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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Falconer Esq. and Others, Creditors of Thomas Craig, late of Riccarton, Esq. deceased v. John Mushet and Others, Creditors of Robert Craig of Riccarton [1714] UKHL Robertson_110 (3 July 1714)
URL: http://www.bailii.org/uk/cases/UKHL/1714/Robertson_110.html
Cite as: [1714] UKHL Robertson_110

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SCOTTISH_HoL_JURY_COURT

Page: 110↓

(1714) Robertson 110

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 29.


John Falconer Esq. and Others, Creditors of Thomas Craig, late of Riccarton, Esq. deceased,     Appellants

v.

John Mushet and Others, Creditors of Robert Craig of Riccarton,     Respondents

3d July 1714.

Subject_Tailzie.—

Fountainhall, 13 June 1712.

Forbes, 22 July, 1712.

It being found that, in respect an entail, with prohibitory clauses, contained no irritancy of the right of the contravener, the debts of the heir in possession did equally affect the estate with the debts of his predecessors; the judgment is reversed.

An entail executed prior to the act 1685 sustained, though objection made that it was not registered in terms of that act.

Subject_Construction.—

The Court of Session having found that the irritancy of the contravener's right in the entail of Riccarton did only respect the heirs female, and not the heirs male; their judgment is reversed.

Desination.

Heirs male.

Heirs female.

Conditions, provisions, &c.

Thomas Craig late of Riccarton, deceased, executed an entail of his estate of Riccarton and other lands, which had been long enjoyed by his ancestors, in the following manner:— On the 14th of March 1684, he executed a procuratory for resigning the same to the crown, and afterwards procured a charter under the great seal, dated the 29th of January 1686, whereby the said estate and lands were granted (a) “dilecto nro Thomæ Craig de Riccarton et hæredibus maseulis ex ejus corpore ltime procrean. quibus deficien. Roberto Craig ejus fratri et hæredibus mafeulis ex ejusd. Roberti corpore ltime procrean. quibus deficien. Joanni Craig ejus fratri et hæredibus masculis de corpore dict. Joannis ltime procrean. quibus deficien. Jacobo Craig ejus fratri et hæredibus mafeulis ex ejus corpore ltime procrean. quibus deficien. Wmo Craig ejus fratri et hæredibus mafeulis ex ejus corpore ltime procrean. quibus deficien. filiæ legitimæ natu maximæ dict. Thomæ Craig ex ejus corpore procrean. absque divisione, et hæredibus masculis ex corpore ejusd. filiæ procrean. quibus deficien. dict. Thomæ Craig ejus alteri filiæ fine divisione et hæedibus masculis ex ejusd. filiæ corpore ltime procrean. et ita deinceps successive quam diu dict. Thomæ Craig filias habuerit; quibus oibus deficien. dict. Thomæ Craig ejus propinquioribus ltimis hæredibus et assignat, quibuscumque hærie et irredimbiliter cum et sub provisionibus reftrictionibus limitationibus et conditionibus subtus express. Omnes et fingulas terras baronias aliaque rexive posteament. viz. totas et integras terras de Riccarton, &c. Cum et sub hac tamen provisione et conditione quod dict. Robertus Joannes Jacobus et Wmus Craigs fratres dict. Thomæ Craig et hæredes masculi ex corum Corporibus procrean. nullam potestatem

_________________ Footnote _________________

( a) On account of the singular importance of this case, and as the clauses of the charter are not recited verbatim either in the Appeal Cases or the Decisions where it is reported, a copy of the destination and clauses irritant and resolutive was procured from the General Registers House, which is here made use of.

