Lieut. Gen. Matthew Sharpe Sir John Campbel - Keay. v. Charles Kirkpatrick Sharpe and Others [1835] UKHL 1_SM_594

UKHL
Lieut. Gen. Matthew Sharpe Sir John Campbel - Keay. v. Charles Kirkpatrick Sharpe and Others
[1835] UKHL 1_SM_594 · 1835-04-18
Circumstances in which held (reversing the judgment of the Court of Session) that the syntax of the irritant clause of an entail being defective, from a clerical omission which might by possibility have been supplied by other words than those which the context indicated to have been intended to be inserted, the entail was insufficient to prevent the heir in possession from selling or burdening the lands.Matthew Sharpe Esquire of Hoddom executed a deed of entail on the 6th of July 1748, and another on the 7th of March 1754; but as both of these deeds were revoked, it is not necessary to take farther notice of them. He also made a third entail, dated 1st August 1765, which was not revoked, but it was never recorded or followed by infeftment. That entail was granted in favour of himself, and the heirs male of his body; whom failing, to the heirs female of his body; whom failing, to Charles Kirkpatrick, only son of Mr. William Kirkpatrick of Elliesland, and to the other substitutes therein mentioned. Charles Kirkpatrick, although related to the entailer, was not his heir-at-law. Without adverting particularly to the different clauses in that deed, it is sufficient to state that the destination, the

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“And upon every contravention which may happen, by and through any of my said heirs failing to perform all and each of the said conditions and provisions, and acting contrary to any or all of the restrictions and limitations before written, it is hereby expressly provided and declared, that not only my said lands and estate shall not be burdened with or liable to the debts and deeds, crimes and acts of the heirs of taillie, as before provided, but also all debts, deeds, and acts 1 , contracted, granted, done, or committed, contrary to these conditions and provisions, or restrictions and limitations, or to the true intent and meaning of these presents, shall be of no force, strength, or effect, and ineffectual and unavailable against the other heirs of tailzie, and who, as well as the said estate, shall be noways burdened therewith, but free therefrom, in the same manner as if such debts or deeds had not been contracted or granted, or such acts, omissions, or commissions had never been done or happened.”
In this entail of 1765 there is a reserved power of alteration or of sale in favour of the granter or the heirs of his body; “but declaring that any revocation or

Footnote

1 The words in italics are omitted in the entail 1768.

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On the 19th December 1768 the entailer executed the other deed of entail alluded to, which was duly recorded in the register of tailzies on the 6th Dec. 1769. It proceeds on the narrative that “I Matthew Sharpe of Hoddom, for the better preservation of my family, and continuance of my estate with my relations and heirs of taillie after mentioned, do by these presents, under the conditions, provisions, restrictions and limitations, clauses irritant and resolutive, declarations and reservations, after written, give, grant, and dispone, heritably and irredeemably, to myself and the heirs male of my body, without any restriction, limitation, or condition whatever; whom failing, to the heirs female of my body, the eldest heir female always succeeding without division; whom failing, to Charles Kirkpatrick, only lawful son of Mr. William Kirkpatrick of Elliesland,” and the other substitutes therein enumerated, the estate of Hoddom.The first condition is, that the heirs should bear the name and arms of Sharpe of Hoddom. The next two conditions were, “that the whole heirs hereby called to the succession of my estate shall possess and enjoy the said lands and estate by virtue of this present taillie, infeftments, rights, and conveyances to follow hereupon, and by no other right or title whatsoever:

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After setting forth sundry other conditions the deed prohibits any alteration in the order of succession; and then provides, “That the whole heirs aforesaid are and shall be limited and restrained from selling, alienating, impignorating, or disponing the said lands and estate, or any part thereof, either irredeemably or under reversion, and from burdening the same, in whole or in part, with debts or sums of money, infeftments of annual rent, or any other servitude or burden whatsoever, (excepting only as herein-after mentioned,) and from doing or committing any act civil or criminal, and granting any deed, directly or indirectly, whereby the said lands and estate or any part thereof may be affected, apprised, or adjudged, forfeited, or become escheat or confiscated, or any other manner of way evicted from the said heirs of taillie, or this present taillie or order of succession prejudged, hurt, or changed.”

