Lord Elibank and his Commissioners - Murray. v. Patrick Murray, Esq. - Sir John Campbel - Smythe. [1835] UKHL 1_SM_1

UKHL
Lord Elibank and his Commissioners - Murray. v. Patrick Murray, Esq. - Sir John Campbel - Smythe.
[1835] UKHL 1_SM_1 · 1835-03-19
Lord Elibank and his Commissioners Appellants—Murray. v. Patrick Murray , Esq., Respondent—Sir John Campbell—Smythe.

[ 19th March 1835 .]

Ld. Corehouse .

Subject_ Entail —

The prohibitory clauses of an entail being directed against the institute and the other heirs of tailzie, but the irritant clause being only directed against the debts and deeds of “the said heirs of tailzie,” without specifying the institute. Held (affirming the judgment of the Court of Session) that it was lawful for the institute to sell.Patrick Lord Elibank, by bond and deed of tailzie dated 9th of November 1776, granted procuratory for resigning all and whole his lands of Simprim, Maegill, and others therein mentioned, in favour of and for new infeftment of the same, to Patrick Murray the respondent, and the heirs male of his body; whom failing, to

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This deed contained, among others, the following prohibitions: —

“That it shall noways be lawful to or in the power of the said Patrick Murray, or of any of the other heirs of taillie and substitutes above named, to innovate, alter, or infringe this present taillie, or the order of succession hereby established, or to be established by any nomination or other writ to be made by us, or to do or grant any other act or deed that may infer any alteration, innovation, or change of the same, directly or indirectly,”
excepting always power to alter the order of succession, so as to exclude heirs forfeited or attainted:
“And with and under this limitation and restriction also, that it shall not be lawful to or in the power of the said Patrick Murray, and our other heirs of taillie above specified, or any of them, to sell, dispone, alienate, burden, dilapidate, or put away the lands and others above written, or any part thereof, either irredeemably or under reversion, or to contract debts, grant bonds, or any other security, or to do any act, civil or criminal, that shall be the ground of any adjudication, eviction, or forfeiture of the aforesaid lands and estates, or any part thereof.”
These prohibitions were fenced with the following irritant and resolutive clauses: —to obey and perform the said conditions and provisions, and every one of them, or by acting contrary to the said restrictions and limitations, or any of them, excepting as is above excepted, that in any of these cases the person so contravening, by failing and omitting to obey the said conditions, or acting contrary to the said limitations, or any of them, shall, for himself only, forfeit, omit, and lose all right, title, and interest to the foresaid lands and estates, in the same manner as if the contravener were naturally dead, and the right thereof shall devolve upon the next heir of taillie,”
“With and under these irritancies following, as it is hereby expressly provided and declared, that if the said Patrick Murray, or any other of the heirs of taillie above specified, shall contravene any of the conditions, provisions, and limitations herein contained, either by failing and neglecting

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&c. — “And it is also hereby expressly provided and declared, that all the debts and deeds of the said heirs of taillie, or either of them, contracted, made, or granted, as well before as after their succession to the aforesaid lands and estates, in contravention of this present taillie, and provisions, conditions, restrictions, and limitations herein contained, and all adjudications or other legal executions or diligences that shall happen to be obtained or used against the fee and property of the said lands and estates, or any part thereof, upon the same, shall not only be void and null, with all that may or shall follow thereon, in so far as they might anyways affect the said lands and estates, but also the heirs of taillie respectively, upon whose debts and deeds such adjudications have proceeded, shall ipso facto forfeit their right and title to the said lands and estates, and the same shall devolve to the next heir of taillie,” &c.On the death of the entailer, in the year 1778, Mr. Murray completed titles, by charter and infeftment, as institute under this deed; and, as he was not an heir

