§ Order read, for resuming Adjourned Debate on Question [2nd August], "That Mr. Speaker do now leave the Chair."
§ Question again proposed.
§ Debate resumed.
§ MR. ARTHUR ARNOLDsaid, this was a small outcome of the large promises made by the Liberal Party and Her Majesty's Government with reference to Land Law Reform in Great Britain. But no one could have sat many hours in this Parliament without having a very lively sense of the hindrances 893 which Her Majesty's Government had encountered in their efforts; and he would be the last to say that there had been any neglect on the part of the Government in this matter of Land Law Reform. He could not, however, but call attention, in presence of this very tiny measure, to what really was the promise of the Prime Minister in Scotland with reference to the Law of Entail and Settlement. The Prime Minister said—
Not only to liberate agriculture, gentlemen, but upon other, I will say upon what I think still higher grounds, I am for doing away with this Law of Settlement and Entail.Well, he (Mr. Arnold) was himself heartily for doing away with the Law of Entail and Settlement; and he should not be either impartial or just if, after having made some slight effort against the Settled Land Bill, he did not say a word in reference to a measure which was of precisely similar and equally limited scope. The great and obvious disadvantage of the results of the present Session, in which the mainspring of public opinion was turned away from great questions of reform, was, that inasmuch, as the Prime Minister and his Colleagues were unable to apply the mainspring of public opinion in this direction, the result was that a comparatively trumpery measure of this sort was brought forward, which did something, he admitted, to attenuate the practice of entail, but which, so far from abolishing entail, he believed, tended to confirm and extend its evils. Now, he would mention three figures which he thought it extremely important for the people of Scotland and the people of Great Britain to bear in mind. He asserted, without fear of contradiction, that in Scotland there were 12 persons who owned 4,500,000 of the acreage of the soil of that country; 53 Peers in Scotland, all of them possibly, and some of them actually, Members of the Upper House of Parliament, who owned two-fifths of the whole area of Scotland; and 330 persons in Scotland who held and owned two-thirds of the whole extent of that country. Most of that land, if not the entire of it, was held under the bondage of entail and settlement. He hoped the Scotch people would be moved continually to rebel against that bondage. He hoped they would in no measure or way be content 894 with this trifling measure of reform which the Government had offered to them. With all his heart he desired that they should press forward against the continuance of an evil which this Bill did something to palliate, but which he hoped would, at no distant time, be completely eradicated from the land system of the country.
§ MR. ARTHUR ELLIOT, while agreeing with his hon. Friend that this was a small Bill, thought Scotch Members must be very grateful to the noble Earl in the other House (the Earl of Rosebery), and those who had charge of the Bill in this House, that they had brought it forward, because, so far as it went, it was a satisfactory measure. But he should like to point out that there were one or two things in the Bill, nevertheless, which he would desire to see amended. The Bill proceeded on the principle that great complications had occurred, great limitations existed to the right of an owner in possession in dealing with his land, and it endeavoured to loosen the restrictions by which these owners were bound. So far good. But it provided most elaborate means by which owners might escape from those trammels. Now, that was perfectly right in respect of the difficulties which had been created by past deeds; but, for his part, he thought it far better and simpler for the future to prevent all those elaborate knots and difficult entanglements rather than simply to facilitate escape from such knots as had been previously tied. All these applications to the Court enabled an owner to get greater freedom in dealing with his land by means of an application to the Court. He required to apply to the Court. Almost nothing could be done without it. That was very well as regarded the past, and quite right and proper, because vested rights and expectations had accrued, and it was impossible to do justice to all the parties without an application to the Court to arrange the different interests. But as regarded the future, that was not so; and he ventured to say it would have been far simpler to designate on the face of the Bill what might be done, so as to constitute a fair disentail, and thus enable the parties to deal with the matter for themselves without an application to the Court. As regarded the great measure which had passed through the other 895 House this Session, the powers given to a life tenant under that Act—Lord Cairns' Act—might, to a very great extent, be exercised without any application to the Court at all, and he very much preferred that system of dealing with land. There were one or two other points which he would deal with in Committee, his object being to make the operation of the Bill more thorough, and to prevent its being evaded.
