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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Cathcart of Genoch - Dr. Lushingto - Greenshields v. Sir John Andrew Cathcart Bart. and Curator - Lord Advocate (Jeffrey - Rutherford [1831] UKHL 5_WS_315 (18 July 1831) URL: http://www.bailii.org/uk/cases/UKHL/1831/5_WS_315.html Cite as: [1831] UKHL 5_WS_315 |
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(1831) 5 W&S 315
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1831.
1 st Division.
No. 26.
Subject_Tailzie — Stat. 1685. —
An heir of entail was in possession of estates under an entail, restraining him by effective prohibitory, irritant, and resolutive clauses from altering the order of succession, but not (as he considered) from contracting debt—circumstances in which (affirming-the judgment of the Court of Session) the debt he contracted was regarded not to be a real debt, but the whole to be a collusive and simulate contrivance, with the view not to contract a true debt, but to alter the order of succession, and therefore the transaction was reduced at the instance of the next heir of entail.
The reading of the Statute 1685, that a defect in any part of the statutory requisition of an entail vitiated the whole entail, as well in questions with creditors as inter hæredes—rejected by the House of Lords.
Sir Andrew Cathcart of Carleton, Bart., made up titles, was infeft in and possessed, as heir of entail, the estates of Carleton and others in Ayrshire. The entail was contained in a marriage contract executed in 1717, and in a procuratory of resignation, dated 1722, under reserved powers in the marriage contract. The prohibitory clause in the entail was in these words:—
“That it shall not be lawful to nor in the power of the said John Cathcart, nor any of the heirs of tailzie and provision above specified, to alter, innovate, or change this present tailzie and order of succession, or to sell, alienate, or dispone, neither irredeemably nor under reversion, nor yet to wedsett or burden with infeffments of a'rent, nor any other servitude or burden, the tailzied lands and estate above wryten whatsomever,
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or any part thereof, except in the cases and in the way and manner above provided,”
(these relating merely to family provisions,) “nor to sett tacks nor rentalls of the samen for any longer space than nynteen years, or the setter's lifetyme, and without diminution of the rentall, except in the cases of necessitie, where a sufficient tennent cannot be found to pay the whole rent, nor to doe no other fact or deed, civill or criminall, directly or indirectly, in any sort, whereby the said tailzied lands and estate, or any part thereof, may be affected, apprised, adjudged, forfaulted, or any other way evicted from the said heirs of tailzie, and this present tailzie and order of succession thereby prejudged, hurt, or changed.” The deed of entail also provided, “That the said John Cathcart and the heirs of taillie above mentioned shall bruik, enjoy, and possess the said tailzied lands and estate by vertue of this present tailzie, infeftments, conveyances, and rights to follow hereupon, and by no other right or title whatsomever.” These provisions and prohibitions are fortified by the following irritant and resolutive clauses:—
“Declaring allwayes, that if the saids heirs-female and descendents of their bodies succeeding to the saids lands and estate shall failzie to assume, bear, and use in all tyme thereafter the sirname, arms, title, and designation above wryten, or that the said John Cathcart, or any of the heirs of tailzie, shall contraveen or faill to fullfill the conditions and provisions of this present tailzie, or any one of them, any manner of way, and specially, but prejudice of the generality forsaid, by alltering or changeing the order of succession, or disponeing, selling, wadsetting, or burdening with infeftments of a'rent, or other servitudes and burdens, the saids lands, or any part thereof, otherwaies than is as above provided, or by provideing their spouses in liferent provisions of the lands and others foresaid, exceeding a third part of the free rent of the samen, or by infefting and securing their spouses, male or female, in any a'rents or annuities to be uplifted out of the saids lands, but in the lands themselves, or by burdening the samen, for provision of the daughters or younger children, with more than the sum of ten thousand merks, in manner above provided; or by granting absolute or irredeemable dispositions for payment of the saids provisions or a'rents thereof; or by granting infeftments of a'rent for the saids provisions; or by not inserting in
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every bond, securitie, or obligation which shall be granted for the sums wherew h they are allowed to provide their younger children, the particular clauses and provisions above appointed to be insert therein; or by granting tacks and rentalls otherwaies than as above; or by contracting debts, except in so far as they are empowered in manner above mentioned; or by doeing any other fact or deed, civill or criminall, whereby the s ds lands may be burdened, evicted, forefaulted, or adjudged; or by possessing of the saids lands by vertue of any other title or right than this present tailzie, infeftments and conveyances to follow hereupon; or by not inserting in their several rights and conveyances the haill conditions and irritancies hereof; or by lying out unentered, or by not paying the saids casualties of superiority, or other publick burdens, whereby the said estate may be anywayes adjudged or evicted for the samen, or by not purgeing of the saids adjudications at least two years before the legall expire: That then, and in these or any of these cases, not only all such facts and deeds committed, done, or contracted contrair hereunto, with all that may follow thereon, shall be of themselves void and null, and of no force, sikelike as if the samen had never been done, contracted, or committed, in so far as concerns the saids lands and estate above exprest, which, nor no part thereof, shall be anywaies affected or burdened therewith in prejudice of the saids heirs of tailzie and provision above specified, appoynted to succeed by vertue of these presents, which are made and granted sub modo, with and under the provisions above specified, and no otherwaies: And alse the persone or persones so contraveening, or failzing to fullfill the above-wryten conditions or irritancies or any of them, shall for themselves ipso facto lose, amitt, and forfault their right and interest in the saids lands and estate, and the samen shall become void and extinct; and it shall be lawful for the nixt heir of tailzie who would succeed if the contraveener were naturally deed, albeit descended of the contraveener's body, to purchase and obtain declarators upon the contravention or failzeing to fullfill any of the saids provisions and conditions, or to obtain themselves served and retoured, infeft and seised in the saids tailzied lands, in the same way as if the contraveener were naturally dead: In respect the right of the said contraveener is hereby declared to be void and Page: 318↓
extinct, as said is, and the right of succession of the foresaids lands and estate is hereby provided to devolve and pertain to the nixt heir of tailzie, and the persone so succeeding, and all the subsequent heirs of tailzie, shall be lyable to the same irritancies.”
