James Renton v. Philip Anstruther, Esq., and Others [1843] UKHL 2

UKHL
James Renton v. Philip Anstruther, Esq., and Others
[1843] UKHL 2
A procuratory of resignation, executed by a party uninfeft, having right to a previous unexecuted procuratory made by a party infeft, coupled with obligation to infeft, and an assignation to writs and evidents, rights, titles, and securities, will operate an effectual conveyance of the lands to be resigned under all the the conditions; and if the procuratory be made upon conditions fenced with the usual clauses, it will form an effectual tailzied conveyance.This case was heard at great length in the year 1842, and for the reasons which will be found in 1 Bell, 129, was remitted to the Court of Session for the opinion of the whole Judges of that Court. These opinions, which have not been reported elsewhere, were delivered in the following terms:—
“After hearing the cause very fully argued on the remit from the House of Lords, we are of opinion, that the judgment of the Second Division of this Court, now under appeal, was well founded in the principles and authorities of the law of Scotland; and is such as we should have held ourselves bound to pronounce, if the case had been originally before us.
From the course and tenor of this last argument, we observe that the matters in dispute between the parties have been considerably narrowed since the cause was formerly discussed and decided in this Court; and that the only propositions on which the appellant now insists are the two following:— “ First First , That the deed of 1810 is ineffectual, as not containing any proper conveyance of the right to the lands, which is

Page: 215 ↓

Now, with reference to this first point, we think it material to observe, that it is now fully admitted by the appellant, and, we think, necessarily and properly admitted —First First , That a party uninfeft, and having only such a personal title to lands as was confessedly in Sir Alexander Anstruther in this case, under his sister's disposition of 1808, may yet make an effectual entail of such lands.Second Second , That, for this purpose, it is not necessary, nor even perhaps strictly proper or correct, that he should use dispositive words, or in any way profess directly to convey or make over the property of the lands themselves; and that it is perfectly sufficient, if he assign and convey, in any habile manner, his own personal right to them; together with such writs and documents as may enable the assignee to make it real. And,Third Third , That an unexecuted procuratory of resignation is, in its own nature, an assignable instrument; and may be as effectually carried by a general assignation of writs, titles, and evidents, (where there is nothing in the deed containing it to exclude such a construction,) as if specifically mentioned or described.Holding all these points, as we do, to be in themselves indisputable, and seeing that they are no longer questioned by the appellant, his argument upon the first and leading branch of the case comes shortly to this: —The deed 1810, he observes, has four separate parts, —1 st st , An obligation to

Page: 216 ↓

We hold the whole of this argument to be fallacious, both in its premises and its conclusion. But, in order to clear the grounds of this opinion, we think it right, in the first place, to say a word or two on what we conceive to have been the true import and amount of the decisions now referred to, and particularly those in the cases of Don and of Hamilton, on which the appellant chiefly relies.What was settled then by these two decisions we apprehend was this, and no more, —that where, in a regular deed of conveyance by a person infeft, the subjects to be conveyed are distinctly specified and set forth in a proper dispositive clause, (or other sufficient clause of conveyance,) the terms of that leading clause shall be taken as the measure of the rights so given; and the extent of the grant thus constituted shall not be varied, enlarged, or restrained, by the terms of any subsequent

Page: 217 ↓

The slightest consideration of the cases themselves must make it apparent that no other question was raised, or could be decided, in either of them. In the latest of them, that of Hamilton and Lady Montgomery in 1834, there was a regular feu-disposition by a party infeft, expressly disponing certain lands and teinds with procuratory and precept, but with a special stipulation that the disponee should relieve the disponer of all future augmentations of stipend, on being allowed to retain a part of his feu-duty, to answer such augmentations; and then there was a general assignation of writs and evidents in common style. In the course of time augmentations were laid on the teinds so conveyed, to a greater extent than the

