A party founding on an entail created by a procuratory of resignation dated in 1687, raised an action to have it found that under the Act of 1690, cap. 33, on the attainder in 1746 of one of the heirs of entail, nothing passed to the Crown but the life interest of the attainted heir, and that on his death the estates reverted to the heirs nominated in the deed. The action was dismissed (the House of Lords aff.) on the ground that it was essential to the plea stated that the deed of entail should be recorded, which had not been done.
A second action was then brought founding on a Crown charter following upon the above-mentioned procuratory of resignation, and containing a provision that on the attainder of any of the heirs of entail the estate should revert to the next heir in succession. It was maintained that the charter was a fresh grant importing a new title apart from the entail.
Held ( aff. judgment of Court of Session) (1) that the sole warrant for the charter being the procuratory of resignation, it was a mere charter by progress, the conditions of which as founded upon could not be held to affect the superior’s right, and could have no such result as was contended for; and (2) that the terms of the entail, and the history of the title following upon these down to the date of the attainder, further precluded the action.
Observed by the Lord Chancellor that even if the charter had been an original royal grant it was doubtful how far it would have protected a subject from the constitutional consequences of an attainder for high treason.
Judges:
Lord Chancellor, Lord O’Hagan, Lord Blackburn, and Lord Gordon
Citations:
[1877] UKHL 258, 15 SLR 258
Links:
Jurisdiction:
Scotland
Land
Updated: 12 July 2022; Ref: scu.639646