Sir Andrew being anxious to alter the destination in the entail and procuratory, and being led to think that this might be accomplished in consequence of a supposed defect in the prohibition against contracting debt, in March 1821 consulted counsel on these points, and was assured in answer that the entail did not contain proper and effectual prohibition against the contraction of debt, and that Sir Andrew was entitled to come under an obligation of debt, which obligation would be effectual against the property. Counsel also described the method which Sir Andrew should adopt in order to hold the estates unfettered by the entail.
July 6 and 25, 1717.
Nov. 9,—
Aug. 17, 1772.
May 9, 1759.
July 24, 1729.
April 7, 1784.
Sir Andrew Cathcart submitted the following memorial to Mr. John Clerk, advocate:—
“By contract of marriage, entered into of these dates, between John Cathcart younger of Carleton, the memorialist's father, with consent of Sir Hew Cathcart of Carleton, Baronet, the father of John, on the one part, and Katharine Dundas, daughter of Robert Dundas of Arniston, on the other part, Sir Hew, in contemplation of a marriage which was afterwards entered into between his son and Miss Dundas, became bound to infeft and seise the said John Cathcart and the heirs-male to be procreated of the said marriage, whom failing, the other heirs and substitutes therein mentioned, in his lands and estate of Carleton and others. The interest of the persons called to the succession under this deed is protected by most of the prohibitory, irritant, and resolutive clauses usually inserted in entails at that period; and it was duly recorded in the register of tailzies during the lifetime of Sir Hew. By this deed power is reserved to Sir Hew to alter or innovate this present tailzie and order of succession above expressed, except in so far as concerns the said John Cathcart, and the heirs male or female of this present marriage, to whose prejudice he is hereby bound and obliged to make no alteration. Accordingly, in exercise of this reserved power, Sir Hew executed a procuratory of resignation, bearing reference to the contract of marriage, and which is declared to be granted under
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all the reservations, conditions, limitations, &c. expressed in that deed, by which he made certain alterations in the order of succession. This procuratory has not been recorded in the register of tailzies. It may be mentioned, historically, that the marriage between John Cathcart and Katherine Dundas was dissolved by the death of the latter in 1722, and that Sir Hew Cathcart died in 1723. Of this date, John Cathcart, then become Sir John, contracted a second marriage with Elizabeth Kennedy, eldest daughter of Sir John Kennedy of Cullean, of which marriage the memorialist is the heir-male, and is in right of the estate under the destination in the contract of marriage, and that in the procuratory of resignation. Sir John Cathcart, the institute, never made up titles to the estate, but possessed it in apparency from the death of his father in 1723 till his own death in 1759. On that event he was succeeded by his eldest son John, who for some time made up no titles; and it is known to the memorialist that he was very anxious to avoid completing titles under the entail. He was advised, however, by eminent counsel, that it was hazardous to trust to the negative prescription, which had run against the entail, as a protection against a declarator of irritancy, whether he should continue to possess on his apparency, or should overlook the entail, and serve heir to his grandfather Sir Hew. He therefore expede a general service, as heir-male of the body and heir of tailzie and provision of Sir John Cathcart his father, in terms of the contract of marriage, and the procuratory of resignation executed by Sir Hew; and having obtained charters of resignation on that procuratory, he was duly infeft, under all the conditions, provisions, &c. expressed in the entail. Sir John, the second, died in the month of March 1783, and was succeeded by the memorialist, who, of this date, expede a special service, as heir-male and of tailzie and provision of his brother Sir John, in terms of the contract of marriage and the procuratory of resignation; and was infeft, under all the conditions, provisions, &c. expressed in these deeds. The memorialist is very anxious to alter the destination contained in the contract of marriage and procuratory of resignation in some respects; but he understands that the prohibitory, irritant, and resolutive clauses in the contract of marriage are sufficient to prevent him from accomplishing this Page: 320↓
object, either by a new destination, or by a sale. He is advised, however, that there is no effectual prohibition against the contraction of debt, and that his object may be attained in that way. The only clause which aims at a direct prohibition against the contraction of debts in general is the following:—Providing also, that it shall not be lawful to, nor in the power of the said John Cathcart, nor any of the heirs of tailzie and provision above specified, to alter, innovate, or change this present tailzie and order of succession, or to sell, alienate, or dispone, neither irredeemably nor under reversion, nor yet to wadset or burden with infeftments of annual rent, nor any other servitude of burden, the tailzied lands and estate above written whatsomever, or any part thereof, except in the cases and in the way and manner above provided; nor to set tacks nor rentals of the samen for any longer space than nineteen years, or the setter's lifetime, and without diminution of the rental, except in the cases of necessity, where a sufficient tenant cannot be found to pay the whole rent; nor to do no other fact or deed, civil or criminal, directly or indirectly, in any sort, whereby the said tailzied lands and estate, or any part thereof, may be affected, apprised, adjudged, forefaulted, or any other way evicted from the said heirs of tailzie, and this present tailzie and order of succession thereby prejudged, hurt, or changed. The irritant and resolutive clauses are in the following terms:—Declaring always, that if the saids heirs-female, and descendents of their bodies succeeding to the saids lands and estate, shall failzie to assume, bear, and use, in all time thereafter, the sirname, arms, title, and designation above written, or that the said John Cathcart, or any of the heirs of tailzie, shall contraveen, or fail to fulfil the conditions and provisions of this present tailzie, or any one of them, any manner of way, and specially, but prejudice of the generality foresaid, by altering or changing the order of succession, or disponing, selling, wadsetting, or burdening with infeftments of annual rent, or other servitudes or burdens, the saids lands, or any part thereof, otherwise than as it is above provided, or by providing their spouses in liferent provisions of the lands and others foresaid, exceeding a third part of the free rent of the samen, or by infefting and securing their spouses, male or female, in any annual rents or annuities to be uplifted out of the said lands, Page: 321↓