The deed also contains this restriction:—

said lands and estate shall noways be affected or burdened with, or subjected or liable to be adjudged, apprised, or any other way evicted, either in whole or in part, for or by the debts and deeds contracted or granted by any of the foresaid heirs, whether before or after their succession, nor for or by any act, civil or criminal, committed and done, or to be committed and done, prior or posterior to their suecession.”

“That the

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After setting forth various other restrictions and sundry irritancies, the deed contains a resolutive clause, providing, “That in case any of the heirs aforesaid shall contravene the other conditions, provisions, restrictions, or limitations before or after mentioned, or any of them, that is, shall fail or neglect to implement and perform the said other conditions and provisions, and each of them, or shall act contrary to the other restrictions and limitations, or any of them, that then, and in any of these cases, the person or persons so contravening by failing to obey the said conditions and provisions, or acting contrary to the said restrictions and limitations, or any of them, shall, for him or herself, and the heirs descending of his or her body respectively, ipso facto amit, lose, and forfeit all right, title, and interest which they respectively have or shall have to my said lands, and the same shall become void and extinct, and my said lands and estate shall devolve, accresce, and belong to the next heir of taillie appointed to succeed, in the same manner as if the contravener and the heirs descending of his or her body were all naturally dead.”

Then follows the irritant clause in these words:—

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“And upon every contravention which may happen by and through any of the said heirs failing to perform all and each of the said conditions and provisions, and acting contrary to any or all of the restrictions and limitations before written, it is hereby expressly provided and declared, that not only my said lands and estate shall not be burdened with or liable to the debts and deeds, crimes and acts 1 , contracted, granted, done, or committed contrary to these conditions and provisions, or restrictions and limitations, or to the true intent and meaning of these presents, shall be of no force, strength, or effect, and ineffectual and unavailable against the other heirs of taillie, and who, as well as the said estate, shall be noways burdened therewith, but free therefrom, in the same manner as if such debts or deeds had not been contracted or granted, or such deeds, omissions, or commissions had never been done or happened.”
This deed contains various other clauses, which do not bear upon the present question, and these are followed by this clause of revocation:—in the whole heads, clauses, and contents thereof, and declare the same to be void and null, and of no force or effect, in all time coming, as if the same had never been made or granted.”
“And I, by these presents, revoke and recal all former settlements made and granted by me of and concerning my said lands and estate, or any part thereof, in favour of whatever person or persons, and particularly without prejudice to the said generality, a deed of entail and settlement executed by me, of date the 6th day of July 1748, and another deed of entail and settlement, dated the 7th day of March 1754 years,

Footnote

1 Here the words “of the heirs of taillie as before provided, but also all debts, deeds, and acts” in the entail of 1765 are omitted.

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Besides the landed estate Matthew Sharpe left some moveable property, which by a deed of the same date with the last entail, and two subsequent trust deeds dated 19th May 1769, he conveyed to trustees, for certain purposes, and particularly that the residue should be applied in the purchase of lands as contiguous to Hoddom as could be procured, which were to be entailed in the same way as that estate. These trustees died, and in consequence Mr. Richard Mackenzie, W. S., was appointed by the Court to the office of judicial factor, for executing the purposes of the trust. In the course of his management some lands were purchased and entailed, in compliance with Matthew Sharpe's directions; and he still held a small unappropriated balance in his hands.Matthew Sharpe died without heirs of his body; and the first in succession under the destination was Charles Kirkpatrick, the father of General Sharpe the appellant and of Charles Kirkpatrick Sharpe the respondent. Charles Kirkpatrick Sharpe in February 1770 made up his title as heir of tailzie and provision under the recorded entail of 1768. On his death in 1813 his eldest son, General Sharpe, made up his titles under the same entail, and on that title has ever since been in possession of the estate, including the lands contained in the deed of entail executed by Mr. Mackenzie.