Page: 218 ↓

The earlier case of Don, in 1814, proceeded indisputably on the same general ground, of the impossibility of controlling or enlarging a specific grant, constituted by leading clauses of conveyance, by the terms of a relative assignation of writs and evidents, however comprehensive those terms might be. It happened, in that case, that there was no proper dispositive clause, the conveyance to the heirs of entail being in the form of a procuratory of resignation by a proprietor infeft: but such a procuratory, as Lord Stair has observed, ‘has in it the effect of a disposition,’ and is, in fact, a full and direct disposition of the subjects resigned, to the superior in the first place, to whom it expressly ‘surrenders, upgives, and delivers’ the subjects resigned; and in the next place, and in substance, to the heirs in whose favour he is required to grant new infeftment. It is, accordingly, quite settled, that the original specification in a procuratory, of the subjects resigned, where the conveyance is completed in this form, is as exclusively the

Page: 219 ↓

There could not certainly be a stronger case for questioning the absolute supremacy of the proper dispositive or conveying clauses, in fixing the extent of the grant, and preventing its being enlarged by any accessary provisions; and accordingly, Lord Balgray, who was very learned in conveyancing, when the case first came before him as Lord Ordinary, found that the right to the tack was effectually conveyed, by this clause, to the heirs of entail. But, on farther consideration, the Court, and at last unanimously, altered this judgment; and in respect the heirs could take only what was resigned by the procuratory,

Page: 220 ↓

Strachan's case, in 1776, was different in its circumstances, but rested on precisely the same principles. Aird, a proprietor infeft, had, in that case, sold certain lands to Stewart by a mere minute of sale, in which he bound himself afterwards to grant disposition with procuratory and precept; but had not done so. In that situation, Stewart borrowed money from Whiteford; and in security merely for the sum lent, thought fit to grant him a disposition of these lands, with a general assignation to writs and evidents. On this, Whiteford, assuming that the full right to the minute of sale was conveyed to him by this assignation, raised an adjudication in implement in his own name, against Aird, who was noway his debtor, and proceeded to adjudge the lands; when a reduction of that proceeding was brought by Strachan, as trustee for Stewart's other creditors; and the Court —holding that it was absurd in one who had a right merely in security, and apparently for a small sum, to pretend that a general assignation of writs, in corroboration of such security, could give him a right to complete the inchoate titles of his debtor, and to sue his authors, in his own name —set aside his adjudication, and found that the right to the minute of sale was not carried by that relative assignation, but remained with Stewart, for the benefit of his creditors in general. The grounds of decision are very distinctly set forth in the argument for the successful party, in the report of Lord Hailes; and, without looking at that argument, it is impossible to make sense of the very imperfect notes

Page: 221 ↓

There is nothing, therefore, in any of the decisions referred to, that imports more than that an assignation to titles, where it is made in corroboration of a precise grant, can carry nothing beyond what is included in that grant; or that affords any ground for holding that such an assignation, when not connected with, or controlled by, such a grant, may not give the full right constituted by such titles to the assignee. And, indeed, when it is considered, that in all these cases there were these words and clauses of direct disposition, to which the appellant attaches so much importance, and the combination of which with an assignation to writs and evidents, he distinctly admits to constitute a complete conveyance, it must be at once apparent, that the decisions referred to, must have proceeded, not upon any inherent insufficiency in these assignations, to effect such a conveyance, but solely on the disconformity between the terms in which they were conceived, and those of these other leading clauses: with which, if they could only have been reconciled, there must have been an end of all objection. Nor was it possible for him to have avoided such an admission; since it is matter of notoriety, that by far the greater part of conveyances made on open charter —which are probably equal in number to half of all the conveyances made in Scotland —have been completed, and now stand, upon nothing but such dispositions by parties uninfeft, with relative assignations to the means of obtaining infeftment.But is it to be understood, then, says the appellant, that, a mere assignation to titles is sufficient, of itself, to carry the personal right to the lands, to which they relate, without any substantive or separate conveyance of that right ? and, consequently, to entitle the assignee to an unexecuted procuratory