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Mr. Murray being married, and having no heirs male of his body, but only daughters, and having been advised, that in consequence of a defect in the irritant clause, the entail, in so far as regards him personally, was altogether inoperative to create a limitation in his right; and that whatever might be its effect as against the substitutes, it contained nothing to prevent him from selling or otherwise disposing of the whole or any part of the lands to which it refers, as freely, in all respects, as if he were the fee-simple proprietor, caused the lands to be advertized in the year 1832, to be sold by public auction within the Royal Exchange Coffee House of Edinburgh, and gave intimation thereof to the agent of the Right Honorable Alexander Lord Elibank, the grand nephew of the entailer, and the next heir substitute of entail failing the heirs male of his, Mr. Murray's, own body, of his intention to sell the lands as soon as he could find a purchaser, and that he was actually in treaty for the sale of them. His intentions to do so were no sooner made known, than he was met by a declarator of irritancy, at the instance of Alexander Lord Elibank, concluding to have it found and declared, “that the defender is, by the foresaid deed of entail, specially prohibited from selling the lands and estates before mentioned, or any part thereof, and is legally debarred from selling the same, or granting any obligation, missive disposition, or other deed of sale, or any deed or right, in whatever form the same may be conceived, whereby the said lands and estates

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Mr. Murray founded his defences to this action on the defective nature of the irritant clause: and pleaded, that the irritant clause applies only to the debts and deeds of the heirs of taillie, and he is not one of the heirs, but the institute in the entail,—the lands being conveyed to him directly, and not as substitute to any other person; and further, that the irritant clause does not apply to any disposition or deed of alienation of the entailed estate, but only to debts and deeds of that

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Before this action came to be disposed of, Mr. Murray, having completed a transaction for the sale of the whole of the entailed lands, raised a counter action of declarator against Lord Elibank, and the other substitute heirs of entail; in which, on the ground of the defects in the irritant clause, as set forth in his defences to the previous action at his Lordship's instance against him, he concluded to have it found and declared, not only that he had full and undoubted right and power effectually to sell and alienate the several lands and others contained in the before-mentioned bond of taillie, to any person or persons, in any way he may think proper, for a price, or other onerous consideration, and to grant and execute all deeds and writings whatsoever, which may be requisite and necessary for effectually conveying the lands so sold to such person or persons purchasing the same; but also, “that, upon selling or alienating the whole or any part or parts of the said several lands and others, the pursuer will have the sole and exclusive right to the said price or prices, or other consideration, and will have power to grant a valid and sufficient discharge for the same to the purchaser or purchasers; that the said price or prices, or other consideration, will become the pursuer's absolute property; that he will have full power to use and dispose of the same at pleasure; and that he will not lie under any obligation to invest, employ, or lay out the same, or any part

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Upon advising the closed record and mutual case, Lord Corehouse, Ordinary, reported them to the Court, and issued this note: —
“The Lord Ordinary reports this case, not on account of any doubt which he entertains on the point at issue, but because it is of importance to the parties that it should be speedily determined by the Court whether Mr. Murray, the institute in possession, is in a situation to give a valid title to the person who has agreed to purchase the estate.”
The Trustees of the late Earl of Strathmore, and the late Sir John Marjoribanks of Lees, Bart., the parties to whom the estates of Simprim and Maegill were sold by the respondent, had in the meantime raised actions of suspension in the Court of Session of threatened charges for payment of the price of their respective purchases;

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On the 2d of July 1833, their Lordships of the First Division pronounced this interlocutor:—the letters orderly proceeded, and decern; find no expences due to any of the parties.” 1
“Having considered the record and revised cases for the parties in the conjoined actions of declarator at the instance of Lord Elibank and Commissioners against Patrick Murray of Simprim, and at the instance of the said Patrick Murray against the said Lord Elibank and others, and having also considered the records in the actions of suspension at the instance of the trustees of the late Earl of Strathmore, and the trustees of the late Sir John Marjoribanks, against the said Patrick Murray, also reported by the Lord Ordinary, of consent conjoin all these processes, and in the conjoined actions of declarator and suspension, find that the entail of the estates of Simprim and Maegill does not contain any irritant clause applicable to the debts and deeds of the said Patrick Murray, as the institute in the said entail; and that the sales made by the said Patrick Murray of the lands contained in the said entail are valid and effectual; and in respect of the said defect in the entail, find in terms of the conclusions of the libel at the instance of the said Patrick Murray, and decern and declare accordingly; assoilzie the said Patrick Murray, defender, from the whole conclusions of the libel at the instance of the said Lord Elibank, and decern; repel the reasons of suspension stated for the said Lord Strathmore's trustees, and for the said Sir John Marjoribanks' trustees; find