Page: 111↓

vel libertatem habebunt debita contrahere vel aliquod aliud facere in prejudicio hæredum feminarum ex corpore dict. Thomæ Craig procrean. penes eorurn successionum ad terras et statum suprament. deficien. hæeredibus masculis dict. Roberti Joannis Jacobi et Wmi Craigs ltime procrean. Quin etiam providetur et declaratur qd. oia talia debita et facta contract. vel fact. per illos nullius erint valoris roboris aut effectus ad assiciend. dict. Terras et statum aut dict. Thomæ Craig ejus filias et hæredes feminas quæ eifdem succedent liberæ et immunes ab omni onere quoeunque sine prejudicio tamen dict. Roberto Joanni Jacobo et Willielmo Craigs et eorurm hæredibus masculis antedict. providen. suis sponsis in vitali redditu ad quartam partem dict. terrarum et status duran. oibus eorum vitæ diebus et provisiones et portiones earum filiabus conceden. si modo dict. provisiones non excedent trium annorum reddit. dict. terrarum inter liberos uniuscujusque fratris. Providetur etiam et declaratur quod si dict. terræ et status quovis tempore futuro (deficien. hæredibus masculis dict. Thomæ Craig et ejus fratrum ex corporibus fuis procrean.) evenerint ad dict. hæredes feminas tunc et in eo casu hæres femina natu maxima de tempore in tempus tantum succedet sine divisione, et dict. hæres femina tenebitur et obligabitur nubere viro generofo cognomine de Craig vel viro generofo cujusvis alius cognominis qui et hæredes ex ejus corpore procrean. omni tempore postca dict. nomen de Craig assument et insignia feu arma domus de Riccarton gerent et utentur. Et sub hac etiam provisione quod minime fuerit in potestate dict. hæredum fæminarum vel hæredum ex earum corporibus procrean. dilapidare vel alienare dict. terras et Statum nec debita contrahere vel aliquod aliud facere quo dict. terræ aut ulla pars earum ab illis evinci poterint, et si contravenire, vel in contrarium facere contigerint eo ipso perdent et amittent jus suum ad dict. terras et statum pro omni tempore inde sequen. et licitum et ltimum erit proximo hæredi Talliæ actionem declaratoriam desuper prosequi et immediate postea intrare ad possessionem dict. terrarum et status absque onere nullius partis dict. debitorum aut factorum. Et similiter providetur et declaratur quod dict. debita et facta declarabuntur nullius fore valoris aut essicaciæ fed vacua et irrita erint quoad assiciend. et onerand. dict. terras et statum vel proxinium hæredem Talliæ et licitum et ltimum erit proximo hæredi Talliæ ad eafdem succedere vel tanquam hæres contravenientis libero et immuni oneris dict. debitorum et factorum vel tanquam hæres illius qui obijt ultimo vestit. et fasit. immediate antedict. contravenien. et eund. contravenien. præterire cum et sub quibusdam provisionibus et conditionibus antedict. Tallia et substitutio supra specificat. est fact, et concess. per dict. Thomam Craig in favorem dict. personarum tantum et non aliter. Quæquidem Terræ de Riccarton, &c” Upon this charter infeftment was taken; but the entail was not recorded in terms of the subsequent act of parliament 1685.

Page: 112↓

Thomas Craig died without male issue, leaving one daughter surviving him, who was alive when this appeal was discussed. At the time of his death, he was indebted to the appellants in considerable sums of money; and these debts to the appellants had been contracted by the said Thomas Craig himself, or by his father or brother (to whom he was served heir) before the making of the said entail.

After the death of Thomas Craig, his brother Robert was served and retoured heir of entail and provision to him, and accordingly possessed the said lands as heir of entail. Sundry of the creditors of Thomas took new securities from this Robert Craig, who also contracted large debts of his own, and more than the said estate could have satisfied; and he thereby became and was declared a bankrupt. Adjudications of the Said lands were also obtained by several creditors of Robert Craig, and of his brother Thomas, the entailer.

The respondents having afterwards brought an action of ranking and Sale before the Court of Session, the appellants appeared for their interest, and pleaded that the creditors of Robert had no right to be paid out of the estate, since the deed of entail, under which Robert claimed, prohibited him from contracting any debts, and declared that any debts he did contract should be void : The respondents insisted, that as there was merely a prohibitory and no irritant and resolutive clause, Robert still had the dominium and property of the estate, which must be liable to his debts. The Court, on the 25th of July 1711, “found that in respect the entail contained no irritancy of the right of the contravener, the debts of the Said Robert Craig do equally affect the lands and estate of Riccarton, with the debts of his predecessors, according to their priority of diligence.”—And to this interlocutor the Court adhered on the 13th of June 1712.