Upon these facts an action of declarator was instituted

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This was resisted by the respondents, who were subsequent heirs of entail. Lord Corehouse on 22d May 1832 pronounced the following interlocutor, and issued the explanatory note attached to it:—
“The Lord Ordinary having considered the revised cases for the parties, productions, and whole process, finds, that the tailzies in question are affected with valid and sufficient irritant and resolutive clauses, and therefore sustains the defences, assoilzies the defenders from the conclusions of the libel, and decerns under certain reservations, but finds no expences due.”
“Note.—That the omission in the irritant clause in this entail is merely clerical appears obvious from the structure of the sentence, which is altogether ungrammatical, in consequence of the nominative in the second member being wanting. It is first declared, that not only the lands shall not be burdened with or liable for the debts and deeds, crimes and acts, contracted, granted, done, or committed in contravention. Here the syntax is interrupted; then follows, “shall be of no force, strength, or effect, and ineffectual and unavailable against the other heirs of tailzie, and who, as well as the said lands, shall be nowise burdened therewith, but free therefrom, in the same manner as if such debts or deeds had not been contracted or granted, or such deeds, omissions, or commissions, had never been done nor happened;” coupling the effect of the relative

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Against this interlocutor a reclaiming note was presented by the appellant; and a counter note was also presented by the respondents in so far as they were found not entitled to expences. The Court (First Division), on 3d July 1832, pronounced this interlocutor:—lordship finds no expences due, and find the pursuer liable to the defender, Charles Kirkpatrick Sharpe esq., in the expences incurred by him, and remit the account thereof to the auditor of court to tax the same and to report.”
“The lords having advised this note, and heard counsel for the parties, adhere to the interlocutor of the Lord Ordinary in so far as his lordship thereby sustains the defences and assoilzies the defenders; but alter the same in so far as his

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General Sharpe appealed. 1

Appellant .—It is essential to every effectual entail, under the statute 1685, chap. 22, that it contain a clause explicitly declaring the acts done in contravention of it to be void and null. No acts or deeds done by an heir of entail can be irritated or annulled by force of the entail unless they are expressly enumerated in the declaration of nullity which is contained in the irritant clause; and consequently no prohibition can, without such enumeration, be rendered effectual to debar the heir in possession from doing or granting the acts or deeds prohibited.The deed of entail executed in 1768 does not contain an effectual irritant clause in terms of the statute; it does not declare the acts of contravention of the heirs of taillie to be null and void. It has been admitted on all hands, that the clause, as it stands in the entail and in the investitures, is absolutely unintelligible, and that, in order to extract from it any meaning whatever, a material change must be made upon its structure, and important words must be supplied.But the principle of construction which is applicable to deeds of entail, is, that they are strictissimi juris.

Footnote

1 S., D., & B. 751.

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It is impossible to say that the words requisite to restore the grammatical construction can be ascertained with certainty. Parties may indulge in plausible conjectures; but still there are many forms of expression by each of which sense might be restored to the passage, and yet its legal effect be infinitely varied. It seems to be thought that all dubiety is removed by the context, and that the four words enumerated there (“debts, deeds, crimes, and acts”) ought to form the nominative in the second branch of the clause. Yet it is quite certain that if even one only of those four words (“debts,” for example,) had been inserted as that nominative it would have been impossible for the Court to have inserted any other word, however apparent the intention of the granter might be deemed; and it is not a little remarkable that not only do the two respondents differ entirely in their ideas regarding the words which are awanting, but when the respondent, Mr. Sharpe, seeks to point out in what way the chasm should be filled up he actually omits one of the four

