Scottish Court of Session Decisions

The late Sir William Drummond Steuart was heir of entail in possession of the lands of Murthly, Grandtully, and others, in the county of Perth, and these lands he sold to the pursuer Mr Henry Padwick under certain conditions. The object of the present action was to compel Sir Archibald Douglas Stewart, Sir William's heir and successor, to implement the obligations undertaken by Sir William in the agreement of sale.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 19 th July 1873.—The Lord Ordinary having heard the counsel for the parties, and considered the closed record in the conjoined actions, proof, and process—Assoilzies the defender, Sir Archibald Douglas Stewart, from the conclusions of the summons, and decerns: Finds the said defender entitled to expenses, of which allows an account to be given in, and remits the same, when lodged, to the Auditor to tax and to report.

Note.—The pursuer concludes in his summons for decree of declarator that a minute or agreement of sale of the Grandtully, Murthly, and Strathbraan estates, entered into between him and the late Sir William Drummond Steuart, constitutes a valid and effectual contract of sale, and is binding on the defenders, and that he is entitled to enforce implement thereof notwithstanding the prohibitory, irritant and resolutive clauses contained in the bond of tailzie and relative deed of nomination affecting the said estates, and also for decree of adjudication of these estates in implement to him of the obligation contained in the said minute or agreement of sale.

I. Besides maintaining that the bond of tailzie and deed of nomination constitute a strict entail of the said estates, the defender, Sir Achibald Douglas Stewart, who succeeded as heir of entail on the death of Sir William Drummond Steuart, pleads that it is res judicata by two judgments, dated respectively 19th March 1853 and 16th May 1871, that the deeds condescended on constitute a valid and effectual entail. The first of these judgments was pronounced by Lord Cowan, as Lord Ordinary, in an action of declarator raised by Sir William Drummond Steuart against his son and Sir Archibald Douglas Stewart and others, to try the validity of the entail, and the second of these judgments was pronounced in an action of declarator and adjudication raised for the same purpose by Mr Alexander Moncreiff, Writer to the Signet, Perth, under an arrangement with Sir William Drummond Steuart, against the said Sir William Drummond Steuart, Sir Archibald Douglas Stewart, and others. in the first of these actions the validity of the entail was challenged on the same grounds as are now urged against the validity of the prohibitory, irritant, and resolutive clauses of the bond of, tailzie. Lord Cowan by his judgment found that the entail was not defective in any of the clauses requisite by statutory law and practice for the constitution of a valid and complete entail, and assoilzied the defenders. In the second action the validity of the entail was challenged on all the grounds which are stated in the present action, and decree of absolvitor was pronounced therein by the Lord Ordinary in respect of the failure of the pursuer to deliver the printer's proofs of the pleadings in terms of the Court of Session Act, 1868. This last judgment was pronounced eighteen days after the death of Sir William Drummond Steuart.

It appears to the Lord Ordinary that these two judgments do not stand in the same position, and that while the first judgment is operative as res judicata against the pursuer, having regard to the peculiar nature of the agreement of sale entered into between him and Sir William Drummond Steuart, the second judgment has not that effect.

1. The Lord Ordinary considers that, although the plea of res judicata in respect of Lord Cowan's judgment would not have been effectual against the pursuer if he had purchased and obtained a title to the estates, for a full price paid, from Sir William Drummond Steuart during his life, yet that it is effectual against him in respect of the very peculiar nature of the terms and conditions of the agreement with and under which Sir William Drummond Steuart sold the estates to him. By the agreement Sir William sold the estates to the pursuer, and bound himself and his heirs and successors to deliver to the pursuer a good, valid, and clear title to the estates, and it was thereby agreed that the term of the pursuer's entry should ‘be at the date of the death of the said Sir William Drummond Steuart, and that the statutory rule as to rents and assessments shall apply to and regulate the rights of parties.’ It was also agreed as to the period between the date of the agreement and Sir William's death, that he should have right to grant leases and alter some subsisting arrangements with tenants, subject to the condition that he should not be entitled to grant any lease of Murthly Castle, offices, gardens, and policies, or any lease at a diminution of rental, or subject to payment of meliorations by the pursuer, or before the expiry of the then existing leases, or to alter without the pursuer's consent the existing leases of the game and salmon fishings, or to grant any new lease thereof for a period longer than his life, or to grant any lease of the lands for longer than nineteen years. The price was £350,000, which appears from the proof to have been fixed at somewhat less than thirty years' purchase of the rental; and this price, it is agreed, shall be paid to Sir William or his executors. ‘at, but only at the first term of Whitsunday or Martinmas, six months after the validity of the sale hereby made shall be finally and irreversibly ascertained and determined, with interest at the rate of 5 per cent. per annum from that date, and that the free realised amount of the rental arising prior to that time, but after the death of Sir William Drummond Steuart, so far as actually received by the said Henry Padwick or his foresaids, shall be also paid over to the executors of the said Sir William Drummond Steuart.’ It was also thereby agreed that the price should only be paid on the pursuer obtaining a valid title by adjudication

