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must be specially remarked, first, discussion in the Court of Session, that those clauses in Mr Vans's en at the instance of John Vans's creditail were expressly directed, not only tors, in 1784. We regret that our against the heirs of entail, but against limits do not admit our quoting the Mr John Vars himself, as institute, speeches made on the occasion, upon or person first named; and, secondly, the Bench, by Lord Braxfield, and that the tailzie by him was not exe the other great Judges of that day, cuted, as generally takes place, gra- but they found that the tailzie was tuitously, but for the two onerous a subsisting deed; but that the estate considerations of a sum actually paid of Burnbarroch was still affectable by down, and of a counter-entail of the the debts due by John Vans of Barnbar. lands of Sheuchan.
roch AT THE TIME OF HIS DEATH.” The entail of Barnbarroch was re This decision was considered to be corded in the record of tailzies very well founded at the time. It found soon after its execution in 1758; but, in substance, that in no case could a as shown from the act, to render it man entail his lands to the prejudice effectual, an additional step was ne of his own just and lawful creditors. cessary, not only at common law, be. An Act of Parliament was accordingfore 1685, but by the enactment of ly obtained on it, for selling this enthat year; and that was, that infefte tailed estate, so far as necessary, to ment should follow, and be registered, pay John Vans's debts; and had the on the entail
, reciting all its condi- matter been carried speedily through, tions, and irritant and resolutive the whole of his £.11,000 of debt clauses. This step, which was abso- would have been paid off under it. lutely requisite for the completion of The business, however, was in no the tailzie, did not, however, follow such forwardness. Robert Vans Aga until 1775, viz. at the distance of new, the son of J. Vans, died, while seventeen years; and let us next ob- yet little more had been done. We serve what happened in the mean should have been apt to suppose that time, and before that sasine took the Act of Parliament would have place. John Vans had, at the date, shut the chequer, but such acts beand the recording of the entail in ing always periculo petentis, have 1758, owed £.1500 ; and from the no such effect. John Vans Agnew, time of that recording, down to the now of Sheuchan, son of Robert
Vans full completion of the entail, by re- Agnew, succeeded him; and on corded infeftment, in 1775, he con- coming of age, and returning from tracted £.8000 more debt; so that abroad, he appealed to the House of before his entail was completed, by the Lords against the decision of the last of the two requisites having been Court below, when the Peers remite complied with, he actually owed ted the case for consideration to that £.9500. In point of fact, we may Court; and the Lords of Session, on just add, that, from the recording of 2d June 1818, on perusing printed the infeftment on the entail, down to informations for the parties, adhered his death, he contracted debt to the to the sentence of their predecessors in amount of £. 1500 more, so that his 1784, finding also expences to be due debts, before he died, amounted in by Mr Vans Agnew. all to £.11,000 sterling.
Recourse was then had to a second Keeping the circumstances in view, appeal, on hearing which, the House that this onerous entail was executed of Peers, on 14th July 1822, mateby John Vans himself; and that the rially altered the decision of the limitations were directed against him- Court here, for they “ found, that self as well as others, the question the estate was affectable only by the arose, whether any, and what part debts of the said John Vans AT THE of those his debts were good against his own estate of Barnbarroch, or 29TH DECEMBER 1757, AND WHICH whether that estate ought to descend free from his debt, to his own heir, HIS DEATH, and by such other debts Robert Vans Agnew, (the son of his of the said John Vans, if any, as had marriage with Miss Agnew,) who, become real charges upon the estate bea after his father's death, made up fore the infeftment on 20th May 1915. titles to it. The case came into This is the judgment of the House
DATE OF THE DEED OF TAILZIE OF
REMAINED DUE AT THE TIME
of Peers referred to in our title to “ Considerations, &c.” M. De this paper ; and, as admitted by Mr Lolme, in his celebrated Essay on the Mundel, Solicitor in London, (who is British Constitution, says, that in known to be the author of an article this free country, one of the most use on the subject in the New Edinburgh ful purposes of Journals, of all kinds, Review of October last,) it "produ- is to acquaint the people with the ced an uncommon degree of sensation" decisions of the courts of law, and to in the country; for its clear import try their value ; and availing ourwas, that though John Vans's debts, selves of the opportunity which ours due at the date of his entail, could affords us, we shall, in as far as in us not be affected by it, yet that all his lies, consider the various merits of posterior contractions were unavail- these judgments, and of the opinions able against