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Against this interlocutor, in which the whole Court were unanimously agreed, Lord Elibank appealed. The trustees of the Earl of Strathmore and the trustees of the late Sir John Marjoribanks, and who were the purchasers, also appealed.Appellants .—According to the terms of the statute and the language generally used in deeds of entail, the term “heirs” is applicable to all members of tailzie, without distinction between the institute and substitute, and there is no reason to hold, from any part of the deed of entail in question, that the tailzier meant to make any distinction between Patrick Murray and the other members of tailzie, by exempting him from the limitations imposed on the others; there are many deeds of entail on record where the expression is “John such a one (the institute), and the other heirs of entail.”A deed of entail need not be drawn up in any particular technical words or form in order to render it effectual; provided the requisite clauses are inserted, and are sufficiently distinct to convey his meaning, the entailer may adopt any order and any form of words he chooses. Whatever may be the sense in which the term “heirs” is in the general case to be construed, it will be sufficient to comprehend the institute, if either by a special clause, de interpretatione verborum, it is declared to be used by the entailer to signify the institute as well as those called after him to the succession, or if this is

Footnote

1 11 Shaw, Dunlop, and Bell, 858.

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The principles on which the Court of Session has always acted, are stated by the Bench in the case of Douglas v. Glassford , 14th November 1823, and, in conformity with them, subsequent cases have been disposed of. The words used by their Lordships are:
“no doubt entails are strictissimi juris; that doctrine is founded on common law and common sense; but it has also its limits in common sense,—you cannot hold words pro non scriptis. The statute lays down no verba solemnia with which to express the entailer's intention; I may use any words that I choose, if they are but intelligible and unequivocal. If the meaning can be understood, it will be given effect to, and the Court will not inquire whether it might or might not have been better expressed.”

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By the manner in which the word “heirs” is used in the entail of the estates of Simprim and Maegill, and the whole frame and structure of the deed, it is rendered clear beyond all doubt, and is substantially declared, that the maker of the entail used it for the purpose of designating, and understood that it would designate, not only the heirs of entail substituted and called to the succession after the respondent, Patrick Murray the institute, but also Patrick Murray himself; and the construing it so as not to include Patrick Murray would be to resort to an interpretation by implication, while the not putting that meaning upon it would frustrate the will of the entailer by allowing what may be the technical meaning of the word to overrule the entailer's meaning of it, which is not warranted by any principle of construction hitherto applied to deeds of entail.It appears unequivocally and emphatically proved that by the word “heirs” the entailer meant to designate and did designate Patrick Murray the institute, as well as the substitutes in the entail; and that, in particular, he used it in that sense in declaring an irritancy of all the debts and deeds of the said heirs of tailzie or either of them, contracted, made, or granted in contravention of or against the prohibitions or conditions of the entail; as if it had been specially set forth in a substantive clause or provision, that the entailer had, under the word “heirs,” included or was to include the institute as well as the substitute heirs, and that it was to be received in that sense.The peculiar frame of the deed, and the manner in which the different classes of its provisions are introduced

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The entailer's meaning of the word “heirs” is therefore rendered quite clear and unequivocal. He has, by the terms of the deed, supplied as clear and express a translation of it as if there had been a substantive clause declaring the sense in which he used it, and required that it should be understood; and consequently, in construing the entail in question, the word “heirs” in the irritant clause must be taken as including the institute,

