Sir John Schaw, of Greenock, Bart. v. Dame Margaret Schaw, alias Houston, and Sir John Houston, Bart. her Husband

Factual and Procedural Background

In 1686, Father held The Estate in life-rent, with his eldest son (Appellant) named as fiar. The 1686 settlement reserved various powers and burdens to Father, including life-rent provisions for family members and authority to raise portions for younger children.

In March 1700, a marriage was arranged between Appellant and Respondent. Within their marriage contract, executed in duplicate before numerous witnesses, Father and Appellant created an entail (tailzie) over The Estate and additional lands. The deed:

• Named a complex series of substitutes, placing Respondent next in line should Appellant die without male issue.
• Contained prohibitory, irritant and resolutive clauses directed at Appellant and all heirs of entail.
• Reserved to Father and Appellant a joint power to alter the settlement while both lived.

No resignation, charter or sasine followed, but on joint petition of Father and Appellant the contract was recorded in the Register of Tailzies.

After Father and the five younger brothers died without issue, Respondent became next heir of entail. She sought an order from the Court of Session compelling production of the marriage contract so that it could be preserved and registered in the Books of Council and Session. Appellant instituted a counter-action seeking declarator that he, as first maker and fiar, could alter the succession except as to heirs of his marriage.

The Court of Session initially ruled (22 February 1715) that the irritant clauses did not bind Appellant. On re-hearing (15 July 1715) the Court reversed itself, finding the clauses binding even if Respondent were a gratuitous substitute, and on 30 July 1715 ordered registration of the contract and dismissed Appellant’s declarator. Appellant appealed these two interlocutors.

Legal Issues Presented

1. Whether prohibitory, irritant and resolutive clauses within a jointly executed marriage contract/entail bind the first fiar (Appellant) after the death of the co-maker (Father), notwithstanding the absence of resignation and infeftment.
2. Whether the marriage contract constitutes a “delivered evident” such that it must be registered and may be relied on by substitutes including Respondent.
3. Whether Appellant, as original fiar and putative maker of a “gratuitous” entail, retains power to alter the destination in derogation of later substitutes.

Arguments of the Parties

Appellant's Arguments

• Because he held the fee simple before the marriage contract, any entail was “gratuitous” toward later substitutes, giving him an unfettered power to alter under the common law of Scotland.
• The Act 1685 c.22 intended only to strengthen restraints on heirs of entail, not to curtail a maker’s inherent power to revoke or alter a gratuitous tailzie.
• Civil-law principles and Scottish writers (Hope, Stair, Dirleton) recognise the maker’s freedom to revoke gratuitous settlements; only onerous considerations can restrict that freedom.
• Recent decisions—Lord Lindores v Oliphant and Stewart (1714) and Scott of Harden v Scott of Raeburn—support the view that first makers cannot be tied up by irritant clauses when substitutes give no value.
• The fee remained vested in him; unlike a mere life-renter, he retained absolute property and therefore the concomitant right of alienation.

Respondent's Arguments

• A proprietor may voluntarily restrict his own right; once he executed the entail with clauses binding “himself and his heirs,” his former absolute interest became limited.
• The contract was an onerous marriage agreement, negotiated by both families; valuable consideration flowed from Father’s surrender of powers and burdens, and from life-rent provisions for the new spouses.
• Registration in the Register of Tailzies on joint petition shows delivery and completion of the deed; the absence of charter and sasine is irrelevant to the maker’s power of alteration.
• Should Appellant contravene, the next heir can obtain decree ordaining him to denude; practical difficulties in service of heirs are no defence.
• The Act 1685 dealt with the ability to bind unborn heirs, not with a maker’s capacity to bind himself; that capacity was never in doubt.

Table of Precedents Cited

Court's Reasoning and Analysis

The appellate tribunal examined the nature of the marriage contract and the circumstances of its execution. It accepted the Court of Session’s characterisation of the deed as a delivered evident, emphasising:

1. Onerous consideration. The contract was part of a negotiated marriage settlement in which Father relinquished significant reserved powers and burdens, and immediate provisions were made for the new spouses. Accordingly, the entail was not purely gratuitous.
2. Express self-restriction. The deed contained prohibitory, irritant and resolutive clauses that specifically named and bound Appellant. By signing and procuring registration, he voluntarily curtailed his own fee.
3. Delivery and registration. Although no resignation or infeftment followed, two executed counterparts were exchanged and later recorded in the statutory register at the makers’ own request. This satisfied the requirement of delivery and rendered the deed operative against the maker.
4. Irrelevance of earlier interlocutor. The Court of Session’s first decision (22 February 1715) was treated as erroneous; upon full rehearing it had correctly concluded that the clauses bound the maker even supposing the substitute were gratuitous.
5. Statutory context. Nothing in Act 1685 preserved a maker’s ability to rescind when he had expressly renounced that faculty; the Act was aimed at heirs, not the maker’s self-imposed obligations.

On this basis, the appellate body found no error in the interlocutors under challenge.

Holding and Implications

APPEAL DISMISSED; INTERLOCUTORS AFFIRMED.

The dismissal leaves intact the Court of Session’s orders declaring the marriage contract binding on Appellant, directing its registration, and rejecting his declarator. Practically, Appellant cannot alter the entail to the prejudice of Respondent or other substitutes. The decision confirms that:

• A maker who expressly subjects himself to prohibitory and irritant clauses may be bound even without charter and sasine.
• Marriage contracts containing such clauses are treated as onerous deeds once delivered and registered.

No new doctrine was announced, but the ruling reinforces the enforceability of self-imposed restrictions within Scottish entails.