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or otherwise to the estates and implement of the obligations therein undertaken. It was also stipulated by the agreement, ‘that in the event of any judicial proceeding being instituted in the lifetime of the said Sir William Drummond Steuart affecting his position or his right to the said lands, baronies, and others, or any part of them, it shall be in the power of the said Sir William Drummond Steuart to annul this agreement, and that, in the event of his doing so, these presents shall be held to have been from the beginning null and void, and of no effect whatever.’ And Sir William bound himself, his heirs and successors, to pay the whole expenses as between agent and client which the pursuer should incur in proceedings in the Court or in the House of Lords, which might be raised to ascertain the validity of the sale thereby agreed to.

A purchaser who has obtained a title to an estate held on a defective entail on payment of a full price, cannot, the Lord Ordinary thinks, be affected by any judgment previously obtained against the seller in an action inter hæredes to which he was not a party, because he would be entitled to plead that he bought on the faith of the records, and that these did not disclose to him the judgment which had been pronounced, but only that the fetters under which the estate was held were defective. But the pursuer does not, the Lord Ordinary conceives, stand in the position of such a purchaser. He has paid no price, and he has acquired no title to the estate. He could not have enforced the agreement during Sir William's life. Sir William remained proprietor until his death, and it was only upon and after his death that the pursuer was to obtain entry. All that the pursuer got by the agreement was the obligation of Sir William to give him a title to the estate with entry as at his death, and this obligation was conditional, because Sir William reserved right to annul it should any judicial proceedings be instituted against him affecting his position or right as heir of entail in possession. Such being the position of the pursuer and the nature of the agreement on which he founds, the Lord Ordinary is of opinion that he cannot be held to be a purchaser who has acquired an estate on the faith of the records, against whom the plea of res judicata will be ineffectual, but that he is liable to all the exceptions pleadable against Sir William, whose obligation he is seeking to enforce after his death, and among others to the exceptio rei judicatæ, which, according to Lord Stair (4, 40, 16), is not only relevant, ‘being a decreet between the pursuer and the defender, but it is sufficient if it was between their predecessors or authors.’ (See also Erskine, 4, 3, 3).

But the defender's plea of res judicata, founded on the judgment of Lord Cowan, is only effectual against the pursuer upon the questions raised and determined in the action in which it was pronounced, that is, upon the objections now urged against the prohibitory, irritant, and resolutive clauses.

2. In regard to the plea of res judicata founded upon the judgment pronounced in the action at the instance of Mr Moncreiff, the Lord Ordinary is of opinion that it is not effectual against the pursuer. Although it was pronounced in an action which had been raised by arrangement with Sir William for the purpose of trying the validity of the entail, no decreet was pronounced during Sir William's life. The decree was only pronounced eighteen days after his death, and then it was not a judgment on the merits of the action, but only on a decree by default, which Mr Moncreiff allowed to be pronounced because it had been resolved not to proceed further with the action. Such a decree cannot be said to have been pronounced against Sir William Drummond Steuart, and it cannot, it is thought, be held sufficient against the pursuer.

The pursuer has stated on record numerous objections to the bond of tailzie and deed of nomination and other deeds condescended on, but the only objections which were ultimately insisted in at the debate were those now to be noticed.

II. The pursuer maintains that in the bond of tailzie there are no fetters imposed upon the heirs to be named in the deed of nomination,—that the maker intended these heirs to be subject to other fetters which were to be inserted in the deed of nomination, and that these were not and could not validly be inserted therein, and that the two deeds do not together constitute a valid entail.

The Lord Ordinary is of opinion that this objection is not well founded.

By the bond of tailzie the granter resigned the lands for new infeftment in favour of himself and the heirs-male of his body, and the heirs whatsoever of their bodies, whom failing, to the heirs whatsoever of his own body, and the heirs whatsoever of their bodies, the eldest heir-female being always preferable and succeeding without division, ‘which failzing to any person or persons that I have now or shall at any time hereafter during my lifetime vel in ipso articulo mortis nominat, design, and appoint to succeed to the lands, baronys, and others above rehearsed, by a writ or nomination subscrived or to be subscrived with my hand, and under such reservations, provisions, qualifications, conditions, restrictions, limitations, and irritancies as are or shall be contained in the said nomination which the persons therein nominat or to be nominat shall be holden to perform and fulfil, and which nomination shall be as valid and sufficient as if it were insert herein and in the infeftments to follow hereon, and failzeing of any such nomination, or the same being made and afterwards revoked or cancelled, or if the persons therein named or to be named shall faill, then to the’ several persons therein specified and their heirs-male, ‘which failzieng to return to me and my nearest and lawfull heirs-male whatsoever, which failzieing to my other heirs and assigneys whatsomever, under the reservations, provisions, qualifications, conditions, restrictions, prohibitions, limitations, and irritancies after mentioned, viz.’; and then follow the prohibitory, irritant, and resolutive clauses.