§ Question put, and agreed to.
§ Bill considered in Committee.
§ (In the Committee.)
§ Clause 1 (Short title) agreed to.
§ Clause 2 (Definitions).
§ MR. ARTHUR ELLIOTmoved, in page 1, line 12, after "Act," insert—
The expression 'heir of entail in possession' shall include any person in lawful possession of any land or estate, either directly or through trustees for his behoof, by virtue of any deed of trust intended to regulate the succession of such person, or to limit, restrict, or abridge his possession of such land or estate in favour of any future heir, so that such person is in substance, though not in name, the heir in possession of an entailed estate.The object of the Amendment was simply to prevent the Act from being evaded by the creation of deeds of trust. He was informed that a very considerable number of estates in Scotland were settled by means of deeds of trust; and it was in order that an estate so settled, where the owner under such an instrument was, in fact and substance, nothing more nor less than heir in tail, should not escape the operation of the Act. He was afraid that an Amendment dealing with Scotch law could not be rendered easily intelligible; but in this instance he had taken his form of expression in defining "heir of entail in possession" from Section 19 of the Bill as introduced into "another place" by the Earl of Rosebery. In the marginal note the clause was described in this way—"Act to be made to apply to all entails and not to be evaded by trusts;" but for some reason or other that clause had disappeared from the Bill. His object now was the same which the Bill had when originally introduced, and he desired to reinstate the substance of that clause by altering and widening the definition of the expression "heir of entail in possession." The words— 896So that such person is in substance, though not in name, the heir in possession of an entailed estate,might seem somewhat vague; but he had the authority of those who drew up the original Bill for making use of them. He had taken the definition verbatim from the Bill as introduced in the other House, and he trusted that the Lord Advocate would see his way to accept the Amendment. His only object was to make the Bill more effective and far-reaching, and to provide that it should not be evaded by the creation of deeds of trust.
§ Question proposed, "That those words be there inserted."
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he should have been exceedingly glad if the Government could have felt that it was within their power to accept this Amendment; and the best evidence of their desire in that direction was that in the Bill, as originally framed, they had introduced Clause 19, to which his hon. and learned Friend had referred. They had been very desirous, in framing the Bill, that not only those instruments which were technically entails should be struck at, but also instruments in any other form under which the evils might arise which they sought to make impossible in the case of strict entails. But it was pointed out in the course of the consideration of Clause 19 that it was somewhat vague—in fact, too vague to form a useful guide to the conveyancing profession. It was felt that it would put upon the Court in each particular case to say whether a particular instrument was or was not in substance, though not in form, an entail, and whether the rights of the heir were in substance, though not in form, the rights of an heir of entail. Now, he apprehended that in any Conveyancing Act it was essential there should be distinct definitions and clear directions given to those concerned in the preparation of the instruments with which the Act dealt. As the result of very careful consideration, and with every desire to keep the clause in the Bill, the Government felt they could not support it by such arguments as would be likely to commend themselves in either House of Parliament, or make the clause of real and practical value. On that ground it had been omitted, and—if he might venture 897 to say so—he thought the dangers which would have attended the original clause would present themselves in an aggravated form under the Amendment which his hon. and learned Friend proposed, and for this reason—by Clause 19, the Government had intended to strike at evasions. What his hon. and learned Friend proposed was to make all persons holding under instruments of the kind described heirs of entail for the purposes of this Act. Now, that would not prevent the making of such instruments, but it would clothe the persons holding under them with rights and qualities appertaining to those who held, under different instruments altogether—namely, strict entails. He had no desire to enter into technicalities; but he hoped his hon. and learned Friend would fully appreciate the remark when he said that each successive heir of entail was a full proprietor—a "fiar," as he was called in Scotland—a limited "fiar," no doubt, but still he was a "fiar"—partly by the Common Law and partly by the Statute Law, with many rights and qualities pertaining to that position. It would, therefore, be quite inappropriate to apply the rules of entail law to persons holding estates under trust deeds. Under the Scotch Trusts Acts, again, there were various powers which would enable sales to be effected, and other deeds to be done which did not apply to entails, but which would apply to the class of cases which this Amendment was intended to meet. While fully appreciating and sympathizing with the object of his hon. and learned Friend, the Government could not safely accept the Amendment.
