Scottish Court of Session Decisions

Lord Deas—I shall take this case on the footing that the clause in the entail is reducible at the instance of the other heirs, because it is in contravention of the deed of obligation. But taking it so I think that the provision is unobjectionable. The new deed of entail was executed in 1851, recorded in the register of tailzies on 13th January 1852, and in the register of sasines on 24th March 1852. The marriage-contract was not executed till November 1852, eight months after the entail had been feudalised. The infeftment on the marriage-contract was recorded in March 1853. Therefore it is undoubtedly preferable to any personal obligation, unless it can be shown that there was bad faith. Was there such? Did the defenders know anything that ought to have induced them to suppose that the deed of entail contained a power which ought not to have been there? I see no proof of that. I think the contrary is proved. It is very clear that the defenders had no notice of it in point of fact, but it is maintained that they had in point of law. That raises the question whether a person reading the deed of obligation could see anything on the face of it to make it necessary to suppose that this provision was a thing which it did not allow. No doubt there was to be a large debt, and there was to be an express prohibition against “further burdening the estates.” I am not satisfied, even if the sentence had stopped there, that that would have prevented Sir James Riddell making this provision for his daughter, but it goes on to say—“and such other conditions, provisions, and restrictions as they (that is, the pursuer and his uncle) shall think proper.” It must be assumed that the parties were looking after their own interests, and if they allowed a deed of entail to be executed and afterwards feudalised, the fair presumption in the case of onerous third parties is that it was done with their knowledge. Then it was to be executed to the satisfaction of Mr Mackenzie. The meaning of that was, Mr Mackenzie being the agent for the next heir after the pursuer, that he was named as a sort of arbiter bound to see to the interests of all parties. It is not by any means clear that the defenders were bound to inquire whether Mr Mackenzie had done his duty; they were entitled to assume that he had. But supposing they were, nobody doubts that the deed was executed at his sight. Third parties had nothing to do with the question whether he did his duty rightly. From what we know of him we know that he would do so, but third parties had nothing to do with that. The pursuer states in Cond. 11 that he “relied upon Mr Mackenzie as an intelligent and conscientious man of business discharging the duty which he had undertaken;” and when examined as a witness he says—“ I took it for granted that Mr Mackenzie, though not acting for me, would see that the new entail was in terms of the obligation, and in accordance with the old entail. If I had not put this trust in Mr Mackenzie I probably should have employed some one to act on my behalf.” According, therefore, to the pursuer's own showing he trusted Mr Mackenzie, and how is it possible to say that third parties should not do so also? Supposing, then, the defenders had seen the obligation—and I think they were bound to see the register of sasines at all events—I am clear that that would not touch this contract of marriage, which is as onerous as any deed can be. What we are now doing does not decide the question whether this clause is to stand permanently in the deed of entail. I doubt if we could decide that in this action. I think the proper parties are not called so as to entitle us to do so. But we are not asked for a decision of this general question.

Lord Ardmillan—In stating my concurrence in the opinion expressed by your Lordship I shall make only a few remarks. I am clearly of opinion that the pursuer's argument in support of one of the alternative views which he presented to the Court is not well founded. I am quite unable to arrive at the conclusion that on a fair construction of the deed of obligation it was the intention of the parties or the effect of the deed to deprive the heirs of entail of all power to provide for younger children by deeds affecting the estate. Such an intention is not expressed, and is not to be presumed, and as appears from the statements of the pursuer did not exist. I think the words “further burdening the estate” in the deed of obligation, occurring in the prohibition to be inserted in the new entail, must be read in connection with the previous and the succeeding parts of the deed, and that so read the words do not apply to the “provisions” which the consenters “may think proper,” but to debts previously declared to be “burdening the estate.” I have no doubt that it was in the power of Sir James Riddell, with concurrence express or fairly implied of the consenting heirs, to grant reasonable “provisions” for younger children over the estate. I think that is the fair and legitimate construction of the deed of obligation, and it is very plain that that was the meaning attributed to it by all the parties engaged in the preparation of the entail, and particularly by Sir Thomas Riddell himself, as appears from his own testimony. In the next place, if there was to be a power of making and securing provisions to younger children according as the same should be adjusted and inserted in a new entail executed at the sight of Mr John Ord Mackenzie, W.S., then I am of opinion that this new entail was executed at sight and to the satisfaction of Mr Mackenzie, a gentleman selected by the parties, and a gentleman of the utmost respectability and the highest professional position, and there is no reason to suppose that the interests of the pursuer were neglected. He himself says that he trusted to Mr Mackenzie, and that if he had not done so he would have employed another agent. Mr David Smith was the pursuer's agent at the time in other matters, but as in the preparation of the new entail he acted for Sir James Riddell he did not act also for the pursuer, but considered the pursuer's interests to be safe in the hands of Mr Mackenzie. On the whole I think that, looking to the terms of the deed of obligation and to the proceedings in adjustment and execution of the new entail, the pursuer is not entitled to reduce the clause in the deed of entail which contains this power to grant bond of provision. I think the whole procedure was fairly and reasonably taken in the manner contemplated by the deed of obligation, that the new entail was executed as intended, and that the sum of £6000, though considerable, was within the power of the parties, and was not objected to by the pursuer or his advisers for several years. It appears that the pursuer wished after his father's death to induce his mother Lady Riddell to abate her provision of £1000 a-year. For this purpose a memorandum was prepared by Mr Barstow on the part of and with the knowledge of the pursuer; and in that “memorandum of rental and burdens,” immediately following “Lady Riddell's jointure £1000,” is “Mrs Cunliffe—interest of £6000, at 9 per cent., £240.” This view of the “burdens” was intended to induce, and actually did induce, Lady Riddell to relieve the pursuer by abating £400 a-year of her provision. I cannot for a moment imagine that either Mr Barstow or the pursuer intended to deceive Lady Riddell into compliance by representing as a burden what they knew was not a burden. On the contrary I am satisfied that they believed the £6000 to be really a burden, as being a good provision to Mrs Cunliffe, well secured on the estate by the new entail. Therefore if the first and most extreme view stated by Mr Mackenzie is put aside as untenable, as I think it ought to be, there is in the conduct of the parties and the nature and circumstances of the procedure enough to show that the clause giving power to make provision to the extent of £6000 was fairly and effectually introduced into the new entail. But a second question arises. The deed complained of here is a marriage-contract, a deed of a peculiarly onerous character. At the date of this contract the former entail was at an end, and the estate stood on the investiture under this deed of entail. The marriage-contract, with the provision for the daughter of Sir James Riddell of £6000, was not in contravention of that entail. Nay, more, it was in accordance with its intent and its provisions. I am quite satisfied of the bona fides of the marriage-contract trustees and of Mr and Mrs Cunliffe. They were parties to this mutual contract, they accepted the provision, and became onerous creditors in the obligation, holders of a feudalised security. On what ground can that provision for a child, granted under circumstances which render it especially onerous, be reduced? Is it because the estate was entailed? Nay, but the entail permits it. The entail does not fetter beyond the prohibitions, and this provision is not prohibited. I say nothing in regard to a case of fraud or mala fides such as has been in the argument supposed. These defenders were in bona fides, and they are onerous creditors. It is not justice to their case even to illustrate it by putting the case of fraud or mala fides. There is nothing of the kind here. Accordingly I am, apart from the separate question in regard to the entail, of opinion that the provision of £6000 in the marriage-contract of Mr and Mrs Cunliffe cannot be reduced on the grounds here stated, and thus the defenders, who alone have appeared, ought to be assoilzied.