HARRY LEITH LUMSDEN v HENRY LUMSDEN & Ors (Court of Session)

The entailer, in 1800, 1808 and 1812, executed deeds of entail, in all of which the prohibitory, irritant and resolutive clauses were expressed in the same terms as those of the entail of 1794.

The pursuer, as heir in possession, raised the present action against the substitute heirs of entail, to have it declared that the above irritant clause did not apply to a sale of the estate, and that he was therefore entitled to sell, and grant the necessary deeds of conveyance, and was under no obligation to invest the price in favour of the defenders, but that it should be his own absolute property.

In defence, the heirs maintained that the entail was effectual to prevent a sale, and that the irritant clause was sufficiently expressed to void a sale.

The term ‘deeds’ is of flexible meaning, and being used in the prohibitory clause in connection with debts, it cannot be held as used in a more extensive sense in the irritant clause. See Dick, ut supra ; Lord Corehouse, in Speid, ut supra ; Lord Brougham, in Lang, ut supra . The irritant clause is distinct from and independent of the resolutive clause, and therefore the use of the words ‘debts and deeds’ in the latter cannot affect their meaning in the former, which refers exclusively to the prohibitory clause.

The ‘debts and deeds’ which are declared null, are those which may be the ground of adjudication or other legal diligence, as appears not only from the clause itself, but also when compared with the clause prohibiting the contraction of debt.