§ MR. ARTHUR ELLIOTsaid, he wished to impress upon his right hon. and learned Friend and the Committee that it was important to frame a clause so that the heir of entail in possession, in substance, though not in name, under a trust deed, should not escape from the operations of the Bill, but be freed from the trammels of those trusts. He dare say it was quite true, as his right hon. and learned. Friend had said, that the clause, as originally drawn, was open to the objections which had been urged against it, and that it might be made to apply to cases to which it was not intended to apply. His object in desiring to reinstate the clause as it appeared in the Bill originally introduced in the other 898 House, was to bring a person who was in substance, by virtue of a trust deed, the future heir under the operation of the Bill. He wished to secure that the powers exercised under a trust deed should be the same as the powers under ordinary deeds of entail. Of course, after the statement of the Lord Advocate, he would withdraw the Amendment; but he hoped that his right hon. and learned Friend would be able to deal with the question on the Report. He wished to impress upon the Committee that the matter was not merely one of mere technicality, but one of substantial importance, and it was most desirable that persons who held under deeds of trust should not escape from the provisions of the Bill.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)would point out to his hon. and learned Friend that no person who was a mere beneficiary under a trust deed could well be in substance an heir of entail, because the attributes of the two positions were so entirely different. Power was given in the Bill to every heir of entail to sell the estate and convert the land into money. He was rather afraid, after careful consideration, that any provision dealing further with trusts than was proposed in the Bill would require to be reserved for a separate measure applicable to trusts. There were other forms of deeds than those of trust which, if found to be used for the purpose of defeating the main objects of the Bill, might be dealt with on a subsequent occasion; but his hon. and learned Friend might take it from him that, had they found these difficulties could have been overcome in the Bill, they would have endeavoured to provide for them in it.
§ Question put, and negatived.
§ Clause agreed to.
§ Clause 3 (Heirs under new entails may disentail with the same consents as heirs under old entails).
§ MR. ARTHUR ELLIOTwished to know whether the effect of this clause, taken in connection with Clause 10; if the Bill passed, would be to make the value of the expectancy under disentail payable to the heir apparent only, as would appear to be the case by the Rutherford Act, or to make the value of the expectancy payable to the subse- 899 quent heirs? Clause 3 applied to a case where the heir of entail in possession of an estate held under an entail desired to disentail the estate and acquire it in fee-simple. By the Entail Amendment Act of 1848, the consents of the three next heirs were requisite, and he desired to know if the effect of this clause, taken in connection with Clause 10, which enabled the expectancy of the nearest heir to be valued and dispensed with, was to require that the expectancy of the three next heirs should be ascertained and compensated? Was Clause 10 to be read in connection with the Rutherford Act, and, if so, would not the effect be that the heir in possession would be able to disentail the estate on paying the heir apparent only the value of his expectancy?
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he might explain that all the provisions and powers of the Rutherford Act would remain in force unless in so far as expressly altered by this Bill. It was not the purpose of this Bill in any degree to augment or diminish the number of persons who had an interest, which the law recognized, to compensation. In some cases there was only one person who had a right recognized by law, in some two, and in others three. But whatever person had a right to compensation at present would require to be compensated under this Bill. Its object was not to affect any beneficial right now existing, but simply to dispense with the necessity of the consents of persons holding such rights and to provide compensation for them. The Act of 1875 allowed the consents of second and third heirs, where there were such, to be dispensed with on payment of their value. The only step taken by Section 10 of the present Bill was to extend the same provisions to the case of the next heir.
§ MR. ARTHUR ELLIOTsaid, the Act of 1848 provided that the consents of the three next heirs should be obtained before the estate could be disentailed, whereas the 10th section of the present Bill specified the heir apparent only. What he wished to know was whether the Bill enabled the heir in possession to disentail on paying the expectancy of the next heir, or whether it would be necessary that he should also pay the value of the expectancy of the subsequent heirs?