The appellants having further reclaimed, praying the Court either to find that there was no necessity for an express resolutive clause, to make the prohibition upon the heirs male effectual, or to find that the resolutive clause in the entail did affect the whole heirs therein mentioned. The Court on the 22d of July 1712, after answers for the respondents “adhered to their two former interlocutors; reserving to the parties to be heard before the Lord Ordinary in the cause, if the above-mentioned irritant and resolutive clauses in the entail affect the whole heirs.” Parties were accordingly heard, and a report being made to the Court, their Lordships on the 8th of July.1713, “found that the irritancy of the contravener's right in the said entail, doth only respect the heirs female, and not the heirs male.”

Entered, 12 April 1714

The appeal was brought from “several interlocutors orders or decrees of the Lords of Council and Session of the 25th of July 1711, the 13th of June and 22d of July 1712, and 8th of July 1713.”

Page: 113↓

Heads of the Appellants' Argument.

By the clauses in the said deed of entail, it was not only provided, by the said Thomas Craig, that the said Robert and his brothers should have no power to contract debts, or do any other thing in prejudice of the heirs female of his body; but it was also declared that such debts should be of no validity to affect his said estate. And the said Robert being served heir of entail and provision to his brother Thomas in the very terms of the said settlement, his, the said Robert's debts could not affect the said estate, or come in competition with the debts due to the appellants, which had been all legally contracted by Thomas Craig the entailer and his predecessors, and to which he and the said estate were liable before the making of the said entail.

This entail being made before the act of parliament there was no necessity for registering it; and the provisoes and conditions therein were sufficiently published and made known by the said Robert's service and retour as heir of provision to the said Thomas, wherein those provisoes and conditions are expressly repeated, as well as in his insestment following thereon. These being all matters of record, were sufficient to caution the appellants against the said Robert's contracting debts with them.

It is apparent, that it was the said Thomas's intention to prohibit Robert and his other brothers to contract debts, or do acts not only in prejudice of his heirs female, but of one another, by the exception of a power to make jointures and provide portions for younger children. But it does not concern the appellants to dispute the import of the prohibition, whether it respected the other members of the entail, or only the heirs female; for either was it must operate in favour of the appellants, who were creditors before the entail; and it being expressly declared that Robert's debts shall be of no force or validity to affect the said estate, of consequence, in the ranking of creditors upon the estate these cannot come in competition with the appellants' debts which affected the same before the said entail.

It cannot be denied, that Thomas, the maker of this entail, had an unlimited property in his estate, and was under no obligation to call his brothers to the Succession, much less to prefer them to his own daughters: but as such absolute proprietor he had an undoubted privilege of giving laws to his own, and might therefore dispose of his estate in such manner and under such provisoes and conditions, for precluding the same from being affected with the debts of his successors, as he thought fit. And he has here disponed the same to the said Robert and his other brothers, under the said restrictions, whereby Robert after the death of his brother Thomas had only a limited property therein, so as that his debts should not affect the said estate. The debts owing to the appellants, therefore, which were contracted by the prohibitor himself, who was under no restriction, were preferable to the respondent's debts, which had been contracted by Robert contrary to the said prohibition.

Page: 114↓

An heir of entail is not bound to the payment or warrandice of all his predecessor's debts and deeds: for his predecessor being a limited proprietor, and the heir of entail only succeeding to him as such, he is only bound to pay and warrant such debts and deeds as do not evict and take away the limited fee.

The interlocutor of the 25th of July 1711, was founded upon a seeming inconsistency of a person's being proprietor, and yet not having the right of alienating or affecting the property, without irritating his own right and fee at the same time: but the appellants in a reclaiming petition, shewed from the common definition of Dominium or property, and several authorities, that there was no such inconsistency; but that a property may be so limited that the proprietor cannot alienate, though at the same time the contravention may not import an irritancy of the fee. If there be no such inconsistency, the clause containing the limitation must be taken cum effectu and thereby the appellants have an absolute right of preference.