it, unless where the of those writers. We approach the de. estate was attached by adjudication cisions, however, with becoming diffor any of them, before the infeft- fidence, and the greatest respect ; bement took place on that entail; and ing aware that it may occur to some, as such attachments must have been that it is not a little presumptuous very few, owing to his good credit, in us to impugn the ideas of great we may reckon that this judgment of and learned Judges, pronounced not the Peers cut out creditors of the only from the Bench, but from the entailer to the large extent of nearly Woolsack. £.8000 sterling, all of whom would The decison of the Court of Ses have been paid, according to the sion (which is approved of by Mr Court of Session's decree. As a pre- Sandford) is founded on this general cedent, this decision in the Court of conception, that no man, by his own last resort was most naturally the entail, is entitled, in any case, to cut source of great anxiety, because it out any of his own creditors whatamounted precisely to this,-that a ever; and on this general idea, man who stands in the fee-simple of men of business have always consihis estate, may onerously execute an dered the transference to an entailer's entail of it; and that that tailzie, bond as one of the best securities for after lurking in his repositories for money ; because it was held to be for many years, during which he has good against an estate, which, by the been contracting large debts of all tailzie, safe from all future con. kinds, may be brought forth by those tractions. having interest in it ; and being, in The judgment of the House of the course of a few days, put into Peers, which Mr Mundel, on the the record of tailzies, and followed other hand, approves of, admitted no by a recorded sasine, will cut off such general principle; but holding every one of those lawful creditors, an onerous entail, like that of John perhaps to the utter ruin of them- Vans, to have been of the nature of selves and their families. We shall a sale to the heirs of tailzie, they now set ourselves to inquire whe were led, by that analogy, to give efther or not it is well-founded in the fect to the sasine on it, so as to exlaw of the country; and recollecting clude such of the entailer's own crethat, whether right or not, it will re ditors as had not, previous to that ingulate future judgments, it ought feftment, actually attached the estate next to be considered what should by adjudication. be the remedy of so great an evil as Now, with the utmost deference, the existence of such a law.
we are not satisfied with the prine In this writing land of ours, all ciples of either of those judgments, matters of general importance become and shall proceed to state why we the subject of public discussion, and differ from them. Those who have accordingly this one has engaged va- perused Mr Swinton's little work, rious able authors; the chief of will find that we arrive at nearly the whom are Mr Mundel, whom we same conclusions with him, though have already alluded to; Mr Sande by a different demonstration. ford, who treats of it in his valuable In considering any plant or aniBook on Tailzies ; and Mr Archibald mal, or any other matter in natuSwinton, W. S. who has handled it ral history, one of our first inquiin bis excellent pamphlet entitled ries is, “to what species does it be
long?" and following the same mode in? It was doubted, in the first place, here, let us examine whether, in the whether Mr John Vans, or any other law of Scotland, such a writing as entailer, could impose limitations that which was executed by John and restrictions on the institute, or Vans was by species an entail, or a person first named by the tailzie, deed of sale. Should we find it to and affect him with irritant and rehave been an entail, we shall then solutive clauses; and, secondly, it was inquire whether there was any such contended that, esto, he could so respecialty in it as to give it an effect, strain his institute, should that incontrary to the general nature of stitute be any other person ; he could tailzies, of excluding the just and not do so in the event of his namlawful creditors of the entailer. ing himself the institute of his en
What, then, was this writing? Our tail. answer is,-that, having a destination Now, on the subject of the first of with conditions, provisions, restric. these, founding on the terms of the tions, limitations, and clauses irrie Statute 1685, which we have already tant and resolutive, and all the other quoted, it has been said, that that parts of the machinery of an entail, Act gave no authority to impose rewe must hold it to have been an entail strictions on institutes, or the persons just as certainly as we admit a large first named in each entail, but only engine, consisting of all the wheels, on those after named, who alone are mill-stones, and other apparatus ne said to be meant by the term “heirs” cessary for grinding grain, to be a in the act. It is really mortifying corn-mill. It is true, that there was to see how much mischief has been here a particular reason for the deed, done in the world, and how many a quid pro quo, such as generally takes of the lawsuits in it have arisen place in sales ; and that by