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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Syme, W.S., Trusteefor the Creditors of Mrs. Ann Ranaldson Dickson of Blairhall v. Mrs. Ann Ranaldson Dickson of Blairhall, and James Ranaldson Dickson, Esq., her Husband, for his interest [1803] UKHL 4_Paton_471 (25 April 1803) URL: http://www.bailii.org/uk/cases/UKHL/1803/4_Paton_471.html Cite as: [1803] UKHL 4_Paton_471 |
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Page: 471↓
(1803) 4 Paton 471
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND, FROM 1753 TO 1813.
[Mor. p. 15473 et App. Mor. Dict. “Tailzie,” No. 5.]
No. 62
House of Lords,
Subject_Entail — Contraction of Debt — Resolutive Clause — Disponee. —
The entail executed in this case, contained clauses prohibitory, irritant, and resolutive, against selling or contracting of debt; and the question was, whether these clauses respectively were directed against the institute, so as to include him as an heir of entail? The prohibitory and irritant clauses included him expressly by name, but the resolutive clause, which, in this instance, formed a part of the same clause or sentence with the irritant, only made reference to “the person or persons, heirs of tailzie foresaid.” In
Page: 472↓
an action at the instance of a creditor of the institute against the next heir of tailzie, Held, that as she did not represent the deceased as heir portioner, hut succeeded as heir of tailzie, she was not liable in payment of this debt, against which the entail protected.
Andrew Ranaldson, the father of John Ranaldson, executed an entail of his lands of Blairhall, to and in favour of himself in liferent, and to John Ranaldson his eldest son, and the heirs male lawfully to be procreated of his body, in fee; whom failing, to a series of heirs named in the entail. The deed contained proper and apt prohibitory, irritant, and resolutive clauses, directed against selling, alienating, wadsetting, disponing, or contracting debts, and granting bonds or other securities, heritable or moveable.
The prohibitory clause set forth, “That it shall not be lawful to, or in the power of the said John Ranaldson, my son, or any other of the heirs of tailzie above mentioned, to sell, alienate, wadset, dispone, or grant in feu, either redeemably or irredeemably, the lands herein after conveyed, or to contract debts, or grant bonds or other securities of whatever nature, whether heritable or moveable; norshall any debts the heirs of entail may be owing, &c., anywise affect or burden the lands, or any part thereof, or the heirs of tailzie succeeding therein. Nor shall the heirs of tailzie suffer or permit any decreet of certification to pass, whereby any part of the said tailzied estate may be affected or evicted in any manner of way.”
The irritant clause declared “That in case my said son, or any of the heirs of tailzie appointed to succeed to him in manner before mentioned, shall” contravene the said prohibitions, &c.
The resolutive clause did not allude to the son, but was so connected with the preceding irritant clause (which did specially mention the son) as to form one continued part of the same clause or sentence thus: But also the person or persons, heirs of tailzie foresaid, “so contravening these conditions, shall forfeit,” &c.
June 22, 1796.
The entail was recorded; and, on his father's death, John Ranaldson, the son, made up titles under the entail, and possessed until within a year of his death. Having found himself greatly encumbered with debt, he executed a trust disposition, whereby he conveyed all his means and estate, and particularly the lands in the above entail, for the purpose of paying his debts, in favour of the appellant and another. He died in a
Page: 473↓
The appellant having further acquired right to sundry debts, due by John Ranaldson, he thereupon raised an action against the respondents for payment of one third part of these debts, as charged, to enter heir portioner to him. In defence, it was pleaded, that the respondent did not represent her brother as an heir portioner, or in any other respect, but as heir of entail; and, therefore, that she was not liable for any of his debts, against which the entail sufficiently protected.
Feb. 27, 1799.
The Court pronounced this interlocutor:
“Upon the report of Lord Eskgrove, and having advised the mutual memorials for both parties, sustain the defence, assoilzie the defenders, find no expenses due, and decern.”
A bill of suspension was presented, but its prayer was refused.
Feb. 25, 1801.
Against these interlocutors the present appeal was brought.
Vide ante Vol. ii. p. 25.5.
Pleaded for the Appellant.—To subject any person who takes in virtue of any interest, to the restrictions and limitations contained in it, all and each of the prohibitory, irritant, and resolutive clauses, must clearly and distinctly apply to him, either by name or by legal description. If any one of them does not do so, he is entirely free from such restrictions and limitations. Here John Ranaldson was not an heir of tailzie, but fiar and disponee. He took directly in virtue of the entail, and not by service as heir. If, therefore, an entailer intends to impose the restrictions on him, this cannot be effectually done by restricting him in the one clause, without also restricting him in the other. By the entail in question, the resolutive clause is alone directed against heirs of entail; and although the prohibitory and irritant set out by including the son by name, yet even with reference to these clauses, there is a doubt whether he was intended to be included. In the other parts of these clauses, all allusion to him is dropped, and “heirs of tailzie” alone are named. And, as fetters are not to be extended beyond what is clearly expressed; especially against the institute or disponee in particular, in dubio, it is to be presumed that he is free from the restraints. As fiar and disponee, therefore, he is free, although even from the deed a contrary intention may appear though ineffectually expressed, as was decided in the Duntreath case, Edmonstone v. Edmonstone, House of Lords, 15th April 1771. The irritant and resolutive
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Menzies v. Menzies. Ante vol. iv. p. 242. Bruce v. Bruce. Ante vol. iv. p. 231.
Pleaded for the Respondents.—The question in the present case is not, as in the case of Edmonstone, whether the institute, or disponee, in the deed of entail, who was supposed by the entailer to be an heir of entail, shall be bound by clauses which applied only to the heirs of entail; neither is it, as in some late cases, whether the irritant and resolutive clauses are so conceived as to embrace each and all of the prohibitory clauses; but it is merely whether the institute, who is included in every one of the prohibitory clauses, and also in the irritant clause, is comprehended in the resolutive clause. It cannot be denied, in this case, that the entailer's intention is clear to impose the fetters on the disponee. Also that the prohibitory and irritant clauses are pointed expressly against him; but the appellant, in violation of all grammar, would separate the resolutive clause from the irritant clause, to which it stands annexed as part of the same sentence, and concludes that as one clause is defective, the whole must fall. But the slightest inspection will show that the irritant and resolutive clauses form but one sentence. By the words, “my said son, or any of the heirs of tailzie appointed to succeed to him,” in the former part of that article, John Banaldson, besides his being aptly and with certainty described as the entailer's son, is also plainly and correctly distinguished from the heirs of tailzie; and the words the appellant relies on, i, e. “the person or persons, heirs of tailzie foresaid,” made use of in the latter part of the same article or sentence (which the appellant calls the separate and distinct resolutive clause), refer directly to what precedes; “ the person” clearly applying to the words, “my said son,” John Ranaldson.
After hearing counsel, it was
Ordered and adjudged that the interlocutors be, and the same are hereby affirmed.
Counsel: For Appellant,
Wm. Adam,
Chas. Hay,
John Clerk.
For Respondents,
Wm. Alexander,
M. Nolan.