William Morehead - Lushington. v. The Rev. Dr. Robert Morehead, and Others - Sir John Campbel - S. A. Murray. [1835] UKHL 1_SM_29

UKHL
William Morehead - Lushington. v. The Rev. Dr. Robert Morehead, and Others - Sir John Campbel - S. A. Murray.
[1835] UKHL 1_SM_29 · 1835-03-31
William Morehead , Appellant—Lushington. v. The Rev. Dr. Robert Morehead , and Others Respondents—Sir John Campbell—S. A. Murray.

[ 31st March 1835 .]

Lord Fullerton .

Subject_ Entail. —

An entailer in his deed of entail, by a clause immediately following the destination, declared that the burthens, reservations, conditions, provisions, restrictions, limitations, and clauses irritant therein-after expressed should be binding on the institute as well as the substitutes; and the prohibitory clauses against selling, burthening, or altering the order of succession were directed against the institute as well as the substitutes; but certain other prohibitory clauses and the whole of the irritant and resolutive clauses were directed against the “heirs of tailzie” only, without mentioning the institute. Held (reversing the decision of the Court of Session) that the entail was ineffectual to prevent the institute from selling the lands and disposing of the price at pleasure.In the year 1786, William Morehead, Esq., of Herbertshire, (father of the appellant,) executed a deed of entail of the lands and barony of Herbertshire in favour of the appellant (the institute), and a certain series of heirs. Immediately after the destination to the institute and whole heirs of entail, and immediately preceding the various prohibitory, irritant, and resolutive clauses, there was a clause in these terms:—and clauses irritant after expressed, which are all hereby appointed to be inserted in the resignations, charters, and infeftments to follow hereon, and declared to be binding, not only upon the said William Morehead, my eldest son, and the heirs male of his body, and the other heirs substitute to them by this present tailzie, but also upon my heirs whatsoever, in case the succession of my said estate shall happen to devolve upon them, failing the heirs of tailzie above mentioned.”
“But always with and under the express burdens, reservations, conditions, provisions, restrictions, limitations,

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The deed of entail then contained prohibitions against selling, burthening, and altering the order of succession, which were made expressly applicable to the institute by name and “the other heirs of tailzie.” It contained also certain other prohibitions directed only against “the heirs of tailzie above mentioned.” The irritant and resolutive clauses were in like manner directed only against the “said heirs of tailzie above mentioned.”The appellant succeeded to the lands, and made up titles under the entail; and in the month of June 1832 he entered into a minute of sale with his brother, the respondent, by which the appellant, on the one hand, sold to the respondent his estate of Herbertshire, and, on the other hand, the respondent became bound to pay to the appellant the price of 40,000 l . sterling, by certain instalments, of which the first instalment, being the sum of 2,000 l ., became due at Lammas 1832.In order to ascertain whether the appellant had power to sell the estate, the respondent, instead of making payment of the first instalment at the stipulated term, presented a bill of suspension of a threatened charge,

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The bill of suspension was passed, and the appellant instituted an action of declarator, directed against all the substitute heirs called to the succession by the deed of entail, and concluding that it should be found that the appellant had right to sell the lands.These two actions were afterwards conjoined, and the Lord Ordinary (Fullerton) reported them on cases to the First Division of the Court, and issued the following note:—
“The Lord Ordinary has pronounced the above order, as the course best calculated for expediting the decision of the cause. But, having considered the cases for the parties, he may be permitted to express his opinion, that the pursuer and respondent is entitled to judgment in his favour.
In the first place, it is undeniable that the substantive and express irritant and resolutive clauses of the entail are limited to the heirs of tailzie, and do not affect the institute; and therefore, even if the general clause founded on by the defenders clearly expressed an intention to control and extend against the institute the specific provisions and restrictions, I

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But, secondly, the case of the defenders and suspender here is much weaker than that just supposed; the general clause in question, in so far as it can be construed as extending the effect of the specific provisions, clearly does not apply to the institute, but to the heirs whatsoever. The declaration, that resignation is ‘made under the burdens and conditions after expressed,’ &c., ‘which are hereby appointed to be inserted in the resignations,’ &c., and declared to be ‘binding, not only upon the said William Morehead, my eldest son, and the heirs of tailzie,’ but on the heirs whatsoever,—cannot, according to fair construction, and still less according to the strict construction, applicable to entails, receive any interpretation, but that the provisions, restrictions, &c. ‘after expressed’ are to be binding on William Morehead, and the heirs of tailzie respectively, according to the terms in which they are expressed, namely, those including William Morehead, to be binding against him, and those directed only against the heirs of tailzie, to be binding only on those heirs of tailzie. The terms of the declaration, even in the most favourable point of view for the defenders, could do no more than raise a presumption that the entailer

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It is hardly necessary to add, that in regard to the second entail, framed in compliance with the statute, the same principle must apply, as the statute did no more than merely provide for the secure operation, against the institute, of all the provisions and restrictions to which he was subjected by the conditions and restrictions of the original entail.”

