative, for it appears to have passed into the investiture by the titles made up in 1773, which stand unreduced as yet, and I think are now not reducible. Under these titles, forming the investiture in these estates, the respondent seems to be the heir entitled to succeed; and as the process before us is a competition of brieves, it appears to me that he is entitled to be preferred therein. So far as relates to these subjects, I concur in the opinions of the Second Division of the Court.In regard to Duchal and Overmains, the observation recurs, that the process before us is a competition of brieves for service under the existing investiture. Now the existing investiture as to Overmains is under the deed 1721, and base infeftment thereon merely, and of course the alteration can have no effect in the competition for being served heir as to Overmains. And then it is not denied that the appellant, not the respondent, is the preferable heir under the infeftment, if held to stand unaltered by the deed 1742. In respect to Duchal, the existing investiture is under the deed 1721, and infeftment thereon, and the confirmation of that base infeftment, which confirmation is wholly without mention of any alteration whatever. Of course, therefore, that alteration can be of no effect in this competition of brieves, in so far as respects Duchal, any more than in respect to Overmains; so that, taking the investiture as it stands under the infeftment 1721, and holding it to be unaffected by the deed

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In this view, it is perhaps not necessary to enter into the question respecting the original validity of the alteration, or its liability to prescription. As the question has however been fully argued, I must say,—1. That I think the alteration was certainly not valid in toto, but that I think the bad part of it separable. i e. the alteration, in so far as related to the heirs female of William Porterfield. Over these heirs Alexander Porterfield in 1742 had no power, and therefore his express insertion of them in a latter place of the destination, and his expunging of them from their proper place, must both be held as null. But, with this correction, I think the rest of the alteration might have originally been made effectual.2. That in respect to prescription, I do not see how there could be any prescription during the life of Alexander Porterfield, who held the power of alteration during his life. Till his death it was never finally exercised, nor could be operative. On his death there appears to have been an immediate obligation binding William Porterfield and his heirs to make up titles agreeably to the alteration, which was liable to the negative prescription, like any other obligation, provided there existed in the obligee a sufficient interest to prescribe against it. And I think William Porterfield had a sufficient interest, as merely heir of entail in possession, in as far as the alteration brought in additional substitutes of entail, every heir of entail having an interest to get rid of after-substitutes of entail as far as he can, and particularly an heir in whose heirs and assignees generally the destination terminates. And further, William Porterfield had a sufficient interest to prescribe, in as far as by the alteration his own heirs female were postponed to a number of heirs who previously were postponed to them, or not in the entail at all. Boyd Porterfield had interests just similar to those of William, i. e. to get rid of the additional substitutes, and also of the postponement of his own heirs female to other heirs, who in the original entail stood postponed to them. Alexander Porterfield, 2 d ,

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The opinion which I have yet given, it will be observed, is applicable to the deed 1742, viewed as an alteration only, not oi? the supposition that it could be regarded as a nomination under the substitution hæredibus nominandis. In that view the cause assumes an aspect somewhat different. In that view I consider the two deeds 1721 and 1742 as forming two parts of the entail of Duchal, &c. left by Alexander Porterfield. These parts I consider both as conveyances, not as mere evidence of any fact intrinsic, to the conveyance of entail. Then I consider these deeds so far distinct deeds, that the existence and full effect of the first nowise depends upon or necessarily implies the existence of the second. The deed 1721, even in this view, was a sufficient effective settlement in itself, an entail liable to no objection on that account, although no such deed as that of 1742, nor any nomination under the power of nomination, ever had been

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In regard to Overmains, in this view of the nature of the deed 1742 as a nomination merely, the case seems different. It does not appear that any title was evermade up to these lands excluding the deed 1742. Base infeftment indeed was taken of these lands on the deed 1721 when it was first granted, and before the deed 1742 existed; and this was afterwards confirmed by the superior, without any mention of any actual deed of nomination; but I do not consider that as exclusive of any subsequent deed of nomination to be executed by Alexander Porterfield. There is some difficulty in this; but I think I can go so far as to hold that a superior, giving a charter to a person and the heirs to be named by him in a subsequent deed, does grant an infeftment that does invest those heirs (as such) when the nomination is finally left effectual. That is quite a different thing from a service and infeftment after a nomination has been made, taking no notice of it, but only mentioning the deed containing a clause of power to make such nomination. In the former case the superior makes all the mention of the nomination that can possibly be made, i. e. he mentions it as a deed to be made in future. In the latter case the service, though the deed of nomination has actually been made, makes no mention of any such deed having been made or existing, but speaks only of the deed, with the clause of power to nominate, exactly as it would have spoken if no such nomination had ever been made. I do not think therefore that there is any inconsistency in holding that the nomination in the one case is excluded, and not in the other. It is true that afterwards, in 1746, William Porterfield took confirmation of the deed 1721, and infeftment on it, without mention of the

