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must be specially remarked, first, that those clauses in Mr Vans's entail were expressly directed, not only against the heirs of entail, but against Mr John Vans himself, as institute, or person first named; and, secondly, that the tailzie by him was not executed, as generally takes place, gratuitously, but for the two onerous considerations of a sum actually paid down, and of a counter-entail of the lands of Sheuchan.
The entail of Barnbarroch was recorded in the record of tailzies very soon after its execution in 1758; but, as shown from the act, to render it effectual, an additional step was necessary, not only at common law, before 1685, but by the enactment of that year; and that was, that infeftment should follow, and be registered, on the entail, reciting all its conditions, and irritant and resolutive clauses. This step, which was absolutely requisite for the completion of the tailzie, did not, however, follow until 1775, viz. at the distance of seventeen years; and let us next observe what happened in the mean time, and before that sasine took place. John Vans had, at the date, and the recording of the entail in 1758, owed £.1500; and from the time of that recording, down to the full completion of the entail, by recorded infeftment, in 1775, he contracted £.8000 more debt; so that before his entail was completed, by the last of the two requisites having been complied with, he actually owed £.9500. In point of fact, we may just add, that, from the recording of the infeftment on the entail, down to his death, he contracted debt to the amount of £.1500 more, so that his debts, before he died, amounted in all to £.11,000 sterling.
discussion in the Court of Session, at the instance of John Vans's creditors, in 1784. We regret that our limits do not admit our quoting the speeches made on the occasion, upon the Bench, by Lord Braxfield, and the other great Judges of that day, but they "found that the tailzie was a subsisting deed; but that the estate of Barnbarroch was still affectable by the debts due by John Vans of Barnbarroch AT THE TIME OF HIS DEATH."
Keeping the circumstances in view, that this onerous entail was executed by John Vans himself, and that the limitations were directed against himself as well as others, the question arose, whether any, and what part of those his debts were good against his own estate of Barnbarroch, or whether that estate ought to descend free from his debt, to his own heir, Robert Vans Agnew, (the son of his marriage with Miss Agnew,) who, after his father's death, made up titles to it. The case came into
This decision was considered to be well founded at the time. It found in substance, that in no case could a man entail his lands to the prejudice of his own just and lawful creditors. An Act of Parliament was according ly obtained on it, for selling this entailed estate, so far as necessary, to pay John Vans's debts; and had the matter been carried speedily through, the whole of his £11,000 of debt would have been paid off under it.
The business, however, was in no such forwardness. Robert Vans Agnew, the son of J. Vans, died, while yet little more had been done. We should have been apt to suppose that the Act of Parliament would have shut the chequer, but such acts be ing always periculo petentis, have no such effect. John Vans Agnew, now of Sheuchan, son of Robert Vans Agnew, succeeded him; and on coming of age, and returning from abroad, he appealed to the House of Lords against the decision of the Court below, when the Peers remitted the case for consideration to that Court; and the Lords of Session, on 2d June 1818, on perusing printed informations for the parties, adhered to the sentence of their predecessors in 1784, finding also expences to be due by Mr Vans Agnew.
Recourse was then had to a second appeal, on hearing which, the House of Peers, on 14th July 1822, materially altered the decision of the Court here, for they "found, that the estate was affectable only by the debts of the said John Vans AT THE
DATE OF THE DEED OF TAILZIE OF 29TH DECEMBER 1757, AND WHICH REMAINED DUE AT THE TIME OF
HIS DEATH, and by such other debts of the said John Vans, if any, as had become real charges upon the estate before the infeftment on 20th May 1775.