The Court, on the 2d July 1833, pronounced the following interlocutor:—

“The Lords having advised this cause, and heard counsel for the parties in the process of declarator, sustain the defences, assoilzie the defenders, and decern; and in the suspension suspend the charge simpliciter, and decern.” 1

Footnote

1 11 S., D., & B., 863. The following notes of the opinions delivered in the Court of Session were laid before the House:—Lord Balgray .—“The parties here are highly respectable, and the action, I feel assured, would not have been brought but for some proper and important object. I wish that we could come to the same result here as in the last case, which we have just now decided, (case of Elibank v. Murray .) But, my Lords, we must take the case as it stands, and try it upon its own peculiar merits. By the Act 1685, every entailer may express his own deed of entail in any way. There are no technical clauses which are required to be taken in a certain order, or any express form of words in which the clauses are to be expressed. The entailer may write his own entail, and use his own language. We must look to the intention. It is necessary to consider what is clear in point of intention; and for that purpose we must take the whole deed together. It may be read as a single sentence. The entailer, if I may say so, may begin at the end, and his object will be attained, if he only comply with the provisions of the act, by inserting clauses to the effect which the act authorizes and requires, without regard to any set form of words. The whole dubiety in the case rests upon this, that in some clauses the institute is bound, and that in others the institute is not bound. But

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Against the above interlocutor William Morehead appealed.Appellant .—The irritant and resolutive clauses, of which the proper operation is to make the prohibitions effectual, do not reach or affect the appellant, who is the institute of entail. This proposition is undeniable, and has been so enounced by the Lord Ordinary; neither is it possible to question it either with reference to acknowledged rules of legal construction, or to the application which these rules have received through a long series and a great variety of cases. Entails are strictissimi

Footnote

then in this dubiety I refer to the clause which follows immediately after the destination. It is a general and comprehensive clause, in which the entailer declares, that the whole “burdens, reservations, conditions, restrictions, limitations, and clauses irritant after expressed, which are all hereby appointed to be inserted in the resignations, charters, and infeftments to follow hereupon,” shall be “binding, not only upon the said William Morehead, my eldest son, and the heirs male of his body, and the other heirs substitute to them by this present tailzie, but also uponmy heirs whatsoever, in case the succession of my said estate shall happen to devolve upon them, failing the heirs of tailzie above mentioned.” Now, I think that this is a general declaration affecting all the parties called to the succession, the institute as well as the substitutes, and that the declaration is put in at the proper place of the deed. The only difficulty in the case lies here, that in the different prohibitory clauses some of the. prohibitions are made effectual against the institute, and others are not. But I am afraid that this will not do; that it will not entitle us to refuse effect to the entail,—we are bound to look to the entailer's intention,—we must give effect to his words in the way which he has used them. And as the provisions of the entail are expressed in broad and general terms, and are comprehensive enough to embrace all the parties called to the succession, I am, on this general ground, and without entering into particulars, for supporting the entail.”Lord Craigie .— “The declaration of the entailer is quite general in its terms. It clearly applies to all the different parties called to the succession. The entail must therefore stand.”

Lord Gillies .— “I am of the same opinion.”