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Lord Meadowbank .—“I concur in every part of the judgment as delivered by Lord Mackenzie.”Lord Medwyn .—“I concur in the foregoing opinion, in so far as it considers the deed of 1742 as an exercise of the power of alteration reserved by Alexander Porterfield in the marriage contract 1721, except perhaps as to the nomination of the heirs male of Fullwood and Hapland,—and that it is not to be held as the filling up of what has been termed the sixth substitution by the nomination of heirs between the heirs female of his son William's body and the heirs female of his own body; and as to the result deducible from this, that Sir Michael Shaw Stewart is entitled to be preferred in this competition so far as regards the estates of Duchal and Overmains. Perhaps I do not differ materially from the views contained in the latter part of the opinion; but as it is unnecessary to enter upon them in consequence of the view I take of the deed 1742, that it is an exercise of the power of alteration, I rather wish to decline offering any opinion as to the consequences of the alteration having gone beyond the powers reserved in the deed 1721, and as to what would be the effect of the deed 1742 on the rights of the parties, viewing it as a nomination under the substitution hæredibus nominandis.”Lord Cringletie .—“The question now before the Court is relative to the estate of Porterfield, the succession to which was claimed by Sir Michael Shaw Stewart in opposition to James Corbet, Esquire. The Lords of the Second Division decided in favour of the latter; and, on appeal by the former, the House of Lords remitted to the Court to reconsider the question, and to require the opinions in writing of the other Judges of this

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In compliance with this requisition, Lord Cringletie offers the following opinion:—The matter in dispute is purely a question inter hæredes, arising out of the settlements of Alexander Porterfield of Porterfield, and therefore is to be decided according to the will of the granter of these deeds, in so far as it is not opposed by conflicting principles of law. Alexander Porterfield of Porterfield had a son named William who was married to Miss Juliana Steel, daughter of the Rev. William Steel, minister of the parish of Lochmaben. On that occasion a contract of marriage, dated 19th and 21st October 1721, was executed by the parties, in which Alexander Porterfield disponed his estates of Duchal, Overmains, and the superiorities of Porterfield and Hapland, to himself, in life-rent and in fee, to the following series of heirs, viz.1. To his said son William and the heirs male of the marriage. 2. To heirs male of William by any other marriage. 3. To heirs male of Alexander's own body. 4. To the eldest heir female of William's body. 5. To the next heir female successive of William's body. 6. Whilks failing, any other heirs of tailzie to be nominated by the said Alexander Porterfield by writ under his hand at any time in his lifetime, in his liege poustie; which failing, 7. To the eldest heir female of the body of the entailer. 8. To his next heir female successive. 9. To heirs whatsoever.Alexander also reserved to himself, at any time of his life, while in liege poustie, power “to alter, innovate, or change the order, or course and succession, of the haill heirs of tailzie above specified, except the heirs male and female of his son's body, and the heirs male descending of the said Alexander Porterfield, his own body,” &c.And it was declared in said contract, “That the said William Porterfield, and his heirs and successors, shall be obliged to take the rights, securities, and infeftments of the said haill lands and others above mentioned, with the burden of the irritancies and provisions herein contained, to and in favours of

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He therefore disponed, under all the clauses of a strict entail, his lands of Blacksholm,—1. To the heirs male of his son William's body (secluding William himself); which failing,—2. To the entailer's grandson, Boyd Porterfield, by his second son John, and the heirs male of Boyd's body. 3. To the heirs male of the body of Alexander Porterfield of Fullwood. 4. To the heirs male of the body of Gabriel Porterfield of Hapland; and that, “because I reserve to myself a power to name the subsequent heirs of tailzie after my son William Porterfield, and