the terms from the imperfection of language, of the dispositive clause of this write and the looseness of expressions, not ing, John Vans " sells, alienates, and only in formal writings, but in the dispones,” &c. But is not such a laws of countries, which, like the quid pro quo only the result of the Sphynx's riddle, or the effusions of agreement which had been made to the Delphic Priestess, may often be execute mutual tailzies, as much as it interpreted any way. The present would have the consequence of one is an instance of such uncertainty ; to make mutual sales ? and this may but the best key to all such puzzles be safely conceded, without con- is to resort to evident design. Now founding the two kinds of rights to- is it conceivable, when our Legislature gether. As for the term “ sells." allowed men “ to tailzie their lands used by John Vans, it seems little to and estates," that they did not mean the purpose, because it is well known, that they should have chiefly power in the tautology of our Scotch deeds, to do so, against the acts and deeds not necessarily to mean what is or- of the eldest son, say of the entailer, dinarily understood by sale, but often whom he might name first, making to denominate, in fact, no more than him thus institute, and whose profuse a strong expression of lien, which, babits might be the chief cause of appears from the use of it in ordinary his entailing at all? Dalrymple says heritable bonds, (not even disposis gravely, that an English estate free tions in security,) where no sale is quently stands out against two geintended, and where nothing farther nerations of profusion, but that a is, in truth, meant than the constitu- single profligate very often ruins a tion of a real burden over the land * Scotch one. Suppose, then, that the
We humbly think, therefore, that sorrowing father of such a son had, the writing of John Vans was truly an after the 1685, come to the great ENTAIL; and we shall next consider lawyers of that time, who had just whether there were any specialties in prepared the entail act of that year, it, to prevent its being governed by and asked them, whether it gave him the ordinary rules and law of tailzies. power to tie up his son's hands, should
But what may it be supposed that he leave his estate to him, by such specialties may have consisted straightway disponing it to him, re
* See Juridical Styles, Vol. I.
serving his own liferent? The an- gratuitous deed ; and is it not usual swer must have been-“Certainly it for men of profuse habits to tie up does ? It was for the benefit of such their own hands by bonds of interunfortunate persons as you, in a great diction, which, when duly proclaimed measure, that the act was made, and and registered, have the effect of reyou must not suppose that our work straining them? It is true, that the has been so deficient as to miss al. Act 1685 says nothing on the subject; most our sole purpose;" besides, in and the reason is, that it was unneanswer to what may be founded on cessary, it being completely under. the expressions which seem to limit stood, that, at common law, a prothe word heir, so as to make it mean prietor could restrain himself. The substitutes, and not the institute of statute was only suppletory of the coman entail, we hold that such interpre- mon law, as to confirming powers, tation is far too narrow; and proba- and for the institution of the means bly the decisions in the case of Dun- of promulgation of all restraints by treath, and other actions, proceeded entail, wherever imposed ; so that from the notion so prevalent in those there seems to be little doubt, that days, that entails were stricti juris ; a talzie, duly recorded, and followed an idea now in a good measure de- by a registered infeftment, ought to be parted from. The point for determi, held good against the entailer himself, nation there, however, was not whe as well as others, providing that he is ther, according to the Statute 1685, duly constituted institute, and that an entailer could bind the institute, the irritant and resolutive clauses but whether, in particular instances, are made applicable to him. Lord he had actually bound him. We may Redesdale, in the able speech made further add, that the Roman law by him on this case, preserved in the was much more prevalent in this Appendix to Mr Sandford's Treatise, country in 1685 than it is now. Ac- stated, that he considered it to be cording to the analogy of it, the in- competent for an entailer to bind stitute was more the hæres than the himself as institute of his entail, and substitute ; and it is fair thus to ar he referred to two cases as confirmgue, that, instead of protecting the ing his opinion. The first was that institute against the imposing of re of the Duke of Athole, in 1816. His strictions, it was the direct intention Grace possessed the estate of Tulliin that act to lay them on him, as bardine, which was entailed, and more properly an heir than any other. that of Wester Kinnaird, which was But farther, in point of actual practice, unentailed: he obtained an Act of is it not quite customary for an en Parliament for loosing the first of tailer to bind the institute as well as them from the entail, and for entailthe substitutes of his entail ?