The Lord Ordinary considers that, according to the true construction of the bond of tailzie, the lands were resigned, not only in favour of the heirs designed and specified, but also in favour of those who should be named or designed in the deed of nomination, with and ‘under the reservations, provisions, qualifications, conditions, restrictions, prohibitions, limitations, and irritancies after mentioned’ in the tailzie, that is, the prohibitory, irritant and resolutive clauses. These fettering clauses were made applicable to the whole heirs named or to be named. No doubt the words occur after the destination to heirs to be nominated—‘And under such reservations, provisions, qualifications, conditions, restrictions, limitations, and irritancies as are or shall be contained in the said

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nomination.’ But these words, which are in accordance with the style given by Dallas of Saint Martin's (p. 582), do not prevent the application of the fettering clauses, which is clearly made by the tailzie to the heirs to be nominated, and are additional thereto. The words employed are different from the general words used to designate the fettering clauses, and they were, it is thought, used with reference to provisions which the granter considered it necessary to insert in the nomination in consequence of the peculiar position of the persons whom the granter then intended to call and called by the deed of nomination. The deed of nomination is a proper deed of nomination. It was executed on the same day as the bond of tailzie. In that deed of nomination the heads of various families were named who had been omitted in the destination in the tailzie. These persons were either under attainder, or were liable to be attainted for treason, and by the deed of nomination, in case of their being pardoned or freed from attainder, and not otherwise, the granter made, in exercise of his undoubted power, a new nomination of heirs under the prohibitory, irritant, and resolutive clauses of the bond of tailzie, by which he introduced these heads of families into their proper place in the former destination. Having done this, the granter provided that if any of the heirs according to the destination of the bond of tailzie should have got possession of the estates before the above written events shonld happen as to any of the said persons, who were posterior in order by the nomination, then the said heirs should be bound to denude in favour of the prior heir, but should not be obliged to account for the rents during their possession, the said heirs nevertheless being bound to pay all taxes and burdens during that time, to keep up houses, dykes, planting and policy, and to account to the prior heir for the price of wood sold. It was also provided that the nomination should be effectual in favour of any of the persons named, and his issue, upon his being rehabilitate, although others should not be so rehabilitate, or free from suspicion, or safe from conviction, so as they may be capable to succeed.

It was just such reservations and provisions as these that the granter reserved right to apply to the heirs to be named in the deed of nomination in addition to the prohibitory, irritant, and resolutive clauses of the tailzie. These latter clauses were, the Lord Ordinary considers, distinctly made applicable to the heirs to be named, as well as to the other heirs of tailzie specified in the bond of tailzie. Their application was not affected by the conditions in the deed of nomination above noticed, and these conditions, which were within the granter's power, do not affect the validity of the bond of tailzie and deed of nomination.

The Lord Ordinary is therefore of opinion that the bond of tailzie is valid and effectual as regards the heirs to be named,—that the deed of nomination was a valid exercise of the faculty to name heirs,—and that the objections of the pursuer to the bond of tailzie and deed of nomination above referred to are untenable.

III. The pursuer also maintains that the deed of entail is defective in regard to the prohibition against alteration of the order of succession, and also in respect that the irritant and resolutive clauses are not applicable to a prohibition against alteration of the order of succession, and are otherwise invalid.

1. It is by the prohibitory clause ‘expressly provided and declared that it shall noewise be lawful to any of the heirs above written, failing heirs of my oun body, and their male descendants, to sell alienat, and dispon the lands, baronies, and others above rehearsed, or any part thereof, either irredeemably or under reversion, or to grant woodsetts or infeftments of annualrent furth thereof, or to burden the said lands with any servitudes, or other burdens, or to set tacks or rentalls for any longer space than the setter's lifetime, or if the same be granted for longer space, not under the rantall, neither shall it be lawfull to them, nor in their power, to contract debt, nor committ any crime, or do any other deed whereby the lands, baronys, and others above wryten, or any part thereof, may be apprysed, adjudged, or any other manner of way evicted or forfaulted, or the order of succession hereby sett down anieways altered or innovat in prejudice of this present tailzie, or of those who, by virtue thereof, shall be then to succeed.’