but in the lands themselves, or by burdening the samen, for provision of the daughters or other children, with more than the sum of ten thousand merks, in manner above provided, or by granting absolute or irredeemable dispositions for payment of the said provisions or annual rents thereof, or by granting infeftments of annual rent for the said provisions, or by not inserting in every bond, security, or obligation which shall be granted for the sums wherewith they are allowed to provide their younger children the particular clauses and provisions above appointed to be insert therein, or by granting tacks and rentals otherwise than as above, or by contracting debts, except in so far as they are empowered in manner above mentioned, or by doing any other fact or deed, civil or criminal, whereby the said lands may be burdened, evicted, forefaulted, or adjudged, or by possessing of the said lands by virtue of any other title or right than this present tailzie, infeftments, and conveyances to follow hereupon, or by not inserting in their several rights and conveyances the haill conditions and irritancies hereof, or by lying out unentered, or by not paying the said casualties of superiority, or other public burdens, whereby the said estate may be anywise adjudged or evicted for the samen, or by not purging of the saids adjudications, at least two years before the legal expire; that then, and in these or in any of these cases, not only all such facts and deeds committed, done, or contracted contrair hereunto, with all that may follow thereon, shall be of themselves void and null and of no force, sicklike as if the samen never had been done, contracted, or committed, in so far as concerns the saids lands and estate above expressed, which, nor no part thereof, shall be anyways affected or burdened therewith, in prejudice of the saids heirs of tailzie and provision above specified, appointed to succeed by virtue of these presents, which are made and granted sub modo, and under the provisions above specified, and no otherways; and also the person or persons so contravening or failing to fulfil the above-written conditions or irritancies, or any of them, shall, for themselves, ipso facto, lose, amit, and forefault their right and interest in the saids lands and estate, and the samen shall become void and extinct, and it shall be lawful for the next heir of tailzie, who would succeed if the contravener were naturally dead, albeit descended of the contravener's body, to Page: 322↓
purchase and obtain declarators upon the contravention, or failing to fulfil any of the said provisions and conditions, or to obtain themselves served and returned, infeft and seised in the said tailzied lands, in the same way as if the contravener were naturally dead, in respect the right of the said contravener is hereby declared to be void and extinct as said is, and the right of succession of the foresaid lands and estate is hereby provided to devolve and pertain to the next heir of tailzie; and the person so succeeding, and all the subsequent heirs of tailzie, shall be liable to the same irritancies. It may no doubt be inferred, with perfect certainty, both from the foregoing clauses and from the general tenor of the deed, that it was the intention of parties to prohibit the contraction of debt. The memorialist, however, conceives that this has not been effectually done, and he desires to have the advice of counsel on this point, and also, if such shall be the opinion of counsel, to be directed as to the steps necessary to be taken by him for attaining, by means of the contraction of debt, the power of regulating the succession to the estate. On the other hand, in the event of the memorialist not adopting such measures as may be recommended for defeating the entail, or not living to complete them, he is desirous, so far as in his power, to make such arrangements as are likely to deprive his successors of the power of defeating the entail. It has already been mentioned, that the procuratory of resignation, executed by his grandfather Sir Hew Cathcart, has not been recorded in the register of tailzies. On this procuratory all the subsequent titles to the estate have been founded,—Sir John Cathcart, who first made up titles under the entail, having resigned the estate in virtue of this procuratory; and the memorialist has inserted the series of heirs which it contains in his service, and subsequent titles. The memorialist is apprehensive, therefore, that unless it is recorded, some future heir may be enabled to sell the estate. This he proposes to obviate by having the procuratory of resignation recorded in the register of tailzies. And if it is competent to him to impose new restrictions on his successors, to the effect of prohibiting them from contracting debt, he proposes to do so by executing a supplementary deed. “In these circumstances, the memorialist wishes to have the opinion of counsel, in answer to the following queries:—First,
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is it the opinion of counsel that the entail contains no proper and effectual prohibition against the contraction of debt? Second, if such shall be the opinion of counsel, what are the steps which he ought to adopt for enabling him to accomplish, as his ultimate object, the power of altering the order of succession to his estate? In considering this query, it is proper counsel should be aware that the memorialist has a separate estate of considerable value, both in land and money, entirely at his own disposal; and that he has little or no debt, and does not wish to borrow money to an extent, much less to an extent approaching to the value of his entailed estate. Counsel is therefore requested to say, whether a gratuitous bond, or other obligation, will be sufficient to form a foundation for diligence to affect the entailed estate? Third, is it advisable that the memorialist should immediately apply to the Court of Session for authority to record the procuratory of resignation in the register of tailzies? Fourth, is it in the power of the memorialist, at present, to remedy any defect in the entail by executing a deed strictly prohibiting his successors from contracting debt, and fortifying such prohibition with irritant and resolutive clauses?”