This is the judgment of the House
of Peers referred to in our title to this paper; and, as admitted by Mr Mundel, Solicitor in London, (who is known to be the author of an article on the subject in the New Edinburgh Review of October last,) it "produced an uncommon degree of sensation" in the country; for its clear import was, that though John Vans's debts, due at the date of his entail, could not be affected by it, yet that all his posterior contractions were unavailable against it, unless where the estate was attached by adjudication for any of them, before the infeftment took place on that entail; and as such attachments must have been very few, owing to his good credit, we may reckon that this judgment of the Peers cut out creditors of the entailer to the large extent of nearly £.8000 sterling, all of whom would have been paid, according to the Court of Session's decree. As a precedent, this decision in the Court of last resort was most naturally the source of great anxiety, because it amounted precisely to this, that a man who stands in the fee-simple of his estate, may onerously execute an entail of it; and that that tailzie, after lurking in his repositories for many years, during which he has been contracting large debts of all kinds, may be brought forth by those having interest in it; and being, in the course of a few days, put into the record of tailzies, and followed by a recorded sasine, will cut off every one of those lawful creditors, perhaps to the utter ruin of themselves and their families. We shall now set ourselves to inquire whe ther or not it is well-founded in the law of the country; and recollecting that, whether right or not, it will regulate future judgments, it ought next to be considered what should be the remedy of so great an evil as the existence of such a law.
"Considerations, &c." M. De Lolme, in his celebrated Essay on the British Constitution, says, that in this free country, one of the most useful purposes of Journals, of all kinds, is to acquaint the people with the decisions of the courts of law, and to try their value; and availing ourselves of the opportunity which ours affords us, we shall, in as far as in us lies, consider the various merits of these judgments, and of the opinions of those writers. We approach the decisions, however, with becoming diffidence, and the greatest respect; being aware that it may occur to some, that it is not a little presumptuous in us to impugn the ideas of great and learned Judges, pronounced not only from the Bench, but from the Woolsack.
In this writing land of ours, all matters of general importance become the subject of public discussion, and accordingly this one has engaged various able authors; the chief of whom are Mr Mundel, whom we have already alluded to; Mr Sandford, who treats of it in his valuable Book on Tailzies; and Mr Archibald Swinton, W. S. who has handled it in his excellent pamphlet entitled
The decison of the Court of Session (which is approved of by Mr Sandford) is founded on this general conception, that no man, by his own entail, is entitled, in any case, to cut out any of his own creditors whatever; and on this general idea, men of business have always considered the transference to an entailer's bond as one of the best securities for money; because it was held to be for good against an estate, which, by the tailzie, is safe from all future contractions.
The judgment of the House of Peers, which Mr Mundel, on the other hand, approves of, admitted no such general principle; but holding an onerous entail, like that of John Vans, to have been of the nature of a sale to the heirs of tailzie, they were led, by that analogy, to give effect to the sasine on it, so as to exclude such of the entailer's own crelitors as had not, previous to that infeftment, actually attached the estate by adjudication.
Now, with the utmost deference, we are not satisfied with the prin ciples of either of those judgments, and shall proceed to state why we differ from them. Those who have perused Mr Swinton's little work, will find that we arrive at nearly the same conclusions with him, though by a different demonstration.
In considering any plant or animal, or any other matter in natural history, one of our first inquiries is, "to what species does it be
long?" and following the same mode here, let us examine whether, in the law of Scotland, such a writing as that which was executed by John Vans was by species an entail, or a deed of sale. Should we find it to have been an entail, we shall then inquire whether there was any such specialty in it as to give it an effect, contrary to the general nature of tailzies, of excluding the just and lawful creditors of the entailer.
What, then, was this writing? Our answer is, that, having a destination with conditions, provisions, restrictions, limitations, and clauses irritant and resolutive, and all the other parts of the machinery of an entail, we must hold it to have been an entail just as certainly as we admit a large engine, consisting of all the wheels, mill-stones, and other apparatus necessary for grinding grain, to be a corn-mill. It is true, that there was here a particular reason for the deed, a quid pro quo, such as generally takes place in sales; and that by the terms of the dispositive clause of this writing, John Vans "sells, alienates, and dispones," &c. But is not such a quid pro quo only the result of the agreement which had been made to execute mutual tailzies, as much as it would have the consequence of one to make mutual sales? and this may be safely conceded, without confounding the two kinds of rights together. As for the term "sells" used by John Vans, it seems little to the purpose, because it is well known, in the tautology of our Scotch deeds, not necessarily to mean what is ordinarily understood by sale, but often to denominate, in fact, no more than a strong expression of lien, which, appears from the use of it in ordinary heritable bonds, (not even dispositions in security,) where no sale is intended, and where nothing farther is, in truth, meant than the constitution of a real burden over the land *.
We humbly think, therefore, that the writing of John Vans was truly AN ENTAIL; and we shall next consider whether there were any specialties in it, to prevent its being governed by the ordinary rules and law of tailzies.