The objection of the pursuer to the prohibitory clauses is founded upon the cumulative manner in which the prohibitions, other than sales and alienations, are described, commencing with the words ‘neither shall it be lawful to them nor in their power to contract debt, nor commit any crime, or do any other deed whereby,’ &c. He maintains on the authority of the Overton case (Maclean and Robertson, 871), that there is no substantive or self-subsisting prohibition against the alteration of the order of succession, but only a prohibition against contracting debt and committing crime, whereby the lands may be adjudged, evicted or forfeited, and, as a consequence of such adjudication, eviction, or forfeiture, the rights of succession of the succeeding substitutes evaded or prejudiced. The Lord Ordinary is of opinion that the prohibitory clause in the present entail does not afford room for the application of the principles on which the Overton case was decided. Giving full effect to these principles, he considers that there is here a substantive prohibition against alteration of the order of succession, which is independent of the prohibition against the contraction of debt and commission of crime, and of the adjudication, eviction, and forfeiture, which are described as the consequences of these acts. In the Overton entail the prohibition was not to sell or dispose upon the lands, nor to ‘contract debt’ or do any other deed whereby the said lands and subjects may be adjudged or evicted from the succeeding members of entail, or their hopes of succession thereto in any measure evaded.’ These words were held not to contain a substantive prohibition against alteration of the order of succession, but only a prohibition against the contraction of debt whereby the succession may be evaded, which it would be by adjudication for debt. But in the present case the clause is altogether different. The heirs are thereby prohibited ‘to contract debt, nor commit crime, or do any other deed;’ that is, any deed other than contracting debt, or committing crime, whereby the lands may be adjudged, or evicted, or forfeited, ‘ or the order of succession hereby sett down anieways altered or innovat in prejudice of this present tailzie;’ that is, applicando singula singulis, not to contract debt whereby the lands may be adjudged or evicted, not to commit crime whereby the lands may be forfeited, and not to do any other deed whereby the order of succession may be altered. Further,

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the words used in regard to the alteration of the order of succession, which are very different from those in the Overton entail, exclude the construction contended for by the pursuer, because there is no debt or crime whereby the order of succession can be altered. The words employed are those used by conveyancers, and, as remarked by Lord Cowan in the rule to his judgment, they are those technically appropriate to describe deeds of alteration of the order of succession. The Lord Ordinary thinks it unnecessary to allude further to this objection after the very full note of Lord Cowan thereon, in the reasoning contained in which he concurs.

2. The irritant and resolutive clauses are in the following terms:—And if the said heirs of tailzie ‘shall do anything in the contrair of the said provisions, either by disponing, or committing any crime or delict, or by contracting debt, or doing any other deed, the said debts, deeds, and all and every one of them, shall not only ipso facto become void and null in so farr as concerns the lands, baronys, and others above specified, so that they shall not be affected therewith in prejudice of the succeeding heirs of tailzie and provision who are to succeed, seing thir presents are granted sub modo, and with the provisions above specified, and no otherways, but also the contraveeners’ shall forfeit and amit their right and interest in the said lands, and the same shall devolve upon the person who shall ‘have right to succeed by virtue hereof, free from all debts, deeds, and crimes done, contracted, or committed by the contraveners,’ &c.

The first objection to these clauses is, that, while the heirs are prohibited from selling, alienating, and disponing, the irritant clause only refers to disponing. Even if the irritant clause were to be construed on the principle of enumeration, as contended for by the pursuer, it is, the Lord Ordinary thinks, hopeless for the pursuer to maintain that the word dispone is not sufficient to cover both sales and alienations, after the numerous decisions to the contrary— Elliot, 19th May 1803, Dict. 15,542; Stirling v. Walker, 20th February 1821, F.C.; Elliot v. Pott, 14th March 1821, 1 Shaw's App. 16 and 89; Stirling v. Dun, 22d June 1829, 3 W. & S. 462; Murray, 4 D. 803, and 3 Bell's App. 100.

