James Renton v. Robert Anstruther, Esq. Philip Anstruther, Esq. and Dame Sarah Anstruther

Factual and Procedural Background

In 1806, Plaintiff 1 purchased the lands of Thirdpart with funds partly supplied by her brother, Plaintiff 2, and obtained infeftment in her own name. On 5 March 1808, she executed a disposition in favour of Plaintiff 2 that contained a procuratory of resignation and precept of sasine which, however, were never acted upon.

Plaintiff 2, while in India, attempted to create an entail of the lands by two deeds dated 18 January 1810 and 19 January 1814. Neither deed was followed by infeftment in his own person. He died in 1819 en route to the United Kingdom.

His eldest son, Defendant 1, was a minor at that time. During his minority, petitions were submitted in his name to record the 1810 and 1814 deeds in the Register of Entails. He was later served heir of line, tailzie and provision to Plaintiff 2, and in 1823 received a Crown charter of resignation and confirmation based on the still-unexecuted procuratory contained in the 1808 disposition.

After attaining majority, Defendant 1 treated the estate as entailed: he enrolled as a freeholder, invoked statutory powers for improving entailed estates, and granted debt securities that expressly preserved the entail. In 1829 he conveyed the lands to trustees (Defendant 2 and Defendant 3) for payment of his debts, again acknowledging the entail.

On 1 April 1836, Defendant 1 accepted bills and promissory notes in favour of Appellant. Claiming to be a creditor, Appellant raised an action of declarator and reduction seeking to have the supposed entail declared invalid so the lands could be adjudged for debt. The Court of Session (Second Division) sustained the defences and assoilzied the defenders. Appellant appealed to The Court (House of Lords).

Legal Issues Presented

1. Whether a person holding only a personal (unfeudalised) right to land can validly create an entail by executing a procuratory of resignation that has never been perfected by infeftment.
2. Whether the general clause of assignation of “writs and evidents” in the 1810 deed effectively transferred the unexecuted 1808 procuratory so as to supply a feudal warrant for the subsequent charter in favour of Defendant 1.
3. Whether the deed of 1814 amounted to (a) a mere alteration of the 1810 entail or (b) a wholly new and inept conveyance requiring its own feudal warrant.
4. Whether Appellant, as an alleged creditor acting through trust dispositions that themselves preserved the entail, had standing to challenge the validity of the entail.

Arguments of the Parties

Appellant's Arguments

• Plaintiff 2 never obtained infeftment; therefore, at the date of the 1810 deed he held only a personal right and had no power to grant a valid procuratory of resignation.
• The 1810 deed lacks a dispositive clause; the general assignation of “writs and evidents” cannot, by itself, transmit a real or even personal right, citing Graham of Gartmore v Don.
• The resignation used to obtain the 1823 Crown charter was unwarranted: the 1808 procuratory authorised infeftment in favour of Plaintiff 2 “and his heirs whomsoever,” not in favour of the complex entail substitutes inserted in 1814.
• The 1814 deed expressly revoked the destination in so far as persons called to succeed, thereby superseding the 1810 deed but supplying no new conveyance language; hence no valid entail exists.
• If no entail exists, Defendant 1 holds the estate in fee simple and it is attachable for debt.

Respondents' Arguments

• Appellant is barred by his own title: the trust conveyances in his favour repeatedly recognise and preserve the entail; he cannot impeach what he professed to uphold.
• Defendant 1's acts of possession (enrolment as freeholder, improvements under statute, etc.) constitute acquiescence; he likewise cannot now deny the entail.
• The general assignation clause in the 1810 deed validly carried the 1808 procuratory; procuratories are universally understood in practice to pass under such clauses and thousands of titles rest on that understanding.
• The 1814 deed is merely an alteration of heirs under a reserved power, not a new conveyance; no fresh procuratory or precept is required under established authority such as the Duchal case.
• Even assuming technical imperfections, the titles were duly completed during Defendant 1's minority in compliance with personal obligations and cannot safely be reduced.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Cunninghame, sitting as Lord Ordinary, noted the judiciary’s general inclination to release property from fetters when entails are defectively executed, but warned against unsettling long-accepted conveyancing rules. He proceeded as follows:

1. Observed that although the 1810 deed was intended for joint execution, it must be read as solely the deed of Plaintiff 2. Nevertheless, utile per inutile non vitiatur: absence of Plaintiff 1’s signature did not invalidate a procuratory granted by one who held a personal right.
2. Held that a proprietor with a personal right may assign an unexecuted procuratory to heirs and substitutes under entail; procuratories are among the “rights, title-deeds and securities” universally understood to pass under a general assignation clause.
3. Distinguished Graham of Gartmore as addressing teinds, not essential conveyancing instruments like procuratories; to hold otherwise would imperil innumerable existing titles.
4. Characterised the 1814 deed as a mere deed of alteration: it expressly preserved the 1810 deed except as altered, therefore required no new conveyance or procuratory.
5. Found that Defendant 1, bound personally to comply with his father’s entail, completed the only feasible title by obtaining a Crown charter that both confirmed the 1808 infeftment and gave effect to the entail limitations.

The Second Division adopted the Lord Ordinary’s reasoning without hearing oral argument, sustained the defences, and dismissed the action.

On appeal, The Court (House of Lords) expressed concern that the matter involved principles of great importance to Scottish titles and had not been fully argued below. With consent of counsel, their Lordships remitted the entire cause to The Court of Session for viva voce argument before all the judges, including Lords Ordinary, and ordered those judges to report their opinions back.

Holding and Implications

ORDER OF REMIT: The House of Lords declined to decide the merits and remitted the cause to the Scottish Court of Session to review the interlocutor complained of after full viva voce argument and to report back.

Implications: The decision leaves unresolved the validity of entails created on the basis of an unexecuted procuratory held by someone with only a personal right. The remit signals the House’s view that any ruling could have wide-ranging consequences for Scottish conveyancing practice. No new precedent was set; the immediate effect is merely to reopen proceedings for comprehensive consideration in the lower court.