Lord President .— “I agree. We suspend the letters and sustain the defences”

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It is impossible to contend that the general clause, on which the respondents found, can extend the prohibitory,

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In no view of the case can the general clause referred to be considered effectual to make the fetters of entail attach to the appellant as institute; for that clause refers to the irritant clause only, and not to the resolutive clause, which last, equally with the irritant clause, is essential to the validity of the entail. Unless the three clauses concur there is no effectual entail, and a want or imperfection in the resolutive clause, as was found in the case of Tillicoultry, is just as fatal to the validity of the entail as the want of an irritant clause or defect in the prohibitions. 1

Footnote

1 Appellant's Authorities .— Erskine, 14 Feb. 1758; Edmonstone of Duntreath, 24 Nov. 1769, (Mor. 4409); Gordon and Lindsay, 8 July

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Respondents .—No verba solemnia are requisite in entails, nor is any given arrangement of the clauses essential; it is enough that there are sufficient prohibitions duly fortified by irritant and resolutive clauses. It is admitted by the appellant that these clauses in this deed are sufficient in themselves, and affect the heirs of entail, and the only question raised is, whether they apply to the institute. But immediately before introducing these clauses, the entailer makes an express provision, declaring each and all of them to be binding, not only upon the said William Morehead (the institute), but also on other parties; no room therefore is left to argue as to any ulterior intention in framing this general clause. Apparently the entailer had designed to extend the fetters to his heirs whatsoever; but whatever else he had intended, the act of applying the whole prohibitory, irritant, and resolutive clauses to the institute is what he has expressly performed, and this entail is, therefore, effectual against the appellant, who is the institute. The present is distinguishable from the Duntreath and other similar cases relied upon by the appellant, in which the institute was held not to be bound, (notwithstanding the plainest implied intention to the contrary,) in this respect, that in the present there is a great deal

Footnote

1776, (Mor. 15,462); Menzies v. Menzies , 25 June 1785, (Mor. 15,436); Sandford on Entails, 141—143; Miller v. Cathcart , 12 Feb. 1799, (Mor. 15,471); Steel v. Steel , 12 May 1814, affirmed in House of Lords 24 June 1817, (F. C. and Dow's Reports, vol. v. p. 62); and see preceding case of Elibank v. Murray ; Dick v. Drysdale , 14 Jan. 1812, (F. C.); Bruce v. Bruce , 15 Jan. 1799, (Mor. 15,539); Barclay v. Adams , 18 May 1821, (1 Shaw's Appeal Cases, p. 24); Hope Vere v. Hope , 12 Feb. 1828, (6 S. & D.); Sandford on Entails, 141.

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“But always with and under the express burdens, reservations, conditions, provisions, restrictions, limitations, and clauses irritant after expressed, which are all hereby appointed to be inserted in the resignations, charters, and infeftments to follow hereon, and declared to be binding, not only upon the said William Morehead, my eldest son, and the heirs male of his body, and the other heirs substitute to them by this present tailzie, but also upon my heirs whatsoever, in case the succession of my said estate shall happen to devolve upon them, failing the heirs of tailzie above mentioned.”
The appellant contends for a rule of construction which has been otherwise rejected as applicable to deeds of entail, viz. to construe according to implied intention rather than according to the words actually made use of; because, whatever was the intention, the words of the clause certainly declare the restrictions, &c. to be binding “upon the said William Morehead,” as well as upon the other parties mentioned. With respect to intention it is plain that it was one of the express objects of this clause to bind the institute. The framer of the deed probably knew that in going through the details of the different prohibitory, irritant, and resolutive clauses there might be occasional oversights as to the institute, (which practice has shown so often to

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The expressions “not only upon the said William Morehead, &c., but also upon my heirs whatsoever,” must be read in the same way as if they had stood— “both upon the said William Morehead, &c., and also upon my heirs whatsoever.”It cannot be successfully contended that there is an absolute impossibility, from mere priority of place, to frame a preliminary declaration in such a form as to control or extend the subsequent irritant and resolutive clauses in the manner contended for. The question might indeed be different, if these subsequent clauses contained any positive provision directly in the face of such preliminary declaration; and where there was no other means of getting rid of the difficulty, the maxim posteriora derogant prioribus might certainly apply But, in the present case, the subsequent clauses contain no positive provision in the face of the previous preliminary declaration; there is nothing irreconcileable betwixt them. At the very most, the strict legal interpretation of the terms made use of in framing the subsequent clauses is not of itself sufficient to include all the parties to whom that previous preliminary declaration had declared they should be applicable. Neither could a preliminary declaration of this description ever be

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Lord Brougham .—This case comes before your Lordships by appeal from the First Division of the Court of Session, sustaining the defences and assoilzing the defender in an action of declarator brought by the appellant and pursuer, and suspending the charge simpliciter in the suspension brought by the respondents. The action of declarator was brought to have the rights of Mr. Morehead the appellant declared to sell or alienate the estates comprehended in a deed of entail of the estate of Herbertshire, executed by his father in November 1786, and in which he was made institute or disponee. The suspension was brought by the respondents, purchasers of those estates, on the ground that the appellant, in consequence of the entail, could not make a good title to them. The two actions were conjoined, and indeed they wholly turn upon the same question, viz. whether or not the institute