The appellants in a reclaiming petition, after pronouncing the interlocutor of the 13th of June 1712, contended, that in the limitations of the said charter, there are contained three distinct periods. In the first, beginning at cum et fub hac tamen provisione, &c. there is a prohibition upon Robert, and the other brothers and the heirs male of their bodies to contract debts, except in favour of their wives and children, with an irritancy of the debts the themselves, declaring, that the debts contracted by them shall neither affect the estate, nor the heir of entail. In the second beginning at, Providetur etiam et Declaratur quod st diet, terræ &c, there is a prohibition upon the heirs female to contract any debt whatsoever, and an injunction to marry one of the name of Craig, or who shall assume that name, and bear the arms of the house of Riccarton, with a resolutive clause, whereby it is provided, that immediately upon the contravention they shall lose their right, and that it shall be lawful for the next heir of entail to pursue a declarator, and enter into the possession of the estate, without any burden of their debts. And then there is a third period, beginning at Et similiter providetur et declarator, &c wherein there is a proviso relating to both the foregoing periods, and the heirs of entail therein mentioned, that not only all the debts and deeds done by the said heirs of entail, should be of no force or effect to charge the estate, but that it should be lawful for the next heir of entail, either to succeed to the contravener, free of such debts and deeds, or to pafs him by, and succeed to his predecessor. And all is concluded with these general words, “Cum et sub quibusdam provisionibus et conditionibus antedict. Tallia et substitutio supra specificat. est fact. et concess. per dict. Thomam Craig in favorem dict. personarum tantum et non aliter.” It is obvious, that in this last period, there is both an expressed irritant, and resolutive clause, which is not only applicable, but muss necessarily refer to both the antecedent periods, and by consequence to the whole heirs of entail therein mentioned. If such an interpretation can be made, it ought to be admitted in this case, as most agreeable to

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the mind and intention of the maker of the entail; which evidently appears to have been to secure his estate, against being wasted or alienated by any of his heirs of entail, that it might descend to all the substitutes therein free and unincumbered in all the channels through which it was to pass. To what purpose otherwise, was there so anxious a prohibition on his brothers to contract debts? and to what purpose was a liberty granted them to contract debts in one particular case? viz. for making provision for their wives and children, if his mind and intention had not been to bind them up in other cases. The Court by their interlocutor having found, that, in respect the entail contained no irritancy of the right of the contravener, therefore his debts do affect the estate, have in a manner found that without a resolutive clause, a simple prohibition is ineffectual. But there being now a general resolutive clause fixed on, subjoined to all the prohibitions, both upon the second and third classes of the heirs of entail, this clause must necessarily be so interpreted as to refer to the whole, ut actus valeat; and this the more plainly appears, if the tenor of that clause be considered with the others. The brothers, therefore, were not only under a simple prohibition, but under a prohibition with a resolutive clause.

Heads of the Respondents' Argument.

All deeds of entail are inconsistent with the genuine notion of property, and plainly tend to a perpetuity: upon that account they are to be interpreted most strictly, and not to be extended from one case to another. But in this case there is no manner of restriction upon Robert and the other heirs which can be of any use to the appellants: for the restriction upon the heirs male is expressly that they should not contract any debts in prejudice of the grantor's heirs female, and in case they did, the debts should be void. But the grantor's heir female is no party to this action, nor does she complain; and consequently it is jus tertij to the appellants whether the heir female be prejudiced or not, and they cannot plead that the debts are void as to them, for it would be of the worst consequence, if, because there were a prohibitory or other clause in a deed of entail in favour of a particular heir, that therefore other heirs of entail (whom the grantor seemed to exclude by not including them) or their creditors should be allowed to found upon this privilege merely personal in favour of the particular heir.

Though that prohibition to contract debts did extend to the appellants as well as the grantor's heirs female, yet it can be of no use to them, since there is no clause irritant or resolutive of the heirs right upon contracting of debts: for it is the concurring opinion of all Scots lawyers, that these words are but a simple prohibition, and of no effect unless the ordinary irritant clause be likewise added; viz. that in case the heirs should contract debts, these debts should not only be void, but the contractor should eo ipso forfeit his right to the estate, and the next in remainder enter and hold the estate free of all the debts. It is not enough to void