3. The pursuer also maintains that the irritant and resolutive clauses are not applicable to a prohibition against alteration of the order of succession. The Lord Ordinary is of opinion that this objection is not well-founded. The resolutive clause is a continuation of the irritant clause, and the two form one unbroken sentence. The leading and governing words of these two clauses are—and if the heirs ‘ shall do anything in the contrair of the said provisions,’ that is, of the prohibitions which immediately precede; and then the deed proceeds,’ either by disponing or committing any crime or delict, or by contracting debt or doing any other deed,’ that is, any other deed ‘in the contrair of the said provisions.’ If these words do not include, as the Lord Ordinary thinks they do, all deeds done in contravention of the prohibitions, they can only apply to deeds altering the order of succession. The tailzie then provides that ‘the said debts, deeds, and all and every one of them, shall’ be void and null. These latter words are not confined in their application to the immediately preceding words, ‘or doing any other deed.’ They are general words of reference, which extend to and comprehend, the Lord Ordinary thinks, everything done in the contrary of the prohibitions. Further, the clause goes on to provide that the contraveners shall forfeit their right to the estate, and that the same shall devolve upon the next heir ‘free from all debts, deeds, and crimes done, contracted, or committed by the contraveners;’ that is, deeds done, debts contracted, or crimes committed. These words are also quite general: The whole of them follow upon the hypothesis with which the irritant and resolutive clauses commence, namely, the doing anything in the contrary of the provisions; and they refer to and include all acts of contravention done in the contrary of all the prohibitions. Depending as they do upon the irritancy declared in the commencement of the clause, they strengthen, if that were necessary, the view that the ‘debts, deeds, and all and every one of them,’ done in the contrary of the prohibitions, refer to and include the whole of these prohibitions— Murray v. Murray, 4 D. 803, and 3 Bell's Appeal Cases, 100; Kintore, 23 D. 1105, 4 Macqueen, 520.

4. It is further maintained that the bond of tailzie and deed of nomination were not duly recorded in the register of tailzies in accordance with the Act 1685, c. 22, in respect that, while the bond of tailzie was recorded on 8th June 1720, the deed of nomination was not recorded until 4th March 1760.

By the Act 1685, c. 22, it is enacted, with reference to recording, as follows:—'And the original tailzie, once produced before the Lords of Session judicially, who are hereby ordained to interpone their authority thereto, and that a record be made in a particular register-book, to be kept for that effect, wherein shall be recorded the names of the maker of the tailzie, and of the aires of tailzie, and the general designations of the lordships and barronies, and the provisions and conditions contained in the tailzie, with the foresaid irritant and resolutive clauses subjoined therto, to remain in the said register ad perpetuam rei memoriam.’

The pursuer maintains that the bond of tailzie and the deed of nomination together constitute the deed of entail, and that the Act requires one production and one entry; that is, that the two deeds should be produced to the Court, and recorded at one and the same time. The Lord Ordinary cannot adopt this view, and he considers that it is not required by the Act. The object of the Act in requiring recording was publication to the lieges and preservation ad perpetuam rei memoriam. The words, ‘once produced before the Lords of Session judicially,’ does not mean that where there is a deed of entail and a deed of nomination following upon a destination hæredibus nominandis in an entail, the two must be produced to the Court at one and the same time. It means, the Lord Ordinary thinks, that when produced, or upon being produced, the authority of the Court shall be interponed thereto, and it shall be recorded. There does not seem any principle on which this simultaneous recording is necessary, and very strong grounds must be shown for requiring that as a solemnity under the sanction of nullity. No such grounds were stated to the Lord Ordinary. Suppose that the heirs of the granter's body had succeeded and held the estate under the recorded bond of tailzie, and the succession had never opened to the heirs named in the deed of nomination, and that the latter deed had never been recorded,

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could it have been maintained that the entail was bad in consequence of that deed not being recorded? Or suppose that the heirs named in the recorded tailzie held the estate, and that the heirs called by the unrecorded deed of nomination were all dead, would the failure to record the latter vitiate the tailzie? Or take the case of a nomination of postponed substitutes made long after execution of the tailzie, may the granter not record his tailzie until he executed his nomination, which he might do even in articulo mortis? And if the granter died leaving his tailzie recorded, could the first called heirs of tailzie who succeeded maintain that they held the estate in fee simple until the nomination was recorded? The Lord Ordinary thinks that the answer to all these cases would be in the negative; and if he is right in this, it follows that simultaneous recording is not necessary to the validity of the entail. No doubt the Act 1685, c. 22, requires that the names of the heirs of tailzie shall be recorded. This, therefore, appears necessary as a security against purchasers and creditors when the succession has opened hæredibus nominandis; but it is, the Lord Ordinary conceives, sufficient, if after that succession has taken place the deed of nomination be recorded at any time before the estate has been acquired by a purchaser, or exposed to the diligence of creditors. In the case of Stewart v. Porterfield ( 8 Shaw, 16, 2 W. & S. 369, and 5 W. & S. 515), where an estate had been possessed for more than forty years on the entail alone, an heir claiming upon an unrecorded nomination when the succession opened to him was held preferable to an heir called by a posterior substitution in the entail. Surely in that case the recording of the nomination in the register of tailzies would be full implement of the provisions of the Act, and would effectually secure the estate against purchasers and creditors, and the deeds of the heir so succeeding. In the present case the nomination has been recorded and acted on without challenge since the year 1760, and Sir William Drummond Steuart and the whole heirs of entail have since that date made up their titles to, and have held the estates as heirs of tailzie and provision under the bond of tailzie and deed of nomination.