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1. The entailer dispones to the appellant, William Morehead, and of course the institute; he then gives to William Morehead's heirs male of his body, and a variety of other substitutes, and lastly to his own heirs and assignees whatsoever, the eldest heir female taking

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Footnote

1 Earl of March v. Sir T. Kennedy , 27 Feb. 1760, (Mor. 15,412.)

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This only serves to show that circumstances are wanting here, which in other cases have been dwelt upon, though without success, as evincing the entailer's meaning; whatever he meant goes for nothing, unless he validly executed his intention. I have already said, that it is

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II. A reference to the authorities confirms the view which I have taken of this case, while I do not think it possible to maintain the decision of the Court below, if those former resolutions are law. In the Findrassie case, Leslie v. Leslie 1 , there were some strong circumstances to bring the institute within the fetters as a preliminary declaration, before the destination, that the object of the deed was to call the heirs of the maker's body and heirs of tailzie, with and upon the provisions, faculties, restrictions, and irritancies “after specified,” the eldest son being the institute; and the institute had in fact obtained, without dispute, the possession of the personal estate under a gift, in which he was only described as heir of tailzie; yet no mention of him occurring in the restrictive clauses, he was held unfettered. Erskine v. Balfour Hay (the Randieston case) 2 is not marked by any peculiarity, and only merits notice as wholly irreconcileable with the decision in the Court below on the Duntreath case, and as showing that your Lordships, under the advice of the illustrious judge who then advised you in judicial matters, laid down no new rule, and stretched no old one, when you reversed that decree. Indeed, the Findrassie case was stronger, and the Randieston case as strong as the Duntreath. 3 The Duntreath case, however, deserves some further consideration, with a view to the present. I conceive that it is calculated to give a very useful light for guiding us here; and that circumstances fully stronger

Footnote

1 5th Dec. 1752. Elchies, No. 49, voce Tailzie.2 14th Feb. 1758. Mor. 4406.3 Edmonstone v. Edmonstone , 24th Nov. 1769. Mor. 4409.

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Every person and heir male and female who should succeed was to take the name and arms; the said heirs and members of tailzie were to possess only under this title; none of the said heirs were to alter the order of succession, or lease for more than nineteen years; the said heirs and members of tailzie were forbidden to sell; the whole heirs and members of tailzie aforesaid were to perform all that was

Footnote

1 Mor. 15,466.2 Mor. 15,463.3 Ante, p. 1.4 12 May 1814, (F. C.)5 27 June 1817. 5 Dow, 73.

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Footnote

1 Mor. 15,471.2 27 Feb. 1799. Mor. 15,473.

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III. I have only now, in closing my argument, to take notice of the reasons given by the learned judges in the Court below, and I regret that we find so scanty a report of them. I can gather Lord Fullerton's view of the argument, which, though short and general, does not very materially differ from my own; but the reasons which conducted Lord Balgray and his learned brethren to their conclusions I nowhere can find. There appears to be an argument in what Lord Balgray is made to state, but when looked at it turns out to be merely the announcement of a conclusion—an opinion,—an opinion certainly entitled to the greatest deference, but not sufficient to support itself, when, being appealed from, the whole question in the Court above is, whether that opinion was well or ill founded; and we are compelled to inquire, not what the learned judges below thought and decided, but upon what grounds they did so. With all that Lord Balgray lays down in general terms as to the law of entail I go along. That an entail is not a technical deed,—that any one may make his own tailzie without professional aid,—that he may bind his successors in his own words

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“By this clause the entailer appears to me to apply each and all of the clauses expressly to the institute as well as to the substitute;”
but this is not giving a reason, it is only giving an answer to the question. The question is, has the general clause imposed the fetters; and if it has, why do you hold that opinion? And Lord Balgray answers, “It has imponed the fetters,” and gives no reason why he holds it to have done so. He adds, indeed, that a cause of hesitation with him is the insertion of the institute's name in some of the restrictive clauses, and not in

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The House of Lords accordingly ordered and adjudged, “That the interlocutor complained of in the said appeal be, and the same is hereby reversed: And it is further ordered,

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Solicitors: S. B. Jackson— Richardson and Connell,—Solicitors.