Mr. Clerk answered:—
“Query 1. The entail contains no proper and effectual prohibition against the contraction of debt. Query 2. I doubt whether a gratuitous bond, or other obligation, can afford a sufficient means of affecting the entailed estate, unless the obligation is absolute, and truly intended to bind, and actually binding, upon the granter, because the diligence intended to carry off the entailed estate, proceeding upon an obligation merely in form, and not binding upon the granter, would probably be considered as collusive, and of no effect against the heirs of entail. Therefore I cannot advise the memorialist to rely upon any such plan. A true debt must be contracted, whether the obligation is onerous or gratuitous. An onerous obligation will be most advisable in such a case; because, though intended merely for the purpose of defeating the entail, it would nevertheless be a real and true transaction, just as a sale, where selling is not prohibited, though the entail may be perfect in other respects, will defeat it, and the heir of entail, after having sold the estate, may buy it back, and hold it by a title in fee-simple. It occurs to me that the
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memorialist may, without much difficulty, carry his purpose into effect. He must no doubt legally contract a debt, and I understand that it must be a very large debt, for it must be equal to, or larger than, the value of the estate. But I think that a debt, even to that extent, may be legally contracted without much trouble or inconvenience either to the memorialist or to the creditor. A true debt would be contracted by a common exchange of bills between the memorialist and a friend, upon which the latter would become creditor to the memorialist for the bill given to him in exchange, and would be entitled to adjudge for his security. The passages in the entail relative to adjudging do not and cannot apply to adjudications for debt, because the contraction of debt not being prohibited, the application of these passages is necessarily confined to other deeds or transactions, upon which adjudication would be competent. But even a direct prohibition against adjudication for debt would be altogether nugatory in such an entail, because the contraction of debt being allowed, all its consequences must necessarily follow. There may be other modes of contracting debt to a sufficient extent for defeating the entail; and it signifies nothing what the mode is, if a true debt to a sufficient extent shall be contracted. The next step to be taken after the adjudging is, with all expedition, to pursue a sale of the estate. I am not aware of any ground upon which that measure can be opposed. When the estate comes to be sold, it should be purchased, either by the creditor, or by some other person, who will reconvey to the memorialist. Query 3. This is not of much consequence; but I think it would be proper to record the procuratory of resignation in the register of tailzies. Query 4. I consider it to be quite established, that the proprietor of an estate, over which there is a subsisting entail, with strict clauses of any kind, has no power to make a new entail of the estate, without previously extinguishing the old entail. Edinburgh, 19th March 1821. Referred to in my opinion, 13th July 1821.”
Thereafter Mr. Clerk gave the following additional opinion on the same memorial:—
“Upon reconsidering the plan of breaking the entail of Carleton, so as to enable Sir Andrew Cathcart to settle the estate by a new destination, it appears that the plan may be completed sufficiently to exclude the
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present heirs of entail, and to establish a right in the heirs of the new destination, by the measures following, or measures of a similar nature. The debt may be contracted by exchange of bills, or other securities. It may be contracted even by gratuitous obligations; but it seems more advisable to establish the debt upon onerous considerations. The debt being contracted, adjudication will follow in common form, and it should be completed by a charter and infeftment. A burden equal to or beyond the value of the estate being thus created, I apprehend that Sir Andrew, who had power to contract the debt, will be under no obligation to discharge in any question with the heirs of entail. Sir Andrew will have power to let the adjudication remain a burden upon the entailed estate till the legal expire, and a right of property is established in the creditor, which of course may be made irredeemable. The burden being constituted, Sir Andrew may purchase it from the creditor, and hold it on his own account, taking an assignation, in place of paying the debt, and taking a discharge and renunciation. Sir Andrew will then possess the estate upon the adjudication as his title. It is easy to see, that the same money that will be paid by Sir Andrew for the adjudication will be employed by the adjudger in discharging the bill, or other security which he had given to Sir Andrew. That bill or security should, in the meantime, be passed by Sir Andrew to a third party. There seems to be no other management necessary in making these transactions, but for the purpose of preventing the debt contracted by Sir Andrew from being extinguished. When Sir Andrew obtains a sufficient right to the adjudication, it will be in his power to make a new entail of the lands, attending only to the nature of the title. It will probably be necessary to insert some clauses, providing for the imperfection of a title by adjudication. Edinburgh, 13th July 1821.”
Thereupon Sir Andrew on the 25th of the ensuing September signed, as acceptor, a bill for 150,000 l. payable ten days after date at the office of Messrs. Donaldson and Ramsay, W. S. Edinburgh, (the men of business of Sir Andrew,) in favour of Quintin Kennedy, a friend of Sir Andrew's, as the drawer, but to whom he was not at the time at all indebted. On the same day Quintin Kennedy accepted in favour of Sir Andrew a bill
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The bill drawn by Kennedy was protested for nonpayment, and the protest registered in the following October; and thereafter he raised a summons of adjudication for adjudging the whole entailed estates, on payment and security of this debt, and obtained decree of adjudication on the 15th January 1822, no appearance or opposition having been made by Sir Andrew. The decree having been extracted, Kennedy presented a signature of adjudication in Exchequer, and thereupon obtained a charter of adjudication, by which his Majesty, as Prince, disponed, in the usual words of style, “dilecto nostro Quintin Kennedy de Drumellan, Armigero, ejusque hæredibus et assignatis hæreditarie, sed sub reversione secundum legem,” the lands and barony of Carleton. The quæquidem of the charter correctly narrated the adjudication on which it proceeded. Kennedy was thereafter infeft, and his sasine recorded, and he thus completed a feudal title to the principality lands adjudged. The title to other lands, of which Sir Andrew was the superior, was also completed by letters of horning, at Kennedy's instance, against superiors, and the letters and execution were recorded. Sir Andrew Cathcart thereupon granted a charter of adjudication to Kennedy, “and his heirs and assignees, heritably, but under reversion, in terms of law,” of these lands. The quæquidem narrated the adjudication in the same terms as in the Crown charter of the Carleton lands. Kennedy was infeft on this charter, and the sasine recorded. The sasines were recorded on the 11th February. All this having been effected, Kennedy on the 13th of February conveyed the adjudication and the lands adjudged to Sir Andrew. The price is stated at 95,000 l., but no money actually was paid down by the party, and the deed was engrossed on a corresponding ad valorem stamp. Thereafter the bill for 150,000 l. in the hands of Major Shaw was delivered to Kennedy and cancelled. The disposition proceeded upon the narrative of the bill and adjudication, and the various steps which had been taken to complete the title to the lands; and it is added, “and seeing that the said Sir Andrew Cathcart has instantly made payment to me of the sum of 95,000 l. sterling, as the price of the lands and
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“Therefore, wit ye me, the said Quintin Kennedy, to have sold and disponed, as I do hereby sell, alienate, and dispone from me, my heirs and successors, to and in favour of the said Sir Andrew Cathcart, and his heirs of line and assignees whomsoever, heritably and irredeemably, all and whole the lands and barony of Carleton,” &c.