Page: 222 ↓

Suppose a party, holding only a personal right to lands, should execute a deed, in which he first recited that he had sold them for a certain price, and that the purchaser had now made tender of that price, and required a conveyance in return, and then proceeded to say, “and whereas I am ready and willing to comply with the said requisition; but, seeing that I am myself uninfeft in the said lands, and consequently unable either properly to dispone the same directly, or to grant any effectual procuratory of resignation or precept of sasine in regard to them, I hereby, and in and for implement of the said bargain and sale, assign and make over to the saida. A.b. B. a certain unexecuted procuratory of resignation, (dated so and

Page: 223 ↓

But, though we have said so much on the hypothetical case of a naked and detached assignment to title-deeds and evidents alone, it is scarcely necessary to observe, that in our view of the present case, the clause relied on can neither be considered as importing an assignment to writs only, nor as standing by itself, and without connection with other important clauses. On the contrary, we conceive, that while there is ground for holding that it contains an express assignment to the cedent's personal right, as well as to the written titles in his person, we hold it to be clear that it refers to, and is to be taken in conjunction, —1 st st , with the obligation to infeft, and 2 d d , with the procuratory of resignation —the tenor of both which is not only consistent with the largest and most beneficial meaning and effect it admits of, but necessarily requires it to be taken with such large meaning and effect. It is upon this complex view of the whole structure and import of the deed that we chiefly rest our opinion; though it may be right to premise a

Page: 224 ↓

We understood it to be fully conceded in argument by the appellant, and, indeed, it could not well be disputed, that if the clause in question, standing where it does, had only, after assigning the whole writs, titles, and evidents of or relating to the lands, contained these few additional words, “together with all right, title, and interest which I now have, or can in any way pretend to have, in and to the said lands themselves,” the title of the assignee would have been perfect, and his right to execute the assigned procuratory free of all objection. But what are actually the words of the clause as it stands ? It does, in point of fact, “assign and dispone, under the conditions, provisions, and clauses, irritant and resolutive, above written, all and sundry writs, evidents, rights, and title-deeds, of or relative to the said lands and others. There is here, therefore, an assignment, in express words, not only to all the written titles in the person of the granter, but to his whole rights to, or in relation to, the lands; and they are not only assigned, but disponed also, and with and under the whole limitations of the entail —a qualification which was necessary and appropriate, if the right itself was meant to be assigned, but utterly without meaning as to a mere conveyance of written papers. Why, then, should not both parts of the assignment be effectual ?The appellant thinks it a sufficient answer to say, that the words referred to are mere words of style —that the word ‘rights’ in such a clause is but a synonime for rights or titles, and that in the case of Don, and in other cases, these, and even still stronger words, were accordingly held insufficient to carry more than the written documents: and to a certain extent this answer, we think, must be admitted. The words

Page: 225 ↓

Page: 226 ↓

But though this is the view which we should be disposed to take of this assignation clause, if we were to consider it as separate from, and independent of, any other, we have already intimated that we are not of opinion that this is truly the situation or character in which it presents itself. We think it clearly a relative, and, in some sense perhaps, a subordinate and accessary clause: but if it be accessary and subordinate, then most certainly the principle clauses to which it stands in that relation, are in no respect inconsistent, but in perfect accordance with the largest and most extensive sense that can be given to its terms. The object and purpose of the deed was, beyond all question, to settle and entail the lands which were at the disposal of the granter, in favour of a certain series of heirs; and it is worth while to consider how clearly and closely all its different parts are connected with, and made to bear upon and support each other. The obligation to infeft the heirs specified is the first; then, and with express reference to that obligation, namely, as the deed bears, “for accomplishing the said infeftment by means of resignation,” comes the procuratory of resignation for new infeftment in their favour; and finally, and for the purpose (as we read it) of enabling his procurators effectually to execute this mandate, and obtain such new infeftment, there is “the assignation to all writs and titles” in the person of the granter; including, beyond all question, his sister's disposition of 1808, (which was in fact his only available title,) and the unexecuted procuratory of resignation therein contained. According to our conception of the matter, this short view of the import and tenor of the whole deed, should leave as little doubt of its general efficacy, as of the substantive and separate validity of each of its connected parts. But a word or two may now be added as to each of these.