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From the above detail these observations occur:—l. That Alexander exceeded the power reserved to him, in so far as he postponed the heirs female to be procreated of his son William's body to the heirs of the bodies of Alexander and Gabriel Porterfields, and to his own daughters and the heirs of their bodies; so that had any heirs female of William's body existed, it is quite clear that they had a right to challenge that deed of their grandfather, in so far as respected the lands specified in the contract of marriage; but it is equally clear that, if they had done so, they must have abandoned Blacksholm, because their grandfather was entitled to dispose of it ad libitum, and in the succession to it they were postponed to the others already mentioned. 2. It is equally clear that, in so far as regarded the heirs female of Alexander's own body, he was under no restraint to interpose other heirs before them; and when I look to the deed 1742 I do not think that there is any alteration of the course of succession in the contract 1721, except the postponement of the heirs female of William's body. To that extent there can be no doubt there is an alteration which might have been set aside by these ladies if they had existed. Quoad ultra, the deed 1742 merely interposes other heirs between the heirs of William's body and the heirs female of Alexander's own body by calling his own daughters before those of his son Boyd, and adds after them a few more heirs, which is a nomination, and cannot be called an alteration.Alexander died 14th May 1743; soon after which the deed 1742 was recorded in the books of this Court, but by whom is unknown. William was infeft, on the precept of sasine in the marriage contract, in the lands of Duchal and Overmains, and obtained from Lord Glen cairn, the superior of Duchal, a charter in 1746, confirming the contract of marriage and subsequent infeftment, the effect of which was merely to convert the base holding into a public one. As to the lands of Overmains, he

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William died in 1752 without issue, when he was succeeded by his nephew Boyd, who made up titles to Duchal by serving heir of tailzie to his uncle under the marriage contract, and taking a precept of clare constat from Lord Glencairn, referring to the infeftment and destination hæredibus nominandis therein contained, but without taking any notice of the deed 1742, which had not then come into operation, in respect that Boyd Porterfield was entitled to succeed before any of the heirs newly called by that deed, viz. the heirs male of Full wood and Hapland, or the tailzier's own daughters and the heirs male of their bodies. With regard to Overmains, he possessed it in a state of apparency, as heir of his uncle, under the sasine taken on the contract of marriage.As to Blacksholm, Boyd entirely disregarded the deed 1742. He served himself heir of line to his grandfather—took thereby the procuratory of resignation in the disposition to that gentleman—passed a charter thereon—was infeft and held the lands in fee simple; so that the investiture being now secured by prescription, there is no question about these lands.The superiorities of Porterfield and Hapland were taken up by Boyd, who, of the same date with his service as heir of line, also served himself heir of tailzie and provision of his uncle William, by which he got right to the unexecuted procuratory of resignation of these lands in the marriage contract; and he obtained a charter of resignation from the. Crown, dated 6th August 1773, granting these subjects to him, and the heirs particularly called by the deed 1742, which is expressly referred to in the charter; and on this he was infeft 14th January 1774. Boyd Porterfield died in 1795, and was succeeded by his son Alexander, who completed his titles to Duchal precisely as his father had done, without reference to the deed 1742. I understand that he possessed Overmains on apparency, and made up no titles to Porterfield and Hapland; but he was enrolled as apparent heir to his father Boyd, on which occasion he produced and founded on the said Crown charter and sasine.He died in 1815 without issue; after which arose the present competition between. Sir Michael Shaw Stewart, as eldest heir

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It is said that the quæquidem of the charter to Boyd Porterfield sets forth that he had right to the unexecuted procuratory of resignation in the contract of marriage in virtue of his service as heir of line to his grandfather, which rendered the charter inept, as he ought to have taken the charter to himself as heir of tailzie and provision. There can be no doubt of the blunder, which might have been objected to in proper time; but I apprehend that this defect may be and has been wiped away by the positive prescription; for, if the service as heir of line did not give him a title to the unexecuted procuratory of resignation, the charter, granted on the narrative that it did confer a right, is still a prescriptive title; it is surely no worse than a charter granted à non domino, which will be a good title if followed by possession for the prescriptive period. In this way I think that the succession to Porterfield and Hapland devolves to Mr. Corbet in virtue of the order of succession contained in Boyd's charter, passed on the deed 1742.As to Duchal, Sir Michael Shaw Stewart pleads, 1st, That the deed 1742 is not to be considered as one of nomination, in terms of the reserved power to interpose heirs between the heirs of William Porterfield's body and the heirs female of Alexander's own body, but as one of alteration of the order of succession, made in consequence of the reserved faculty to alter; that the alteration was ultra vires of Alexander, in so far as it postponed the succession of William's daughters to the other heirs preferred to them; and, being ultra vires to that extent, is altogether void and null.If this were well founded, there would be an end of the question; Sir Michael must be preferred in this competition. But I cannot assent to the proposition that the deed is ipso facto void and null. I think that it was only reducible at the instance of the party injured by it, if they had existed; and if that party did not choose to challenge it, or if they had chosen to ratify it, I think that it would have made an additional nomination to the destination in the contract 1721. Put the case that Alexander Porterfield the entailer had died, having no children but William; that the latter had no sons, but had left daughters; these