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Respondent. 2 —The respondent being the institute in possession under an entail containing no irritant clause applicable to his debts and deeds, has, notwithstanding the prohibitions, full right to sell the entailed lands, and power to confer a valid title on an onerous purchaser.The provisions of the irritant clause in this entail are directed exclusively against the debts and deeds “of the said heirs of tailzie, or either of them,” and contain no declaration whatever applicable to the respondent, who is the institute and nominatim disponee, and who therefore, as far as that deed is concerned, must be held to stand precisely in the same situation as a party in possession under an entail, which from a total want of an irritant clause has not the protection of the statute of 1685; for it may now be assumed, as a point of settled law, that the restraints imposed upon heirs of entail cannot be extended by implication so as to affect the institute, if he be not expressly fettered. This rule is founded on a very obvious principle, derived from a consideration of the difference between the character of an institute and of an heir. The institute is not in a

Footnote

1 Appellant's Authorities .—4 Stair, 183, (Leslie, Elch. Taillie, No. 49.); Edmonstone of Duntreath, 24 Nov. 1769, (Mor. 4409); Wellwood, 23 Feb. 1791, (Mor. 15,463); Baillie, 11 July 1734, (Mor. 15,500); Kemp, 28 Jan. 1779, (Mor. 15,528); Elch. Notes on Stair, p. 114; 3 Ersk. 8, 26; Dick v. Drysdale , 14 Jan. 1812, (F. C.); Barclay v. Adam , 18 May 1821, (1 Shaw's App. Cases, p. 24; 2 Mackenzie on the Statutes, p. 484, Fol. Ed. 1722); Morehead v. Morehead , 2 July 1833, reversed in the House of Lords, 31 March 1835; vide next case.2 The House did not call on the respondent's counsel. The following argument is taken from his appeal case.

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Upon the authority of the late decisions in the cases of Tillicoultry 1 and Ascog 2 , where it was laid down, in the broadest and most unqualified manner, that, if an entail does not contain proper irritant and resolutive clauses in terms of the act 1685, the substitutes have no redress against the onerous deeds of the party in possession, the respondent having sold the entailed estate, has now the exclusive and uncontrolled right to the purchase

Footnote

1 Bruce v. Bruce , 15 Jan. 1799, (Mor. 15,539).2 Stewart v. Fullarton , 23 Feb. 1827, 3 Shaw & Dunlop, p. 418, and p. 396, new edit.; reversed in House of Lords, 16th July 1830, 4 Wilson & Shaw, p. 196.

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A general principle of law is established by the above decisions, depending upon no specialty in the circumstances of each individual case, but universally applicable in every instance where the prohibitions cannot be enforced from a want of any of the statutory requisites. 1

Lord Brougham : — My Lords, I think this case is so plain that there is no necessity for calling upon the learned counsel for the respondent. It differs from a number of other cases decided in Scotland in one respect, and one only. I am not aware that in any former case there has arisen a controversy respecting the omission of words sufficient to fetter the institute in one of the restrictive clauses, namely, the irritant clause, — his name, or a direct reference to

Footnote

1 Respondent's Authorities .— 3 Ersk. 8, 31; Edmonstone of Duntreath, 24 Nov. 1769, (Mor. 4409); Leslie v. Leslie , 1752, (Elch. Taillie, No. 49); Erskines v. Hay Balfour , 14 Feb. 1758, (Mor. 4406); Gordon v. Lindsay Hay , &c., 8 July 1776, (Mor. App. Taillie, No. 2.); Menzies v. Menzies , 25 June 1785, (Mor. 15,436); Millwood v. Millwood , &c., 23 Feb. 1791, (Bell's Cases, p. 191, Mor. 15,463); Marchioness of Titchfield v. Cuming , 22 May 1798, (Mor. 15,467); Miller v. Cathcart , 12 Feb. 1799, (Mor. 15,471); Steel v. Steel , 12 May 1814, (F. C. and Dow's Reports, vol. v. p. 62); Douglas and Co. v. Glassford ; 14 May 1823, (House of Lords, 10 June 1825, 1 W. & S.); Syme v. Dickson , 27 Feb. 1799, (Mor. 15,473); Bruce v. Bruce , 15 Jan. 1799, (Mor. 15,539); Earl of Breadalbane v. Campbell , 1812.