We do not understand upon what ground the appellant holds

Page: 227 ↓

Page: 228 ↓

But if an obligation to infeft be thus sufficient, of itself, to let the party into the right of the lands, by means of adjudication founded on it alone, where there is no assignation to writs and evidents, why should it not be sufficient without any such procedure, when it is coupled with such an assignation, which puts it in the power of the party himself to implement the obligation, and plainly makes it unnecessary to go back to the granter, or his heir-at-law, either for any voluntary, or legal and constructive fulfilment of it ? If a good right, in short, can be made up, on that obligation to infeft alone, by the party to whom it is granted calling on the granter to execute in his favour any procuratory which may be in his person, where there has been no assignation of that procuratory—how should there be any difficulty in the favoured party completing the right himself, where, in addition to this obligation, there is an express assignation to him of that procuratory, for the very purpose of securing implement of the obligation?Laying aside for the present the new procuratory, which, in the deed of 1810, is locally interposed between the obligation to infeft and the assignment to the original procuratory; and holding the former, in the meantime, as entirely null and inoperative, (which is the worst that can be said of it,) see how the deed would stand, when the two remaining members of it, of which we are now speaking, are brought into juxta-position.

Page: 229 ↓

But then there is, over and above, the new procuratory of resignation. Now, it is quite true that this, standing by itself, did not admit of direct or proper execution, so long as the granter was uninfeft; and that it could not, per se per se , vest

Page: 230 ↓

First of all, as has been already observed, a procuratory of resignation is truly of the nature of a disposition. It is, indeed, in form as well as in substance, a direct conveyance of the lands to the superior, for new infeftment to the heirs specified; or, substantially, a conveyance to those heirs, mediately, and by the intervention of the superior. It is, therefore, in itself a proper dispositive instrument; and where the granter is infeft, it is accordingly undeniable that it must be admitted to direct and complete effect, as such. But it is conceded by the appellant, that wherever there is a proper dispositive grant, followed by a relative assignation to writs and inchoate titles, no way contradictory to the terms of such grant, the two together will give a complete right, although the granter was not infeft; and could not, therefore, transfer the property of the lands by any mere words of disposition. The use of such words has no doubt been held to import a disposition (or assignation rather) of the personal right, which was all the granter had to give —as majus includit minus majus includit minus , —or, at all events, to constitute an obligation on him to make good what he held out to the disponee: but still, whether the dispositive words are held to apply to the lands themselves, or to the personal right, or to both, or only to infer an obligation on the disponer, two things may be taken as certain, —first, that they will not of themselves make a complete conveyance, unless they be coupled with a relative assignation to the means of completing it; and second, that when they are so coupled, they will make such a conveyance. But if this be incontrovertible where the deed begins by a direct disposition or conveyance to the heirs, there seems no reason for holding that the rule should be different, where there is an equally effectual

Page: 231 ↓

But there is a more simple and familiar view of the matter, which probably led first to the adoption of the practice followed in this case, and suggests a clear justification of its legality. The original procuratory in Miss Anstruther's disposition was in favour generally of her brother and his heirs; but he wished the new infeftment to be in favour of a particular series, and under the limitations of a strict entail. This he might have unquestionably obtained, by himself resigning on the original procuratory, and requiring the new charter to be qualified according to his wishes and intention. To make this requisition, however, with proper assurance of its being accurately attended to, it was obviously desirable, if not strictly necessary, that some written intimation to this effect should be made to the superior; and, considering that the only legitimate way in which a superior can be approached with a view to a new investiture, is by procuratory of resignation, it will easily be understood, that this would naturally occur as the most expedient form to be adopted. It is in instruments of this description that the destinations and

