The lands of Orangefield and Prestwickshaws, having been sold to the respondent, Mr Hunter, a question arose whether
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the parties had a power to sell. The purchaser brought a suspension of a charge for the price, alleging that the sellers could not give a good title, because the estate was held under the fetters of a strict entail, which prohibited selling. On the other hand, the appellant, Mr Dalrymple, brought an action of declarator, calling the respondent, Mr Hunter, and the heirs of entail, to have it found and declared, that Miss Macrae Macquire had full power to sell the lands in question; at least that he had such power.
These two actions were conjoined, and memorials ordered on the points.
The entail was conceived in these terms:—
“To and in favour of Miss Macrae Macquire, and the heirs male of her body, whom failing, her heirs female, whom failing, to Miss Margaret Macquire, and the heirs male and female successively of her body; whom failing, to Miss Jacobina Macquire, or Countess of Glencairn, and the heirs of her body, in like order,” &c.
It also contained this prohibition,—“That it shall not be allowable to the said Miss Macrae Macquire, nor to any of the substitutes
therein mentioned and
described by name, to sell or dispose upon any part of the lands and barony foresaid, nor to contract debts, or to do any other deed whereby the same may be evicted from any of the succeeding substitutes.” These prohibitions were enforced by irritant and resolutive clauses, and the entail was duly recorded.
The irritant clause declared, “That if the said Miss Macrae Macquire, or any of the
substitutes before mentioned and described by name, shall do on the contrary hereof, not only the deeds of contravention shall be absolutely void and null,” &c.
Miss Macrae Macquire was stated to be the institute in this entail. She was afterwards married to Mr Dalrymple. The appellant, James Dalrymple, was her son, and of course a substitute under the entail.
In 1781, she, with consent of her said son, had executed a new settlement, whereby she conveyed the estate in favour of him, and the “heirs male of his body;” and it was afterwards sold as above stated.
The appellants' plea was, That Mr Macrae, the maker of the entail, meant only to
limit the
substitutes called by name but not the substitutes
not named, and, therefore, his intention was to allow the estate to descend in fee simple to the children of the bodies of those substitutes. It was answered, that such a
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proposition could not be entertained. That it could not be meant to fetter all the substitutes
named, and at sametime to leave all their unborn issue unfettered, as such a construction would be untenable and absurd. An entail imposing prohibitions and irritances upon the substitutes called by name, and yet leaving the entail to descend in fee simple to the heirs of those substitutes, was anomalous, and totally unprecedented in the law of Scotland.
March 4, 1783.
Upon the report of Lord Stonefield, and having advised the memorials ordered, the Court pronounced this interlocutor:
“Sustain the reasons of suspension pleaded for Robert Hunter of Thurston, and the defences pleaded for the Countess of Glencairn and others, suspend the letters, assoilzie them from the declarator, and decern.”
Against this interlocutor the present appeal was brought to the House of Lords.
After hearing counsel,