But what may it be supposed that such specialties may have consisted
in? It was doubted, in the first place, whether Mr John Vans, or any other entailer, could impose limitations and restrictions on the institute, or person first named by the tailzie, and affect him with irritant and resolutive clauses; and, secondly, it was contended that, esto, he could so restrain his institute, should that institute be any other person; he could not do so in the event of his naming himself the institute of his entail.
Now, on the subject of the first of these, founding on the terms of the Statute 1685, which we have already quoted, it has been said, that that Act gave no authority to impose restrictions on institutes, or the persons first named in each entail, but only on those after named, who alone are said to be meant by the term "heirs" in the act. It is really mortifying to see how much mischief has been done in the world, and how many of the lawsuits in it have arisen from the imperfection of language, and the looseness of expressions, not only in formal writings, but in the laws of countries, which, like the Sphynx's riddle, or the effusions of the Delphic Priestess, may often be interpreted any way. The present is an instance of such uncertainty; but the best key to all such puzzles is to resort to evident design. Now is it conceivable, when our Legislature allowed men "to tailzie their lands and estates," that they did not mean that they should have chiefly power to do so, against the acts and deeds of the eldest son, say of the entailer, whom he might name first, making him thus institute, and whose profuse habits might be the chief cause of his entailing at all? Dalrymple says gravely, that an English estate frequently stands out against two generations of profusion, but that a single profligate very often ruins a Scotch one. Suppose, then, that the sorrowing father of such a son had, after the 1685, come to the great lawyers of that time, who had just prepared the entail act of that year, and asked them, whether it gave him power to tie up his son's hands, should he leave his estate to him, by straightway disponing it to him, re
* See Juridical Styles, Vol. I.
serving his own liferent? The answer must have been-" Certainly it does? It was for the benefit of such unfortunate persons as you, in a great measure, that the act was made, and you must not suppose that our work has been so deficient as to miss almost our sole purpose;" besides, in answer to what may be founded on the expressions which seem to limit the word heir, so as to make it mean substitutes, and not the institute of an entail, we hold that such interpretation is far too narrow; and probably the decisions in the case of Duntreath, and other actions, proceeded from the notion so prevalent in those days, that entails were stricti juris ; an idea now in a good measure departed from. The point for determination there, however, was not whether, according to the Statute 1685, an entailer could bind the institute, but whether, in particular instances, he had actually bound him. We may further add, that the Roman law was much more prevalent in this country in 1685 than it is now. According to the analogy of it, the institute was more the hæres than the substitute; and it is fair thus to argue, that, instead of protecting the institute against the imposing of restrictions, it was the direct intention in that act to lay them on him, as more properly an heir than any other. But farther, in point of actual practice, is it not quite customary for an entailer to bind the institute as well as the substitutes of his entail?
gratuitous deed; and is it not usual for men of profuse habits to tie up their own hands by bonds of interdiction, which, when duly proclaimed and registered, have the effect of restraining them? It is true, that the Act 1685 says nothing on the subject; and the reason is, that it was unnecessary, it being completely understood, that, at common w, a proprietor could restrain himself. The statute was only suppletory of the common law, as to confirming powers, and for the institution of the means of promulgation of all restraints by entail, wherever imposed; so that there seems to be little doubt, that a talzie, duly recorded, and followed by a registered infeftment, ought to be held good against the entailer himself, as well as others, providing that he is duly constituted institute, and that the irritant and resolutive clauses are made applicable to him. Lord Redesdale, in the able speech made by him on this case, preserved in the Appendix to Mr Sandford's Treatise, stated, that he considered it to be competent for an entailer to bind himself as institute of his entail, and he referred to two cases as confirming his opinion. The first was that of the Duke of Athole, in 1816. His Grace possessed the estate of Tullibardine, which was entailed, and that of Wester Kinnaird, which was unentailed: he obtained an Act of Parliament for loosing the first of them from the entail, and for entailing the other in its place; and the Court of Session, in fixing the terms of the new entail, ordained that His Grace should make it to "himself and the heirs whatsoever of his body, whom failing," &c. In the other case, which was that of Mr Kennedy of Dunure, in 1817, where unentailed lands were substituted for others which were entailed, and Mr Kennedy, also, by the Court's authority, disponed the unentailed lands to himself, as institute, and bound himself by all the conditions of the new entail. From these two cases, it appeared that it is competent for an entailer to bind himself as institute; but there might be, besides, this special reason in both of these instances, that the Duke and Mr Kennedy were already bound, as substitutes holding the old entailed estates, and these obligations