Then follows a description of the lands, as contained in the decree of adjudication. In the procuratory of resignation Kennedy resigns the lands in favour “and for new infeftment of the same, to be made, given, and granted to the said Sir Andrew Cathcart, and his heirs of line, and assignees, heritably, in due and competent form.” The assignation to the title-deeds contains a special right to the decree of adjudication, and there is a clause of warrandice from facts and deeds, and an obligation to infeft by double holding and precept, in the usual terms. Under these deeds Sir Andrew Cathcart completed his title by infeftment in November 1822, and a charter of confirmation in July following. The expense of these proceedings was ultimately charged of and paid by Sir Andrew alone. He was in affluent circumstances when he accepted the bill in place of Kennedy, who made no claim for the difference between its amount and the sum stated as the price of the right to the adjudication.
No ostensible change took place in the possession of the estates; but Sir Andrew continued to enjoy them, under the original titles, until his death on the 13th April 1828. On this event a sealed paper was produced by his agent, containing a new deed of entail, dated January 29, 1827, by which Sir Andrew disponed the whole of the estates in the original entail, together with the fee-simple lands which he had himself acquired, to himself and the heirs male of his body, whom failing the heirs female of his body, whom failing to John Cathcart of Genoch, a remote substitute under the original entail, and postponed John Andrew Cathcart, who, on Sir Andrew's death, had it not been for the above measures, would have taken the estates, under the original entail, to a distant part of the substitution. By this new entail Sir Andrew bound himself, and his heirs and successors
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John Cathcart of Genoch having made up titles under the new entail, Sir John Andrew Cathcart, the heir entitled under the original entail to succeed to Sir Andrew, and who had made up titles, accordingly raised an action of reduction, concluding for reduction of the 150,000 l. acceptance, on which the adjudication had been led—the decree of adjudication—the horning against superiors—the charters of adjudication, &c., including each subsequent deed in the above-mentioned progress of suits, and the new deed of entail, except in relation to the lands which had belonged to Sir Andrew in fee-simple.
The Lord Ordinary (8th December 1829) found, “That the deed of marriage contract and entail, of date the 6th and 25th July 1717, confirmed by the procuratory of resignation of date 17th August 1722, both narrated in the summons and condescendence, does not contain any general prohibition duly expressed in the prohibitory clause, whereby it is declared not
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The defender reclaimed against the findings of the interlocutor generally, and prayed the Court “to recal that interlocutor, to repel the reasons of reduction, assoilzie the petitioner (defender), and find him entitled to expenses.”
The pursuer, on the other hand, reclaimed against the interlocutor, in so far as it “finds that the deed of marriage contract and entail, of date the 6th and 25th July 1717, confirmed by the procuratory of resignation, of date 17th August 1722, both narrated in the summons and condescendence, does not contain any general prohibition duly expressed in the prohibitory clause, whereby it is declared not to be lawful to the heirs of tailzie to contract debts, by which the estate may be adjudged or evicted, and that this defect in the prohibitory clause is not supplied by any implication from other parts of the deed;” and in so far as it “finds, that if a true debt had been contracted by the late Sir Andrew Cathcart, and an adjudication proceeding thereon had been bonâ fide completed by the creditor, the said Sir Andrew Cathcart might not have been barred from afterwards acquiring the title by adjudication, so constituted in the person of the creditor, or from keeping up that title in his own person, and disposing thereof, in respect that the defect of this entail is in the prohibitory clause, and that the heirs were not laid under any obligation not to contract debt.” And the pursuer prayed the Court
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The defender appealed against the Lord Ordinary's interlocutor, except in so far as it finds that the marriage contract and procuratory of resignation do not contain any effectual prohibition against the contraction of debt by which the estate may be adjudged or evicted, and against the interlocutor of the Inner House.
Immediately on the death of Sir Andrew and the production of the new entail, an arrangement, about the full extent and meaning, however, of which, parties differed, was entered into, by the compulsory powers whereof a person was authorized to take charge of the estates for the benefit of all concerned; the defender endeavouring to intromit with the rents, on the ground that he was in possession, as a good title. The pursuer petitioned the Court to sequestrate the entailed estates, and appoint a factor to uplift the rents; and their Lordships (11th February 1829) sequestrated the lands and estates, and appointed William Johnston judicial factor thereon. Against this
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Appellant.—A deed conveying heritage is not effectual as an entail, unless it be framed in strict conformity to the act 1685, allowing entails under certain conditions; and if not so framed, the party favoured and his heirs are entitled to enjoy, dispose of and burden the property at pleasure, as proprietors thereof in fee-simple. By the feudal law no vassal had a right to make an entail of his lands. The charter by his superior regulated the succession of the vassal, and he could not substitute any person in the place of those heirs whom the superior had selected to be in their order his vassals. But in the progress of society important changes took place. The first step was to allow the creditors of the vassal to attach his lands, as a satisfaction for the debts due to them; and the superior was bound by statute to receive such creditors as his vassals, on payment of a fine or composition to compensate for this departure from the order of succession which had been laid down by him. After this vassals were allowed to alienate their lands on payment of a similar fine to the superior; because, after adjudication for debt was permitted, the vassal, when he intended an entire alienation, could easily effect his purpose by receiving the price as a loan; in virtue of which the purchaser could, in the character of creditor, adjudge the lands and compel the superior to receive him as his vassal. The last step in the progress was to allow the vassal to alter the order of succession prescribed in his charter, and this was a natural consequence of the preceding changes, or rather was comprehended under the general right of alienation. Thus vassals caine at length to have vested in them the full right of property, the jus utendi, fruendi, libereque disponendi. But after vassals had thus become truly proprietors of their lands, they became desirous of limiting the rights of their successors. This led to what is properly called an entail, that is, the destination of an estate under certain restraints and provisions. These were not only negative, but positive; but, as their main object was to prevent the estate from being carried away from the heirs called to the succession, they were chiefly
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Dr. Lushington.—I do not know that I have any decisions to cite, my Lord.