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Footnote

1 Edmonstone, 24 Nov. 1769, (Mor. 4409.)2 Douglas and Co., 10 June 1825, 1 Wilson & Shaw, 323.3 Leslie, (No. 49, Elch. Taillie.)

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Now, this being the law to be gathered from the

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“With and under these irritances following, as it is hereby expressly provided and declared, that if the said Patrick Murray, or any other of the heirs of taillie above specified, shall contravene any of the conditions, and so on, he shall forfeit, and so on.”
That it is admitted is sufficient to forfeit heirs; but then there follow these words in that which may be called the irritant clause, “and it is also.” Now that is beyond something done before ex vi termini, that is, going forward and adding another clause to the clause already expressed,— “and it is also hereby expressly provided and declared.”Then comes a complete clause, not a member or part of a clause, but a complete irritant clause, which proceeds, after having put what acts being done shall be in contravention,— “that all the debts and deeds of the said heirs of taillie, or either of them, contracted, made, or granted, as well before as after their succession to the

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And then comes a special clause, which contains both forfeiture and irritancy:
“But also the heirs of taillie respectively, upon whose debts and deeds such adjudications shall have proceeded, shall, ipso facto, forfeit their right and title to the said lands and estates, and the same shall devolve to the next heir of taillie in like manner as if the contravener were naturally dead, and that freed and disburdened of the said debts and deeds, and adjudications, and other diligences deduced thereon.”
Now, my Lords, I am clearly of opinion, that we should shake the cases which have been decided on the principle to which I have adverted in all their fair reasonable meaning, and depart from the rule supported by those cases, if we found this was any thing like a specific fettering of the institute or fiar, for the words are “the said heirs of taillie.” “Said” refers to the heirs of taillie who have been before mentioned; and as the first part of this clause only says, “that all the debts and deeds of the said heirs of taillie, or either of them, contracted,”— “in contravention of this present taillie, and all adjudications upon the same shall be null and void, with all that may follow thereon,”

that is not sufficient, as is

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That is nonsense, unless you take in those words to which the words “so contravening” apply. The appellants' counsel ingeniously attempted to show, that in this case there is, first, a complete resolutive clause, and next, a complete irritant clause; but then, it does not affect this institute, for it does not say the heir of entail or person so contravening. The present case would have been like the Dougalston case, had it been thus: If the said Patrick Murray, or any of the said heirs of taillie, shall contravene so and so, not only such person or heir so contravening shall forfeit, but also the deeds of such and every such person or heir shall be void. If that had been so, it would have been like the Dougalston case; and if you refer to the Dougalston case to show that such would have been a sufficient designation of the institute, the short answer is, that he is referred to by the words which are employed. I by no means intend to say, that the word “person,” if it had occurred in the separate clause, might not have referred

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The following judgment was pronounced in the appeal for Lord Elibank and his commissioners:It is ordered and adjudged, by the Lords Spiritual and Temporal, in Parliament assembled, “That the said petition and appeal be, and is hereby dismissed this House, and that the interlocutor therein complained of, be, and the same is hereby affirmed: And it is further ordered, That the appellants do pay or cause to be paid to the said respondent the sum of 100 l . for his costs in respect of the said appeal.”

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And in the appeal for the purchasers (to which no answers were lodged for the respondent):It is ordered and adjudged, by the Lords Spiritual and Temporal, in Parliament assembled, “That the said petition and appeal be, and is hereby dismissed this House, and that the said interlocutor therein complained of, be, and the same is hereby affirmed.”Solicitors: Alexander Mundell, Spotteswoode and Robertson— Richardson and Connell,—Solicitors.