There seems to have been no incompetency, therefore, in John Vans having bound the institute of his entail by the irritant and resolutive clauses in it. The question is a little more difficult, whether it was competent for him to constitute himself the institute, and so bind himself by those clauses? But there appears to have been nothing whatever incompetent in thus binding himself, according to the genius of our law, for, according to the spirit of the Act 1621, men are presumed to be allowed to dispose of, and, a fortiori, to bind their estates and themselves even gratuitously, except in so far as they are obstructed by that Statute: besides, is it not competent for a landholder to reduce himself even to the situation of a liferenter by his own
imposed upon them by the new ones, were, in fact, no more than transferences of the burdens to which they were already subject; and further, in point of expediency, it was necessary that the restrictions should be imposed on them, for, had not that been done, the lands might have been sold by the persons in possession, being thus free from the limitations of any entail at all. These views seem to lead to the inference, that a proprietor of lands may bind himself as institute of his own entail, even gratuitously; and this, when duly completed, according to the Statute, would be no greater stretch of power than interdicting himself by his own deed, and proclaiming and recording the interdiction; but, in considering the present question, it is not necessary to concede so much, because the deed executed by Mr Vans was not gratuitous, but onerous.
It being, therefore, as it is humbly apprehended, established that Mr Vans's writing was a deed not of sale, but of entail, and competently made applicable to himself, let us apply the laws of entail to it, which must be done by reference to the direct terms of the Act 1685. Now, what are these terms?
By that Statute, it is enacted, that "such tailzies shall only be allowed, in which the irritant and resolutive clauses are inserted in the procuratories of resignation, charters, precepts, and instruments of sasine," and further, when the entail is presented to the Court of Session, and recorded by its authority. Now, the meaning of this is precisely, that a deed does not become an efficient entail merely by having resolutive and irritant clauses in it, but that two other requisites must also concur; 1st, that the tailzie shall be registered in the register of entails; and, 2d, that infeftment shall follow on it, containing a recital of all the conditions and restraining clauses infit; and, as a necessary consequence of this last, it must further go into the register of sasines, in terms of the Act 1617, which declared that all sasines must be registered within sixty days. Suppose, therefore, an entail is ever so full and regular in point of clauses, it can have no effect against the world, and with purchasers or money
lenders, or merchants giving credit, unless it is not only recorded in the register of entails, but also followed by infeftment duly recorded in the register of sasines: as BOTH Of these are required by the Act, the absence of any one of them is as fatal to the entail, as if it were deficient in both, or as if it wanted any of the most formal clauses. Let us now notice what effect these considerations ought to have in this case.
We have already seen, that John Vans, when he executed and recorded his entail in 1758, owed £.1500; of course his tailzie could not affect that part of his debt; but then he went on contracting further debt, so that at the final completion of the tailzie, by recorded sasine in 1775, he had contracted £.8000 more; now, it follows directly from the above principles, that the entail must be equally unavailing against this last, as against the former part of the debt, because, until the infeftment, the tailzie could not operate, and was equal to no entail at all: it was of no consequence that the entail had been put into the register of tailzies in 1758, because the Statute required also something else, viz. the recorded sasine, and that had been omitted until 1775, when this additional debt had already been contracted. It is no good argument to a money-lender, who was a creditor, that he might have known of the entail from the register of tailzies: his sound answer would be, "True, I knew that such a writ ing existed, but I also was aware that one of the means of publication ordered by the Act had not been adopted; I knew that, when the Statute directed solemnities, each of them was made requisite; and while no infeftment was taken on this tailzie, I considered that qua creditors, it was no better than so much waste paper; just on the same principles, that though an inhibition were known to be written, signeted, and executed, it could have no effect, without the completion of it by both and each of the means of promulgation ordered by the law regarding it."
This doctrine is distinctly supported by the case of Telford Smol let, 14th May 1807, which, though it varied a little in circumstances, agreed with this case in principle.