(2.) The procuratory of resignation in 1722 is the fundamental title of both parties;
* it however could only have effect
_________________ Footnote _________________ * The appellant's argument on the procuratory of resignation is founded on the following progress of titles. By the contract of marriage the destination of the estates was to and in favour of “John Cathcart, and the heirs-male to be procreate of the marriage betwixt the said Mrs. Catherine Dundas and him; which failing, his heirs-male of any other lawful marriage; which failing, to the heirs-male to be procreate of the said Sir Hugh Cathcart his own body; which failing, John Cathcart, eldest son of the deceased Andrew Cathcart, brother-german of the said Sir Hugh, and the heirs-male of his body; which failing, Andrew Cathcart, his second son, and the heirs-male of his body; which failing, Hugh Cathcart, his third son, and the heirs-male of his body; which failing, the heirs-female to be procreate of the said John Cathcart, (then younger of Carleton,) of this or any other marriage; which failing, the heirs-female to be procreate of the said Sir Hugh his own body; which failing, John Cathcart of Genoch, and the heirs-male of his body; which failing, the heirs-female of the said deceased Andrew Cathcart his body;—all which failing, the said Sir Hugh Cathcart, his nearest and lawful heirs whatsoever.” The contract, however, specially provided and declared, that Sir Hugh Cathcart should have full power and liberty “to alter or innovate this present tailzie and order of succession above exprest, except in so far as concerns the said John Cathcart, and the heirs-male or female of this present marriage, to whose prejudice he is hereby bound and obliged to make no alteration.” The contract was recorded in the register of tailzies. Sir Hugh Cathcart exercised the reserved power by executing, in 1722, a procuratory of resignation. This deed proceeds on the narrative of the destination in the contract of marriage, and the reserved power to alter and innovate the same, and his resolution in some part to alter the order of succession contained in the said contract of marriage and taillie, without hurt or prejudice to the said taillie as to any other points not hereby expressly altered. He grants authority to resign the lands in favours and for new infeftment of the samen, to be given and granted to the said John Cathcart, my son, and the heirs-male to be procreat of his body; which faillieing, to the heirs-male of the body of me the said Sir Hugh Cathcart; wliich faillieing, to Margaret Cathcart, eldest daughter procreat betwixt the said John Cathcart, my son, and the said deceast Mrs. Catherine Dundas, and the heirs-male of the said Margaret Cathcart her body; which faillieing, to Ann Cathcart, second daughter procreat betwixt the said John Cathcart and Mrs. Catherine Dundas, and the heirs-male of her body; which faillieing, to Andrew Cathcart, second son of the deceast Andrew Cathcart, merchant in Glasgow, my brother, and the heirs-male of his body; which faillieing, to Hugh Cathcart, third son of the said Andrew Cathcart, my
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_________________ Footnote _________________
brother, and the heirs-male of the said Hugh's body; which faillieing, to the nearest heirs-female, without division, of the said John Cathcart, my son, his body; which faillieing, to the eldest heir-female to be procreat of the body of me the said Sir Hugh Cathcart; which faillieing, to John Cathcart of Genoch, and the heirs-male of his body; all which faillieing, to me the said Sir Hugh Cathcart my nearest and lawful heirs and assignees whatsomever.” The procuratory contains a warrant for recording it in the register of tailzies, but it was not recorded. It did not specify the limitations, conditions, and provisions enjoined by the marriage contract; it merely provided that the lands shall be holden “with and under the powers, faculties, reservations, limitations, burdens, irritancies, and provisions in favour of or burdening the heirs of taillie named in the said contract, which I appoint to be held as expressly repeated in this present nomination as a part thereof, and to be insert in the charter and infeftments to follow hereupon, and to affect, restrict, limit, burden, and enable the heirs mentioned in this present nomination and procuratory, in the same way as they were to have affected, restricted, limited, burdened, and enabled the heirs of taillie contained in the substitution insert in the said contract of marriage.” Farther, it contained a new condition and irritancy which was not in the contract of marriage, namely, “that in case, by failure of heirs-male of my said son's body, my said lands and estate shall devolve upon the said Margaret or Ann Cathcarts, my said son's daughters, and the heirs-male of their bodys, that the said heirs-male, as well as the other heirs-female, who may succeed by virtue of this nomination, be obliged to assume and use the name and arms of Cathcart, and title of Carleton, otherwise their right shall be irritat, and the estate devolve upon the next heir who would succeed, if they were naturally dead.” John Cathcart younger did not make up any title after his father's death, but possessed the estate, during his own life, merely as apparent heir of Sir Hugh Cathcart. After the death of his first wife, Catherine Dundas, he entered into a second marriage, by which he had several sons. He died in 1759, and was succeeded by his eldest son, also named John, who, in 1765, expede a general service “as nearest and lawful heir-male of the body of John Cathcart his father, and as such, nearest and lawful heir of tailzie and provision to him, in terms of a contract of marriage entered into between him, with consent of Sir Hugh Cathcart of Carleton, Bart., his father, on the one part, and Mrs. Catherine Dundas, daughter of Robert Dundas of Arniston, one of the Senators of the College of Justice, with consent of her father, on the other part, dated 6th and 25th July 1717; as also in terms of a procuratory of resignation granted by the said deceased Hugh Cathcart, in relation to said contract of marriage, dated 17th August 1722.” He then, in 1765, resigned the lands of Carleton, and others held of the Prince, on the above procuratory of resignation, and expede a charter of resignation in favour of himself and the other heirs called to the succession by the said procuratory, and on this charter was infeft. Having acquired from the superiority of the lands of Waterhead and Killochan, he made up his title to the dominium utile of these lands by resigning in 1768 upon the procuratory of resignation, and the retour of his service, for new infeftment, in favour of himself and the other heirs of tailzie called to the succession in the order prescribed by that procuratory; and he thereafter, of the same date, granted a charter of resignation in favour of myself and the other heirs of tailzie called to the
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_________________ Footnote _________________