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the debts, but likewise the estate; and unless the estate is voided in that manner, it is impossible to prevent the debts from binding the estate, because the person succeeding must serve himself heir to the last possessor; and if he does, he thereby subjects himself and the estate to those debts. It was to prevent this that irritant clauses were first invented, and added to the deeds of entail, by those who intended to perpetuate their estates and families; and. without the irritant clauses, the possessor continues truly proprietor, may burthen his estate with debts, or fell the lands for payment of debts. Indeed the act of parliament 1685, which is the foundation of all these deeds of entail mentions only these irritant and resolutive clauses, as of force to tie up the proprietors from alienation or contracting debts. The grantor himself, too, seems to have been of this opinion, for, where the estate is limited to the heirs female, the debts are not only declared void, but the fee or estate is voided, and the next in remainder has a power to enter. If the grantor, then, had intended to have voided the fee of the heirs male, as well as of the heirs female, it had been easy to have expressed it in both, but his doing it in one, and omitting it in the other, plainly she was his intention.

There is nothing more evident, than that in this deed, there are two branches of Substitution; first the grantor's brothers and the heirs male of their bodies, next the issue female, to both of which there are distinct clauses subjoined; to the first, only a simple prohibitory clause, of not contracting debts; but to the last not only a prohibitory clause, but irritant and resolutive clauses voiding the fee, from a just and reasonable view, that by marrying they would be under the influence of their husbands, who being of other families, had not the same natural ties upon them to preserve the family, as the heirs male were presumed to have. And as this is an ordinary practice in Scotland so upon view of the clause itself, it is impossible so far to strain the words as to extend the irritant and resolutive clause to the heirs male.

Upon the whole, to reverse this decree would be a matter of the most dangerous consequence, since the said Robert Craig, according to the undoubted principles of the law of Scotland, was proprietor of the said estate, and could subject it to his debts. Upon the faith of this the respondents bona fide lent him money, and several of the creditors of Thomas Craig cancelled their former obligations and took new ones from Robert; and the appellants were so much persuaded of Robert's right to the said estate, that they brought actions against him for their debts, and obtained adjudications, which was not a regular way if the fee had been voided. The appellants have adjudications of the same date with the respondents, and both will be equally paid, notwithstanding of what the petition and appeal untruly suggests.

Judgment, 3 July 1714.

After hearing counsel, it is ordered and adjusted, that the interlocutory order or decree of the 25th of July 1711, whereby the Lords of Session in respect the entail contained no irritancy of the right of the contravener found, “that the debts of the said Robert Crag

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do equally affect the lands and estate of Riccarton, with the debts of his predecessors, according to their priority of diligence,” and the two several interlocutory orders or decrees of the th of June and 22 d of July 1712, whereby the Lords of session adhered to their former interlocutor, be reversed; and that the said interlocutory order and decree of the 8 th of July 1713, whereby the Lords of session found “that the irritancy of the contravener's right in the said entail, doth only respect the heirs female, and not the heirs male,” be also reversed,

Counsel: For Appellants, Rob. Raymond. Sam. Mead.
For Respondents, Tho. Lutwyche P. King.

The judgment of the House of Peers in this case, is of the highest importance, as it reverses the doctrine laid down by the law writers, on the authority of this case at least, viz. That entails being of most strict interpretation, a mere prohibition to contract debt, if there be not also an irritant and resolutive clause, does not hinder the heir of entail from Subjecting the estate to his debts. In support of this doctrine, the decree of the Court of Session, which is here specially reversed, is founded on in the Dictionary of Decisions, vol. ii. voce Tailzie, p. 432. Bankton, b. 2. tit. 3. Sect. 139. Erfkine, book 3 tit. 8. § 29. Though the decree of the Court of Session was in this case reversed, also upon another point, (the construction), it appears from the words of the Judgment, that the doctrine upon the first point, (the prohibitory clause without an irritant or resolutive one,) was also particularly under consideration.

It is also remarkable on another point, as Supporting an entail, made prior to the act 1685. c. 22. but not registered in terms of that act. The decisions upon this point have been fluctuating, but it appears that since this judgment, the House of Peers in the case, The Earl and Countess of Rothes v.philp 16th January 1761, “declared that entails created of Lands in Scotland, with prohibitive irritant and resolutive clauses, before the making of the act of Parliament 1685, ought to be recorded in the register of Tailzies, according to the said statute.”

 1714

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