CHARLES ALEXANDER MOIR v Dr ROBERT GRAHAM & Ors (Court of Session)

I. The resolutive clause is not general, but contains a special enumeration of all the acts and omissions upon which the contravener is to forfeit his right to the estate. After that follows the prohibition against cutting wood, &c.; and concluding that these prohibitions are declared to be ‘under the irritant and resolutive conditions and clauses before written.’

The resolutive clause being special, it is fixed by the decision in the case of Tillicoultry and others, that the operation of clauses so worded is confined to the deeds therein named. Although the entailer had power to insert farther provisions, yet, unless these farther provisions were protected by a separate resolutive clause, they will not be protected by a reference to a previous special resolutive clause, incapable from its terms of including them.

II. Even if the resolutive clause were held to apply to the prohibitions in question, the prohibition respecting the cutting of wood is limited to the wood which was planted and in existence at the time of the entailer's death; and cannot be extended to the wood that might be planted afterwards. Prohibitions in entails cannot be carried beyond the strict letter. This prohibition applies merely to the ‘planted wood upon the lands and estate foresaid,’ which clearly means the planted wood then upon the estate; and there can be no ground for extending it farther.

With regard to the mansion-house, even if the obligation was effectual against the heir to keep the mansion-house and offices in repair, this cannot prevent him from pulling down the house, and building a new one. The meaning of the clause was, to secure the permanence of a mansion-house and offices on the estate.

II. There is no room for the distinction that the prohibitory clause against cutting planted wood applies only to the wood planted previous to the entailer's death; the prohibition is against cutting ‘any of the planted wood,’ without any allusion to the period at which it may have been planted. The planted wood is merely the opposite of natural wood, which is permitted to be cut down when ripe and fit for cutting.