V. The last objection which was stated to the validity of the entail was that the estates were possessed in two portions, under two dispositions and relative Crown charters dated in 1784 and 1789, and titles following thereon, which were adverse to the bond of tailzie and deed of nomination, and that these dispositions and charters, having never been recorded in the register of tailzies, the fetters of the original entail were thereby worked off.

In 1784 the heir in possession propelled by disposition the lands of Airntully, a portion of the estates to his eldest son, who completed his title to Airntully by Crown charter of resignation and instrument of sasine thereon. By disposition granted five years afterwards—in 1789—the same heir in possession propelled the whole estates, including Airntully, to his said eldest son, who completed his title under this deed to the whole estates other than Airntully, by Crown charter and instrument of sasine thereon.

It is objected by the pursuer that the grantee in these deeds and his successors held and possessed the estates in two portions, and by virtue of these deeds only, and not under or by virtue of the bond of tailzie and deed of nomination, for upwards of forty years before Sir William Drummond Steuart made up his titles to the estates in 1839. Sir William then made up his title to the estates as heir of tailzie and provision under the bond of tailzie and deed of nomination.

In regard to the disposition and Crown charter of 1784, the pursuer maintains that a deed of propulsion of part of the estate is opposed to and unwarranted by the entail, it not being competent to the heir in possession to propel part and retain part. He further maintains that there is no cross forfeiture inserted either in the disposition or Crown charter of 1784 and Crown charter of 1789,—that is, no provision that if the heir shall contravene he shall forfeit the whole lands,—but only a provision in each deed that if he shall contravene he shall forfeit the lands mentioned in that deed.

The Lord Ordinary considers that these objections are not well founded. He is of opinion that the Act 1685, c. 22, which requires that the ‘provisions and irritant clauses shall be repeated in all the subsequent conveyances of the said tailzied estate to any of the aires of tailzie,’ has been fully complied with in these deeds, and that these provisions and clauses, which are set forth in their entirety, and as being those contained in the bond of tailzie, are therein inserted as applicable to the whole entailed estates. The disposition of Airntully in 1784 is granted with and under the whole fettering clauses of the bond of tailzie in favour of the eldest son. The Crown charter following thereon is in accordance therewith. It seems to the Lord Ordinary impossible to hold that these deeds constitute a contravention of the entail, and form a different investiture. Further, the eldest son only held part of the estate for five years. After that he held the whole, the deed of 1789 having propelled to him not only Airntully but also the whole other tailzied lands. An heir in possession may propel the estates to an heir alioquin successurus ( Craigie, 4th Dec. 1817, F. C.). No doubt the Crown only granted a charter in 1789 with reference to the lands other than Airntully, because it is supposed the heir had already obtained from the Crown a charter as regards Airntully. Being infeft in Airntully on the Crown charter of 1784, it was unnecessary to make up a second title thereto. From 1789 downwards he was by the propulsion proprietor of the whole estates as heir of entail under the whole fetters of the tailzie. The grantee in these deeds only held part of the estates for five years. If that was a contravention it only lasted for that time, and was then purged. It is thought not to have been a contravention, because none of the cardinal prohibitions were violated. The estate was not alienated to a stranger, but conveyed to the heir alioquin successurus, and that under the whole fetters of the entail. This cannot be held adverse to the entail. But even although it were held a contravention, the result of it might be, if not purged, to create a forfeiture of the granter and grantee's right, and to devolve the estate on the next heir, but not to invalidate the entail.”

The pursuer reclaimed, and pleaded—“(1) There not being an entail of the said lands and others made and duly recorded in accordance with the Act 1685, cap 22, the sale to the pursuer is binding and effectual. (2) The bond of tailzie and deed of nomination, both dated 31st May 1717, are invalid