succession by Sir Hugh's procuratory, upon which he was infeft. Under these titles he possessed the estates till his death in 1783. Having died without heirs of his body, he was succeeded in his estate by his immediate younger brother, Sir Andrew Cathcart (the appellant's author), who was served heir in special, as heir male of tailzie and provision to his brother, in the lands and barony of Carleton, but with and under the “provisions, conditions, limitations, clauses irritant and resolutive, contained in the contract of marriage between the deceased Sir John Cathcart of Carleton, Bart., (father of the said Sir Andrew Cathcart, therein designed John Cathcart younger of Carleton,) with consent of Sir Hugh Cathcart his father, on the one part, and Mrs. Catherine Dundas, daughter of Robert Dundas of Arniston, one of the Senators of the College of Justice, with consent of her said father, on the other part, dated 6th and 15th July 1717, and in a procuratory of resignation granted by the said Sir Hugh Cathcart relative to said contract, dated 17th August 1722.” Upon the retour of his service, Sir Andrew obtained a precept from Chancery, and was infeft, and having made up titles to the Crown superiorities of the lands of Waterhead and Killochan, he granted a precept of clare constat in favour of himself, and the other heirs of tailzie called to the succession by Sir Hugh Cathcart's procuratory, upon which he was infeft. The respondent is descended from Hugh Cathcart, the youngest son of Andrew Cathcart, who was called to the succession by the procuratory of resignation on the failure of Margaret and Anne Cathcart, and the respective heirs-male of their bodies, and of Andrew Cathcart, second son of the respondent's ancestor Andrew Cathcart, and the heirs-male of his body. In 1828 he expede a general service, which has been retoured to Chancery, as “propinquior et legitimus hæres talliæ et provisionis dict. quondam Domini Andreæ Cathcart de Carleton, nepotis fratris ejus abavi, in terminis syngraphiæ talliæ execuæ per dict. Hugonem Cathcart, quam content. in contractum maritagii fact. inter, &c.; ac etiam in terminis procuratoriæ resignationis per dict. Dominum Hugonem Cathcart in favorem dict. Domini Joannis Cathcart, ejus filii, aliorumque personarum postea mentionat. de data decimo septimo die mensis Augusti anno millesimo septingentesimo et vigesimo secundo, recordat. in libris Sessionis quarto die mensis Octobris anno millesimo septingentesimo sexagesimo octavo. Per quam syngrapham talliæ primam mentionat. dict. Dominus Hugo Cathcart resignavit terras aliasque inibi mentionat, &c. et per quam procuratoriam resignationis supra mentionat. dict. Dominus Hugo Cathcart, virtute potestatum reservatarum illi per dict. syngrapham talliæ, in tantum mutavit destinationem particulariter antea script. quam vocare tam hæredes talliæ proxime post dict. Joannem Cathcart, filium ejus, hæredes masculos ex corpore ejus dict. filii; quibus deficien. &c.”
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Dr. Lushington.—The distinction between heirs and strangers, in relation to entails, is not authorized by the act 1685, which, on the contrary, declares, that only on the due observance of the prescribed requisites, an entail shall be effectual against heirs, as well as creditors and singular successors. No doubt the Court of Session has sometimes made a distinction; but their decisions proceeded on the erroneous notion that, though an entail be not executed in terms of the statute, its provisions and conditions nevertheless create a jus crediti in favour of the substitutes, which the heir in possession cannot disappoint by any voluntary deed. This notion, however, has been exploded by the judgment in the Ascog case. There the Court of Session, holding that the substitutes had a jus crediti, decided in their favour. But this House reversed their decision; and thus, in substance, determined that the distinction between heirs and strangers was without foundation.
(3.) The marriage contract, and the subsequent procuratory of resignation, do not constitute an effectual entail in terms of the statute, inasmuch as they do not contain a prohibition against contracting debt, by which the estate may be apprised, adjudged, or evicted; and therefore Sir Andrew Cathcart enjoyed
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(4.) Even if the defect in the entail were not sufficient to invalidate the contract 1717 as an entail, yet, in consequence of that defect, Sir Andrew Cathcart, being entitled to contract debt, did exercise his right by contracting a just and true debt to Quintin Kennedy; and the said debt having been so contracted was a sufficient ground for the adjudication of the estate by Kennedy; and the adjudication, and the titles following thereon, having ultimately vested the same in Sir Andrew Cathcart, he had a right to execute the entail now brought under reduction. The question then arises, whether, at the date of the adjudication, a debt was truly owing by Sir Andrew Cathcart to Mr. Kennedy? Now, when Kennedy accepted and delivered a bill to Sir Andrew for a sum equal to that in the bill by Sir Andrew to him, he gave full value for the latter, and by consequence he was a legal creditor of Sir Andrew for its amount. The circumstance that there was an exchange of bills did not detract from the jus crediti vested in each of the parties by the transaction. In what are termed cross-bills the bills do not mutually extinguish each other, but each bill constitutes a debt due by the acceptor to the opposite party. Each may indeed be the subject of compensation or set-off in certain cases, but each subsists as a distinct debt till compensation or set-off be judicially pleaded and sustained. Assuming, then, that a just and true debt was constituted by Sir Andrew's acceptance, Kennedy, as the drawer and holder of the bill, was entitled to attach the real and personal estate of his debtor by the ordinary forms of diligence; and, in particular, as the entail of Carleton was defective, because it did not contain an effectual prohibition against contracting debt, Mr. Kennedy was entitled to adjudge that estate. This was accordingly done by him, and he completed an unexceptionable feudal title to the lands which he had adjudged.
The appellants are not bound to inquire into the ultimate object of Sir Andrew Cathcart; his immediate intention was to constitute a just and true debt. He did so, and that is enough. Restraints in entails are infringements on the right of property;
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Respondents.—(l.)The doctrine that a contract or deed conveying heritage, and importing to be an entail, is ineffectual, unless it be framed in strict conformity to all the provisions of the Act 1685, and if not so framed, the party favoured by such deed is entitled to enjoy, dispose of, and burden the property at pleasure, as proprietor thereof in fee-simple, has no foundation on the statute, and is totally unknown in the law and practice of the law of Scotland.