Footnote

1 Sandford on Entails, Ed. 1822. p. 158. and Ersk. B. 3. tit. 8.

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This case, therefore, is essentially different from those cases in which a clerical error or omission is of such a description that it can be supplied only in one way, and in no other. Such was the case of Munro of Fowlis. There, in a mere phrase of fixed style, certain well-known technical words were omitted. The lands were directed to be resigned “in the hands of my immediate lawful superiors of the same, or of their commissioners having power to receive resignations and to grant new infeftments [for new infeftment 1 ], to be made and granted to me the said Sir Harry Munro, myself, whom failing,” &c. The Lord Ordinary has held, that the present case ought to be regulated by the decision in the case of Fowlis, because it was there as doubtful and uncertain in what way the hiatus was to be supplied, as in the present case. “The lands” (it is remarked by his lordship) “might have been resigned, not for new infeftment, but for a lease or wadset, or some other grant which would not have constituted an effectual taillie.” But the supposition that the resignation could possibly have been made, not for new infeftment, but for any such grant or right as a lease, is altogether and absolutely excluded. Not only is it the invariable purpose and end of resignation in favorem into the hands of a feudal superior that the grant be renewed by infeftment, and not only were the persons to whom resignation might be made as the commissioners of the superior expressly required to

Footnote

1 These three words omitted.

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Respondents .—From the irritant clause, as it stands, it clearly appears, that what in one member of that clause are declared to be “of no force, strength, or effect, and ineffectual and unavailable,” consist of all and each of those very debts and deeds, crimes and acts, which are prohibited in the other clauses of the entail.

Footnote

1 Appellant's Authorities .— Mitchelson v. Atkinson , 15 June 1831, ( 9 S., D., & B. 741); Dick v. Drysdale , 14 Jan. 1812, (F. C.); Elliot v. Pott , 16 March 1814, (F. C.); Robertson Barclay v. Adam , 18 May 1821, ( 1 Shaw's App. Cases, 24); 3 Ersk. B. tit. 8. s. 29.

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The main ground upon which this entail is now attacked, is, that that branch of the irritant clause which contains the above declaration does not set forth that those things which are thus to have no force, strength, or effect, &c., are those debts and deeds, crimes and acts, which are prohibited in the deed. The irritant clause, independent altogether of this member of it, would completely satisfy all that is required by the statute 1685, and consequently would be effectual even although that clause itself did not afford the means of supplying the nominative of this one branch of it. But this irritant clause itself furnishes the materials for supplying this omission. It will be observed that this omission occurs only in that member of the irritant clause in which the deeds of contravention were intended to be declared inept against the heirs of entail themselves. But on the one hand this declaration is immediately preceded by that member of the clause, which declares these deeds of contravention inept against the estate itself; and on the other hand it is immediately followed by another member of the clause declaring the extent to which the heirs personally, as well as the estate itself, were thus to be exempted from the effect of such deeds of contravention; and in both of these the prohibited debts and deeds, crimes and acts, are mentioned in such a manner as shows clearly that they are the very things which, in that part of the irritant clause now under consideration, are declared to be “of no force, strength, or effect, and ineffectual and unavailable,” against the heirs of entail.Thus, in the immediately preceding member of the clause, after stating that this irritancy was to come into operation upon every contravention which might happen

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So, in the immediately following branch of the

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Since the entailer himself has thus afforded the materials for completing the syntax, by what is set forth in the context, and indeed in the other parts

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But the clause (independent altogether of that member of it the syntax of which is defective,) is a complete irritant clause in terms of law, and quite sufficient to satisfy the requirement of the statute 1685. 1Lord Brougham .—My Lords, the question which this appeal has brought before your Lordships is one of great importance for the value of the property which depends upon its decision, but of much greater, in my opinion, in regard to the point of law which it involves. The decree of the Court below sanctions a principle of