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and ineffectual, in respect (1) That they do not contain the clauses required by the Act 1685, cap. 22, in order to constitute a valid and complete entail; and (2) In respect the same have not been properly or duly recorded in the register of entails. (3) The said bond of tailzie and deed of nomination do not together constitute a valid entail. (4) The said bond of tailzie and deed of nomination and other dispositions and deeds of entail before condescended on are, inter alia, defective in regard to the prohibition against alteration of the order of succession; and also in respect the irritant and resolutive clauses are not applicable to a prohibition against alteration of the order of succession. (5) The bond of tailzie does not contain prohibitory, irritant, or resolutive clauses affecting the heirs to whom the estates were destined, failing the entailer and heirs of his body. (6) The said deed of nomination is not executed in terms of the power to that effect reserved in the bond of tailzie; and no fetters are imposed upon any of the heirs named in the said deed. (7) Upon the execution of the said deed of nomination the whole fettering clauses of the bond of tailzie were superseded in so far as concerned the heirs of entail nominated in said deed, and these heirs were only subject to such conditions, restrictions, obligations, and irritancies, as were contained in the said deed of nomination. (8) The titles under which the successive heirs of entail have held and possessed the lands since 1720, having been adverse to the said bond of tailzie and deed of nomination. the entail is now invalid. (9) At all events, the titles under which the estate has been held by the successive heirs of entail since 1789 having been adverse to the said bond of tailzie and deed of nomination, the entail is now invalid. (10) The lands libelled having been possessed for more than forty years on titles other than the bond of tailzie and deed of nomination, or one or other of them, and under a different destination, the entail has been extinguished. (11) The whole lands which formed, or were intended to form, the entailed estate under the original bond of tailzie and deed of nomination having been possessed in two portions, under the crown charter of 1784 and 1789, and investitures following thereon, from and after the dates of said charters, the fetters imposed by the said bond of tailzie and deed of nomination were thereby worked off; and the deceased Sir William Drummond Steuart was entitled to sell said lands to the pursuer, in respect that neither the said charters nor the dispositions which formed their warrants have been recorded in the register of tailzies. (12) The deed of nomination and contracts of excambion contain no prohibitions or clauses irritant and resolutive, and are therefore invalid and ineffectual to constitute entails. (13) The said bond of tailzie and the other deeds of entail being invalid and ineffectual as regards the prohibitions against alteration of the order of succession, are invalid and ineffectual as regards all the prohibitions therein contained; and the said lands and others were subject to the deeds and debts of the said Sir William Drummond Steuart. (14) The said Sir William Drummond Steuart having sold the said lands and others to the pursuer conform to the agreement libelled, the pursuer is entitled to decree of adjudication in implement as concluded for.”

Argued for him—(1) The bond of tailzie does not fetter the heirs who took under the deed of nomination; there is no effectual prohibition against altering the order of succession, and the irritant and resolutive clauses are not effectually applied to the prohibitions. The deed of nomination is not a nomination of heirs in the usual terms; it is not a nomination introducing the heirs into the other deed. The testator contemplated a separate deed with the other irritancies, and these fettering clauses being imposed by reference merely, are not binding on the heirs taking under that destination and nomination. Under the bond of tailzie the fetters of the entail are only imposed and only intended to be imposed upon the heirs other than those referred to in the second branch of the substitution, namely, the destination of hæredes nominandi. The deed of nomination is an entail by reference. (2) The entail is not validly recorded. The thing that must be recorded is the deed of entail, no matter how many deeds it may consist of. It was intended by the Legislature that under one entry in the register of entails a creditor resorting to that register should find the whole conditions of the deed of entail. Assuming that the deed of entail is a good one, you have one part of the tailzie recorded in 1720, the other part, namely, the deed of nomination, not till forty years later. (3) Lord Cowan's judgment of 19th March 1853, though res judicata in any question inter hæredes, is not so in a question with a creditor or onerous purchaser who is not within the destination of the entail—any person being a purchaser who pays a full price and is not a trustee or representative. The pursuer is in no sense eadem persona with Sir William Steuart.

Pursuer's Authorities— Gemmell v. Cathcart, Nov. 13, 1849, 12 D. 19, H.L. 13 Dec., 1852, 1 Macq. 362; Broomfield v. Paterson, June 29, 1784, M. 15,618; Lindsay v. Earl of Aboyne, March 2, 1842, 4 D. 843; Paterson v. Leslie. July 1, 1845, 7 D. 950; Porterfield v. Stewart, May 15, 1821; 1 S. 6, (new ed.), 2 W. and S. 369, 8 S. 16, 5 W. and S. 515, 1 Ross' Leading Cases, 569; Pet. J. C. Moore, Nov. 28, 1821, 1 S. 173; Earl of Leven v. Cartwright, June 12, 1861, 23 D. 1038; Leith Dock Commissioners v. Inspector of Poor, June 17, 1864, 2 Macph. 1234, June 12, 1866, 1 Law Rep., Scotch App. 17 (Lord Chelmsford's opinion, 22); Gibson Carmichael v. Carmichael Anstruther, June 19, 1866, 4 Macph. 842; Dempster v. Dempster, June 12, 1857, 19 D. 14, 3 Macq. 62; Duke of Hamilton v. Lord C. Hamilton, Nov. 20, 1868, 7 D. 139; Lang v. Lang (Overton entail), Nov. 23, 1838, 1 D. 98; Aug. 16. 1839, M'L. and Rob. 871; Ker and Innes v. Ker (Roxburghe entail), June 23, 1807, M. App. Tailzie, No. 13, H.L. June 8, 1811; Buchan v. Erskine (Strathbrock entail), June 23, 1842, 4 D. 1430, H.L. Feb. 21, 1845, 4 Bell, 22; Murray v. Murray (Cockspow entail), Feb. 26, 1842, 4 D. 803; Horne v. Rennie, March 13, 1838, 3 S. and M. 142; Earl of Kintore v. Lord Inverurie, June 18, 1861, 23 D. 1105; April 16, 1863. 1 Macph. (H.L.) 32, 4 Macq. 520; Viscount Dupplin V. Hay, Nov. 15, 1871, 10 Macph. 89; Montgomerie v. Eglinton, Jan. 22, 1842, 4 D. 425, Aug. 18, 1843, 2 Bell's App. 149.