Page: 232 ↓

Nor will it appear, when the form and regular tenor of such a deed is considered, that there was truly any thing anomalous or inconsistent in this mode of proceeding. There were here, no doubt, two procuratories of resignation, for the purpose of effectuating one new investiture; and though it may in one sense be true, as we have already stated, that it was the peculiar province of the one to effect the resignation, or to place the lands in the hands of the superior, and of the other to define the terms of the charter he was thereafter to issue, it would by no means be correct to hold that the latter could have no other operation; or in fact that it gave any directions which could not be substantially obeyed. It will be recollected, that the form and substance of a deed of this kind, consists in a mandate or direction to certain procurators, whose names are all along left blank, and who are presumed to act, when

Page: 233 ↓

In all this we see nothing incompetent, or inconsistent either with principle or with form. He had full right and power to order the execution of the original mandate of 1808, and to annex to that order any new destinations or conditions he chose; and we do not think it can be questioned, that he might give this order by his commissioners and mandatories, as well as directly; and this we conceive is truly all that he did. The procuratory of 1810, in so far as the actual resignation of the lands is concerned, is a mere mandate, as we take it, to execute the procuratory of 1808 —the execution of which, though uninfeft, he had an undoubted right to direct; and, in this sense, there was no impropriety or usurpation of power, in directing his mandatories to resign the lands, which, though uninfeft, he could legally resign, or cause to be resigned, upon that original procuratory.

It is in this way that, connecting the terms of this procuratory

Page: 234 ↓

Page: 235 ↓

Considering the terms of the remit from the House of Lords, under which our opinions are required, and the circumstances in which that remit was made, we have thought it right to go thus fully into the grounds and reasons on which it appears to us that the law, to which effect was given in the judgment appealed from, is founded. But, for the justification of that judgment, and probably even for the satisfaction of the Court of Review, it might have been enough to refer to the solemn decision by which that law was settled, in circumstances precisely parallel, in the case of Lord Napier, and Livingstone, in 1763, and affirmed on appeal to the House of Lords, in March, 1765. It is now admitted that that case was exactly parallel to the present; and this, indeed, is demonstrated by the original documents, judgments, and pleadings, which have now been printed, and will be reported to the House of Lords along with these opinions. The circumstances were shortly these: —The Countess of Findlater had merely a personal right to the lands of Westquarter, under a disposition by the last proprietor infeft, with procuratory and precept in favour of her and her heirs generally; and, having no other title to these lands, she, in 1705, executed a mere procuratory of resignation, without either any clause of disposition of the said lands, or of her personal right to them, or even any obligation to infeft, and with a general assignation only, to writs, titles, rights, and evidents, in favour of a certain series of persons, and under the limitations of a strict entail. Infeftment was afterwards taken by one of the heirs of entail, upon the joint exhibition of this procuratory, and the precept of sasine in the original disposition to the Countess, which was held to have been effectually conveyed by the general assignation in the

Page: 236 ↓

The appellant now admits that this case is exactly in point; and that it necessarily assumed and imported the fallacy of all the arguments he now maintains. But he says, that the pursuer in that case had no interest to maintain the general insufficiency of the conveyance and destination effected by these titles, as his own right was derived from them; and that the only question discussed, was with regard to the fetters and limitations of the entail, and the competency of imposing those by the deed of a party uninfeft; while the larger question, as to the competency of establishing any effectual right to the lands under such titles, was not properly in the view of the Court. But though the pursuer might be willing to evade that question, it was, first of all, impossible to withhold it from the view of the Court, to whom the whole documents were submitted and anxiously commented on; and next, it is plain, from the pleadings now exhibited, that the defender had no desire that it should not be fully considered; and, accordingly, it is brought forward and insisted on very strongly, at pages 15 and 16 especially, of the prints now referred to —where it is clearly shewn that, if the objections to the entail on the alleged defects of the title were well founded, the whole conveyance by the Countess must necessarily be null, and the right to the lands remain with her heirs-at-law. It was with this alternative, therefore, distinctly before them, that the Court not only found generally that the entail “was good and

