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deavour to part with it, or contract debt whereby it might be taken away from him by his creditors, then his act and deed in such attempt should be void and null. The resolutive clause, again, is the counterpart of that one; and while that other clause makes the deed done ineffectual, this one, namely, the resolutive clause, declares, that the power of the contravener shall instantly cease, and come to an end. As the awful writing on the wall declared that the kingdom of Belshazzar should pass from him, in punishment of his transgressions; so the resolutive clause of an entail declares that the heir, acting contrary to the restrictions of it, shall fall from his estate; and this is considered to be, not only a penalty of this disobedience, but strictly necessa ry, to give effect to the irritant clause. This latter idea-that the deed actually done should become null by the supposed previous demolition of the contravener's power, arising from the contravention, and yet that that demolition should be the consequence only of that very deed-is not a little abstract. So it is, however, and casuists may find it as difficult to settle the consistency of this, as of many other matters of the law: but the validity of such clauses to effect the intended purpose came early to trial in the noted case of Stormont, in 1662, when it was supported by a majority of no more than one vote on the bench of the Court of Session. It was not, however, considered to be safe to leave a matter of such consequence to the determination of common law, where there had existed so much doubt; and then was enacted the well-known Statute 1685, c. 22. Were we certain that our friend the laird had the Scots Acts, or that, being possessed of them, he could readily lay his hands on them, we should satisfy ourselves with a mere reference to it; but having good reason to think, either that he has them not, or that the leddy, in her rage for redding up her house, and having all things in order," has actually tumbled them up into the garret, we recite the words of the Statute, which declares, "That
it shall be lawful to his Majesty's subjects to tailzie* their lands and estates; and to substitute heirs in their tailzies with such provisions and conditions as they shall think fit, and to effect the said tailzies with irritant and resolutive clauses :" and it is afterwards declared, "that such tailzies shall only be allowed, in which the foresaid irritant and resolutive clauses are inserted in the procuratories of resignation, charters, precepts, and instruments of seasine, and the original tailzie once produced before the Lords of Session judicially, who are hereby ordained to interpose their authority hereto; and that a record be made in a particular Register-book, to be kept for that effect, wherein shall be recorded the names of the maker of the tailzie, and of the heirs of tailzie, and the general designations of the lordships and baronies, and the provisions and conditions contained in the tailzie, with the foresaid irritant and resolutive clauses subjoined thereto, to remain in the said register ad perpe◄ tuam rei memoriam.'
This short view of the law on this subject will, we trust, render the case of which we are to treat easily intelligible; and the following are its facts and circumstances:
Miss Margaret Agnew, only child of R. Agnew of Sheuchan, was married to John Vans of Barnbarroch Esq., and a contract of marriage was entered into on the occasion, dated 29th December 1757. According to it, R. Agnew paid to T. Vans £.3000, and entailed on him and his future wife, his own (R. Agnew's) daughter, his lands of Sheuchan. J. Vans, as a counterpart, entailed his estate of Barnbarroch on HIMSELF and Mar garet Agnew, his spouse, and the survivor of them; whom failing, to the heirs of the marriage; whom failing, to the heirs of the body of the said Margaret Agnew, in any subsequent marriage, whom failing, to the other persons therein named.
These mutual entails were regularly protected, by irritant and resolutive clauses, against selling and contracting debt, the nature of which has been already explained; and it
Tailzie is the Scotch law-term for Entail, derived from the French Tailer to cut ; whence also comes the word Tailor.
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.
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
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."
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. Än Act of Parliament was accordingly 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 being 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 whether 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.
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
"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.
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 creditors as had not, previous to that infeftment, actually attached the estate by adjudication.
Now, with the utmost deference, we are not satisfied with the principles 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
• See Juridical
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
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 interpre tation 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?
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
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 law, a proprietor could restrain himself. statute was only suppletory of the comThe mon 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 entailCourt of Session, in fixing the terms ing the other in its place; and the 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, Dunure, in 1817, where unentailed which was that of Mr Kennedy of lands were substituted for others which were entailed, and Mr Kenneponed the unentailed lands to himself, dy, also, by the Court's authority, disas institute, and bound himself by all the conditions of the new entail. that it is competent for an entailer to From these two cases, it appeared bind himself as institute; but there might be, besides, this special reason Duke and Mr Kennedy were already in both of these instances, that the bound, as substitutes holding the old entailed estates, and these obligations