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But, farther, it occurs to me that the deed 1742 has a double character, and was so intended by the granter. Of this there can be no doubt, for he says so himself; he quotes both the reserved powers in the contract, viz. the one to name the heirs who shall succeed on the heirs male and female of William's body and the heirs male of his own, and the other to alter the order and course of succession, as the inductive cause of executing the deed. Now, the only alteration was that which, even according to Sir Michael Stewart, Alexander had no power to make, viz. the postponement of the heirs female of William's body. Let that be laid out of the question, and the rest of the order of succession is truly a nomination or interposition of heirs between the 5th and 7th substitutions; for he called the heirs male of the bodies of his uncle and cousin, and, failing them, his own daughters, before those of his son or grandson. The deed was therefore an alteration improperly done, and a nomination which he had full powers to make, for I think no one can

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Sir Michael pleads that the right of succession conferred by the deed 1742 has been extinguished by the positive and negative prescriptions. But when I consider that a destination in an entail hæredibus nominandis may be created by a separate deed nominating these heirs, I do not think there can be room for prescription till the succession shall open to these heirs. There can be no room for the positive prescription, because the destination “to such heirs as the said Alexander Porterfield shall nominate and appoint” is uniformly repeated in every investiture of the estate; and as Mr. Corbet claimed as soon as the succession opened to him, there can be as little room for the negative as the positive prescription; for it is well observed by Mr. Corbet's counsel, that, when Sir Michael comes to prove his claim to the jury, he must show that all the substitutions in the tailzie have been evacuated prior to that which calls himself; but when he comes to that one of hæredibus nominandis, he cannot show that no heir was named, because the contrary would be distinctly proved by Mr. Corbet. Now, had that substitution been left out of the investitures for the years of prescription, Sir Michael would not have had to encounter it; but being in every investiture, it meets him, and leaves it equally open now to apply the deed of nomination to the substitution, and make it a part of the order of succession, as it would have been at Alexander Porterfield's death if all the prior heirs had then been dead, and to prove by that deed that the heirs named prior to Sir Michael have not failed.On these grounds it appears to me that Mr. Corbet is entitled to claim under the sixth substitution in the contract of marriage 1721, being that hæredibus nominandis, and to complete the substitution by uniting with the tailzie the nomination contained in the deed 1742, and therefore I am of opinion that

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The cause having been put out for advising by the Second Division, Lord Glenlee, who had declined (his daughter being married to Sir Michael's brother), did not vote; Lord Cringletie retained his opinion; Lords Fullerton and Moncrieff, having been counsel in the cause, and having written the cases on which the judgment of the Court proceeded, did not return any opinion; and Lord Justice-Clerk and Lord Pitmilly expressed their entire concurrence in the opinion of the majority of the consulted Judges; and the Court thereon (13th Nov. 1829) * found, “That the respondent James Corbett Porterfield is the person entitled to be served heir of tailzie and provision to the deceased William Porterfield in the lands of Overmains, to the deceased Boyd Porterfield in the superiorities of Porterfield and Hapland, and to the late Alexander Porterfield in the estate of Duchal; therefore adhere to the interlocutor of the 15th of May 1821 appealed from.”Sir Michael Shaw Stewart appealed.Lord Chancellor .—My Lords, this is a case of very considerable importance, whether we consider the large amount of property at stake, the principles of law involved in it, touching the construction of the instruments on which the parties rely for their title, or the length of time during which certain of the parties have been in possession. The case has been argued at great length, with a zeal which the importance of the question at issue might have been expected to excite, and with the ability and learning which your Lordships must have felt sure would be brought to the discussion, from the names of the learned counsel on either side. I had occasion, in the course of last sitting in this house upon the same subject, to fling out an observation during the arguments of learned counsel respecting the great weight as well as number of authorities on the bench of Scotland, whose decisions, when pronounced, had been supported after consideration by your Lordships; and undoubtedly, on a question which is not one of general law, but which regards the particular jurisprudence of that part of the United

Footnote

* 8 Shaw and Dunlop, p. 17.

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Lord Chancellor —My Lords, in this case I had some doubt upon one point, in consequence of the learned and ingenious opinion of

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The House of Lords ordered and adjudged, That the interlocutors complained of be affirmed.Solicitors: Richardson and Connell— Moncrieff, Webster, and Thomson, Solicitors.