* It was only in a question with creditors that doubts were entertained of the validity of entails at common law, but it never was disputed that among heirs the deed was valid and effectual. The statute itself, which authorizes entails, “with such provisions and conditions as they (His Majesty's subjects) shall think fit,” puts an end to the question; accordingly, our books are full of authorities, cases, and decisions which could not have occurred had the appellant a shadow of support for his reading. The whole argument is an ingenious trifling with the settled law of Scotland. The case of Ascog neither supports the doctrine that an entail defective in one point is inoperative in all, or that the distinction between questions with creditors and with heirs inter se has been departed from; on the contrary, the successful party in that case maintained that the Ascog entail was complete in itself, and that there was no
_________________ Footnote _________________ * The respondents alleged that the appellants had not, although it was their first plea in law, ventured to open it to the Court below; but had, on adjusting the terms of the interlocutor of the Court, moved the Court to add to their judgment, “and further, the Lords repel the first plea in law stated for the defender,” in order that it might be competent to discuss the point in the House of Lords.
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(2.) The argument maintained on the procuratory of resignation is unfounded. The reserved power to alter could not affect John Cathcart, and the heirs male or female of his marriage; as far as related to them, the fetters were articulate and directly imposed, and the tailzie itself was registered. The titles were made up on both deeds, because Sir Andrew and the respondent were heirs, both under the marriage contract and the procuratory of resignation; but so far as regarded the heir of the marriage, the contract alone would have been sufficient for the completion of the title. It would have been in vain for any third party to contend that Sir Andrew's titles were completed under an unrecorded entail, simply because the charter had been expede, not only on the recorded marriage contract, but on the unrecorded procuratory. So far as regards the heirs of the marriage, that procuratory was of no consequence. Beyond all doubt the respondent is entitled to ascribe the investiture under which his predecessors possessed, and he now claims, to that deed, which in the first place formed de facto the foundation of the titles to the estates, and which, secondly, as being recorded, was the deed under which the heirs of the marriage were peculiarly bound to possess. The question might have stood in a different situation with any party in whose favour the succession opened after the line of destination in the procuratory came to diverge from that
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(3.) The respondents are advised that there is a valid restraint in the entail against contracting debt, but it is unnecessary to go into that point.
(4.) In fact there was no sale here, only a simulate, colourable, and collusive contrivance to effect a change in the order of suecession. No real debt ever was contracted by Sir Andrew to Kennedy, and none was ever meant to be contracted. They never for a single instant stood in the relation of debtor and creditor to each other. It is indisputable entail law that an heir in possession, even where an entail is defective in regard to any of the prohibitions, can be defeated merely by doing that precise thing which is not effectually prohibited. It is not enough that he does what in its ultimate effect may be equivalent to what he is not prohibited from doing; he cannot simulately do
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Lord Advocate.—The judgment proceeded on the ground that it was impossible to disguise the fact, that the whole was a colourable and simulate decree to reach an alteration of the succession by affecting to do what was permitted in relation to a mere act of feuing; but this the law would not permit.
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My Lords, in this case, which has been very fully argued at your Lordship's bar, one or two points have been made on the part of the appellant, I might almost say for the first time. The great value of the property, which appears from the amount of the bills given in these simulated transactions, also confers importance on the case, but it is chiefly in regard to those points that I am to trouble your Lordships with a few words; for I hold it the bounden duty of your Lordships in all cases to take most special care, that, if desperate points should be mooted as tenable, no countenance shall be given to them, as if they were only doubtful, especially where important principles being drawn into groundless and unreasonable doubt, may tend to multiply litigation, and to shake the titles of property. Your Lordships will at once perceive I allude more especially to that which has been brought forward, for the first time to my knowledge, as even a matter of juridical exercitation—namely, that if an entail shall be aptly conceived in all but one respect, but with an inept clause, either of prohibition to sell, or of prohibition to contract debt, or prohibition to alter the order of succession, all the other parts of that instrument, be they ever so technically framed—be the fetters ever so accurately and effectually imposed by the deed—not only the defective portion of the entail, but the whole becomes a nullity. My Lords, I asked the learned counsel whether he had any cases to cite on that point. He candidly said he had not. I might have asked if there were any authority from text writers, or an obiter dictum of any one among the many Judges who have sat in the Court of Session when it was most numerously composed, and when (I speak it with all respect to that Court) obiter dicta of an ill-considered description were far more frequent than they have of late years been; or whether, among the records of that Court, in any period of its history, there can be found any colour or countenance whatever for a doctrine so strange and pregnant with peril. I should have asked in vain; I have also searched the books myself. The result is, that I can find nothing to give any countenance or colour for the doctrine; and that I may now, especially after the candid admission of the learned counsel who opened the point, state
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The House of Lords ordered and adjudged, That the interlocutor complained of be affirmed.
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The House of Lords ordered and adjudged, That the interlocutor complained of be affirmed, with 150 l. costs.
Appellant's Authorities.—2 Stair, 3,58; Hope's Minor Practicks, tit. 16; Drummond, 15th July 1636 (Mor 4302); Bryson, 22d January 1760(Mor. 15,511); Lord Ankerville, 8th August 1787 (Mor 7010); Lockhart, 11th June 1811 (Fac. Coll. xvi. 279, No. 81); Hamilton, 3d March 1815 (Fac. Coll. xviii. 302, No. 69); 3 Dow's Reports, p. 183; Craik, 29th January 1735 (Mor 4313); Lord Strathnaver, 2d February 1728 (Mor. 15,373); Ure, 17th July 1756 (Mor 4315); Willison, 8th December 1724; Campbell's Heirs, 17th June 1746 (Mor 6554); Stewart, 8th July 1789 (Mor. 15,535);
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Solicitors: Spottiswoode and Robertson— Richardson and Connell,—Solicitors.