ing the other in its place; and the There seems to have been no in- Court of Session, in fixing the terms competency, therefore, in John Vans of the new entail, ordained that His having bound the institute of his Grace should make it to “ himself entail by the irritant and resolutive and the heirs whatsoever of his body, clauses in it. The question is a little whom failing,” &c. In the other case, more difficult, whether it was com which was that of Mr Kennedy of petent for him to constitute himself Dunure, in 1817, where unentailed the institute, and so bind himself by lands were substituted for others those clauses? But there appears to
which were entailed, and Mr Kennehave been nothing whatever incom- dy, also, by the Court's authority, dispetent in thus binding himself, ac poned the unentailed lands to himself, cording to the genius of our law, as institute, and bound himself by for, according to the spirit of the Act all the conditions of the new entail. 1621, men are presumed to be al From these two cases, it appeared lowed to dispose of, and, a fortiori, that it is competent for an entailer to to bind their estates and themselves bind himself as institute; but there even gratuitously, except in so far as might be, besides, this special reason they are obstructed by that Statute: in both of these instances, that the besides, is it not competent for a land- Duke and Mr Kennedy were already holder to reduce himself even to the bound, as substitutes holding the old situation of a liferenter by his own entailed estates, and these obligations
imposed upon them by the new ones, lenders, or merchants giving credit, were, in fact, no more than transfer- unless it is not only recorded in the ences of the burdens to which they register of entails, but also followed were already subject; and further, by infeftment duly recorded in the in point of expediency, it was neces register of sasines : BOTH of sary that the restrictions should be these are required by the Act, the imposed on them, for, had not that absence of any one of them is as fatal been done, the lands might have been to the entail, as if it were deficient in sold by the persons in possession, be both, or as if it wanted any of the ing thus free from the limitations of most formal clauses. Let us now no, any entail at all. These views seem tice what effect these considerations to lead to the inference, that a pro- ought to have in this case. prietor of lands may bind himself as We have already seen, that John institute of his own entail, even gra. Vans, when he executed and recorded tuitously; and this, when duly com his entail in 1758, owed £.1500 ; of pleted, according to the Statute, course his tailzie could not affect that would be no greater stretch of power part of his debt; but then he went on than interdicting himself by his own contracting further debt, so that at deed, and proclaiming and recording the final completion of the tailzie, by the interdiction ; but, in considering recorded sasine in 1775, he had conthe present question, it is not neces tracted £.8000 more; now, it follows sary to concede so much, because the directly from the above principles, deed executed by Mr Vans was not that the entail must be equally un. gratuitous, but onerous.
availing against this last, as against It being, therefore, as it is humbly the former part of the debt, because, apprehended, established that Mr until the infeftment, the tailzie could Vans's writing was a deed not of sale, not operate, and was equal to no entail but of entail, and competently made at all : it was of no consequence that applicable to himself, let us apply the the entail had been put into the re, laws of entail to it, which must be gister of tailzies in 1758, because the done by reference to the direct terms Statute required also something else, of the Act 1685. Now, what are viz. the recorded sasine, and that had these terms ?
been omitted until 1775, when this By that Statute, it is enacted, that additional debt had already been
such lailzies shall only be allowed, contracted. It is no good argument in which the irritant and resolutive to a money-lender, who was a credia clauses are inserted in the procura, tor, that he might have known of tories of resignation, charters, pre- the entail from the register of tailcepts, and instruments of sasine," zies : his sound answer would be, and further, when the entail is pre “ True, I knew that such a writ, sented to the Court of Session, and ing existed, but I also was aware recorded by its authority. Now, the that one of the means of publication meaning of this is precisely, that a ordered by the Act had not been a. deed does not become an efficient dopted; I knew that, when the Sta. entail merely by having resolutive tute directed solemnities, each of and irritant clauses in it, but that them was made requisite; and while two other requisites must also concur; no infeftment was taken on this tailIst, that the tailzie shall be registered zie, I considered that qua creditors, in the register of entails; and, 2d, it was no better than so much waste that infeftment shall follow on it, con paper ; just on the same principles, taining a recital of all the conditions that though an inhibition were known and restraining clauses infit; and, as a to be written, signeted, and executed, necessary consequence of this last, it it could have no effect, without the must further go into the register of completion of it by both and each of sasines, in terms of the Act 1617, the means of promulgation ordered which declared that all sasines must by the law regarding it.”. be registered within sixty days. Sup This doctrine is distinctly suppose, therefore, an entail is ever so ported by the case of Telford Smol: full and regular in point of clauses, iet, 14th May 1807, which, though it can have no effect against the it varied a little in circumstances, world, and with purchasers or money agreed with this case in principle.