Page: 237 ↓

It is in vain, therefore, for the appellant to say that nothing was settled by this decision except that a party uninfeft might make an effectual entail. It was also very clearly settled, we think, —1 st st , That such a party might make such an entail by a mere procuratory of resignation, without dispositive words, or even without (which, however, we have here) any obligation to infeft; 2 d d , That such a mere procuratory, with a relative assignation to writs and evidents, import, between them, a complete conveyance to the granter's whole right to the subjects resigned, and are sufficient, per se per se , to entitle the assignees to make their right to them real, by executing the assigned titles; and, 3 d d , That any destination or limitation contained in the procuratory, may be competently inserted in the seisin or charter taken on the assigned precepts or procuratories, though no mention is made of such limitations in those precepts or procuratories themselves. All these points were fully argued and discussed in that case; and it is needless to say that the decision upon them effectually negatives every one of the propositions now maintained by the appellant.When the frequency of the practice of transferring and holding property on what is called open charter, indeed, is considered, and its manifold advantages, in saving the great expense of making up new titles, and the hazard of blunders in completing them, it cannot appear wonderful that such a compendious method of effecting a new investiture as was followed in the case of Livingston, should have been frequently

Page: 238 ↓

Page: 239 ↓

It only remains, then, to say a word on the appellant's second proposition —that the whole destination of the deed of 1810 was revoked by that of 1814 —which is confessedly ineffectual as a separate conveyance. We are clearly of opinion, that there is no ground whatever for this proposition, —first, because there is plainly no general revocation of the original destination; second, because there is no change whatever on that leading part of it under which the present heir has succeeded; and, third, because the deed of 1814, instead of generally recalling that of 1810, has expressly declared, that “the foresaid deed of entail, in so far as not altered by these presents, shall remain in full force, virtue, and effect.”F. Jeffrey .D. Boyle .John Hope .

J. W. Moncreiff .”

“We concur in the above opinion, with this qualification only, that we hesitate to say, that the use of the word ‘rights’ in the assignation of writs, considering the context in

Page: 240 ↓

J. H. Mackenzie .A. Maconochie .J. H. Forbes .John Fullerton .Ad. Gillies .J. Cuninghame .John A. Murray .H. Cockburn .

J. Ivory .”

These opinions were printed, and laid upon the table of the House, along with supplementary cases for the parties, and this day, without farther argument being allowed, it was moved that the judgment should be affirmed, which was accordingly done by the following order.Whereas this day was appointed for hearing counsel farther upon the petition and appeal, wherein James Renton, accountant in Edinburgh, is appellant, and Philip Anstruther, Esq., second son of the late Sir Alexander Anstruther, of Third Part, Knight, sometimes recorder of Bombay, and Dame Sarah Anstruther, relict of the said Sir Alexander Anstruther, are respondents,—which said appeal was on the 28th day of February, and 1st day of March, 1842, heard ex parte ex parte as to Robert Anstruther, Esquire, of Caiplie and Thirdpart, in the county of Fife, he not having answered the said appeal, though peremptorily ordered so to do, —and which cause was with the consent of the counsel on both sides, by an order of this House of the 1st day of March, 1842, remitted back to the Second Division of the Court of Session, in Scotland, “to review generally the interlocutor complained of, with an instruction to the Judges of that Division to order the same to be argued, vivâ voce vivâ voce before the whole Judges,

Page: 241 ↓

Solicitors: John Bickerton.— Spottiswoode and Robertson, Agents.