Footnote

1 Respondents' Authorities .—Gordon Cumming, 29 July 1761, (Mor. 15,513); Roxburgh Case, June 1827, (Mor. App. to Tailzie, Nos. 13. & 14.); Stobbs, 19 May 1803, (Mor. 15,542); 2 Black. Comm. 379; Bridgm. Jud. 435, s. 22.; Dormer v. Packhurst , ( 3 Atk. 135; 1 Stra. 1105); Bagshaw v. Spencer , ( 2 Atk. 570); Doran v. Ross , ( 3 Bro. C. C. 27); Douglas and Co. v. Glassford , 14 Nov. 1823, (F. C. 2 S. & D. 487); Syme v. Ronaldson Dickson , 27 Feb. 1799, (Mor. 15,473); Munro of Fowlis, 15 Feb. 1826, (4 S. & D. 467; affirmed, 3 W. & S. 344); Newhall, 23 May 1823, (F. C.); Cappledrae, 10 June 1823, (F. C.); Watson v. Blair , 16 Nov. 1831, (10 S., D., & B. 12); Nesbet, 10 June 1823, (2 S. & D. 381).

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The Hoddam entail is framed carefully and artificially by professional men, who plainly well knew the nature of the instrument they were constructing; and it is as regular and full in all its parts as a deed of tailzie can well be, except, perhaps, that the institute is left free from all fetters, which could hardly be intended, as he (the disponee) was only a cousin. After the dispositive and destination clauses, and the usual conditions as to bearing name and arms, possessing under the entail, and so forth, there follow, in distinct order, the prohibitory clauses, against which nothing can be said, and of which the last is to forbid the estate being burdened by or in consequence of any debt, deed, or act, criminal or civil, of the heirs of tailzie, which it proceeds to declare shall not burden or affect the estate, that being, as it were, the form of the prohibition:—
“And with and under the restriction and limitation, as it is hereby expressly conditioned and provided, that the said lands and estate shall in nowise be affected or burdened with, or subjected or liable to be adjudged, apprized, or in any other way evicted, either in whole or in part, for or by the debts or deeds contracted or granted by any of the foresaid heirs, whether before or after their succession, nor for or by any act, civil or criminal, committed and done, or to be committed and done, prior or posterior to their succession.”

Then come the irritant clauses, the first of which is what we

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It remains only that I advert to the authorities, and these need not detain us. No one pretends that any case is directly in point,—that any authority is to be found in the books for the kind of construction by implication here propounded,—while all the general principles, laid down and recognized by the uniform course of decision upon the law of entail, are most repugnant to any such course. The Fowlis case, decided here 1 as well as below, is plainly distinguishable from this. Indeed, except that there was an omission in both deeds, there is no other resemblance between the two tailzies,—the clauses were complete; but in the resignation the entailer directed the lands to be resigned into the hands of the superior, not “for new infeftment,” but “to be made and granted to me and others,” and the Court and your Lordships supplied “for new infeftment.” But first, the “new infeftment” supplied of necessity followed from the resignation expressed, and the new series of heirs specified, beginning with the resigner himself; next, there was literally, and without supplying any thing, enough to accomplish the intent, rejecting only “made” as surplusage. Thus it stood that the lands were resigned into the superior's hands, “to be made and granted” to him and others. Lord Corehouse indeed denies this reading of “granted,” because “made” does not apply he thinks to a grant of lands; it may nowever be read “made over and granted.” Is the supplying “over,” in that case, any thing like supplying the whole thing to be declared null in the present case of Hoddom? However, I take leave to deny that there is

Footnote

1 Munro v. Munro , 25th July 1828, 3 W. & S. 344.

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Lord Denman .—My Lords, I think it proper to say, that having on the first hearing of this case felt doubts, those doubts have been completely removed by the subsequent argument. My noble and learned friend has most fully expressed my opinions; and entirely agreeing

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The House of Lords ordered and adjudged, That the several interlocutors complained of in the said appeal be, and the same are hereby reversed: And it is further ordered, That the said cause be remitted back to the Court of Session in Scotland, to do therein as shall be just and consistent with this judgment.Solicitors: Richardson and Connell— Spotteswoode and Robertson,—Solicitors.