The defender pleaded—(1) It is res judicata by the judgment of 19th March 1853 that the deeds condescended on constitute a valid and effectual entail of the lands in question, and the said judgment is binding upon the pursuer, as deriving right from Sir William Drummond Steuart. (2) At all events the said judgment forms res judicata

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against the pnrsuer, in respect he entered into the said transaction for the purpose of aiding Sir William Drummond Steuart in his intention and purpose of transferring the said estates, or the price thereof, to the said Franc Nichols Steuart, a gratuitous disponee under his settlement, and that he was aware of the judgment of 19th March 1853; or in respect of one or other of these grounds. (3) It is res judicata by the judgment of 16th May 1871, in the action at the instance of Mr Moncrieff, who truly represented Sir William Drummond Steuart in said action, that the deeds condescended on constitute a valid and effectual entail of the lands in question, and that the said entail is a subsisting entail, and the judgment of 16th May 1871 is binding upon the pursuer. (4) The defender ought to be assoilzied, in respect that the deeds condescended on constitute a strict entail of the lands in question, and that Sir William Drummond Steuart had no power to sell or otherwise alienate the said lands. (5) The action cannot be maintained, in respect that the agreement libelled does not constitute an absolute or enforcible contract for the purchase and sale of the lands in question. (6) The pursuer is not entitled to prevail, in respect that the said agreement was entered into by the said Sir William Drummond Steuart on deathbed, and was to the prejudice of the defender, his heir. (7) The pleas founded upon the manner in which their titles were made up by heirs of entail are unfounded in fact and untenable in law; and are, separatim, excluded by prescription: (8) The pursuer's statements are not relevant nor sufficient in law to support the conclusions of the summons. (9) The original entail having been validly constituted and recorded, and the lands mentioned in the excambions having been effectually brought under the operation of the said entail, the defender ought to be assoilzied with expenses.

Argued for him—(1) The heirs who took up the estate, with one exception, made up their titles under the tailzie and not under the deed of nomination. A deed of nomination is not the origin or basis of the right of an heir of entail, it is simply the evidence of his right which he gets created under the original bond of tailzie. (2) The fetters were directed by the deed of tailzie against the hæredes nominandi according to any just construction of the bond of tailzie as a whole. (3) An entail by reference is only bad where the second deed is a substantive and separate deed; where it is intended to be, and is, the origin of a right, as being a new disposition or a fresh procuratory of resignation, but there is no law or decision which establishes that where the two deeds are intended to be one, a mere reference between these deeds is not to be made. (4) With the exception above mentioned, every one was entitled to take under the bond of tailzie as well as under the deed of nomination, and therefore it is proper to ascribe their possession to the bond and not to the deed. (5) If that be true, it is unnecessary to consider the objection as to the invalidity of the recording, but in any view the objection is not supported by either statute or authority. (6) Even supposing the pursuer was to be taken as a proper onerous purchaser, he would be subject to the plea of res judicata. That plea will a fortiori be a good one when he is in fact eadem persona with Sir William Steuart. The principle of res judicata is, that wherever a title has been acquired from a person against whom the plea would have applied, any one taking from him just uses his right, and cannot free himself from any judgment which has been got against the person from whom his title flows; in short, you cannot, by transferring your title to another, make it different from what it was when you held it yourself.

Defender's Authorities—Juridical Styles, (1826) p. 226; Norton v. Stirling, July 6, 1852, 14 D. 944; Stair, iv. 40, 16; Ersk., iv. 3, 3; Dig., 44, 2, 9, 2, and 11, 3; Voet. Pand., 44, 2, 5; Gordon v. Ogilvy, Feb. 17, 1761, M. 14,070, 2 Pat. 61; Rutherford v. Nisbet, Nov. 27, 1832, 11 S. 123; Marquis of Huntly v. Nicol, Jan. 9, 1858, 20 D. 374; Elliot v. Heirs of Stobs, May 19, 1803, F. O.

At advising—