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)thought his hon. and learned Friend was under a misapprehension. The clause simply enabled the heir of an entailed estate held under an entail dated on or after the 1st of August, 1848, to disentail the estate. In such a case, where the heir was born after that date, the consent of the heir apparent only was required, and, of course, he would receive the full value of his expectancy as compensation. But if the heir was born before that date, then the entail could not be barred except with the consent of all of those who were entitled to be compensated under the Act of 1848.
§ Clause agreed to.
§ Clause 4 (Heirs under new entails may sell, lease, feu, and charge on the same conditions as heirs under old entails) agreed to.
§ Clause 5 (Applications for authority to charge for improvements and grant leases may be made in the Sheriff Court) agreed to.
§ Clause 6 (Provisions for applications for authority to borrow, charge, lease, and feu).
THE LORD ADVOCATE (Mr. J. B BALFOUR)moved, in page 2, line 40, after Sub-section (3), to insert the following sub-section:—
When at least one-fourth part of a capital sum borrowed for improvements on an entailed estate upon the security of a terminable rent charge, in manner provided by the Entail Acts, shall have been defrayed by the heir in possession, it shall be lawful for such heir, without the consent of the nearest heir being required, and whether the cost of such improvements shall have been charged prior or subsequent to the passing of 'The Entail Amendment Act, 1875,' to avail himself of the provisions of the said Act, for the substitution of a bond or disposition in security over the estate for the remainder of such capital sum.
§ Question, "That those words be there inserted," put, and agreed to.
§ Clause, as amended, agreed to.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)moved to insert, in page 2, after Clause 6, the present Clause 20 (Improvements not charged to be deducted from valuation of estate disentailed).
§ Question, "That Clause 20 be there inserted," put, and agreed to,
901§ Clause 7 (Lease may be renewed three years before expiration).
§ MR. ARTHUR ELLIOTremarked, that the hon. and gallant Member for Aberdeenshire (Sir Alexander Gordon) had given Notice of an Amendment in this clause; but, as the hon. and gallant Gentleman was not present, he (Mr. Elliot) should like to call attention to the clause. In the side note to the clause the words were "three years," but in the body of the clause itself they were "two years." He merely wished to call attention to the discrepancy.
THE CHAIRMANpointed out that, as the hon. and gallant Member for Aberdeenshire was not present to move his Amendment, there was really no question before the Committee except the adoption of the clause as it stood.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, that in the Bill as it was introduced into the other House, the words were "three years," and it appeared to the Government that three years was a reasonable period during which the heir of entail should have power to make a new arrangement. Objections were urged by certain Members of the other House to the clause altogether, and a sort of compromise was arrived at, by which two years were substituted. He did not think it was desirable to re-open the question.
§ MR. ARTHUR ELLIOTsaid, that, upon the whole, he preferred two years to three. It was only the inaccuracy of the marginal note he desired to call attention to.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)intimated that that would be remedied when the Bill was printed as an Act.
§ Dr. FARQUHARSONasked what was the precise meaning of the term "fair rent" in the clause?
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, the explanation of the words "fair rent" was this—they simply meant such reasonable rent as could be got between two fair men bargaining in the market. One of the great evils which required to be provided for, in the old days, was against proprietors letting at inadequate rents and taking some consideration other than the rent. The clause was intended to provide that if the heir of entail desired to anticipate the period of letting, and made an arrangement with his tenant, he should do 902 so at a fair rent. Then there was another matter that required to be dealt with. It was often provided in entails that leases should not be granted for what was called a diminished rent. He was sorry to say that, owing to the depressed condition of agriculture in Scotland, at present an heir of entail, who desired to make the very best bargain he could, was not always able to get a tenant at the old rent, and the clause would enable him to let at a fair, although it might be a diminished, rent; while, on the other hand, it would prevent letting at an unfair rent, and taking in return some other consideration from the tenant, personal to the heir of entail who granted the lease, and from which the subsequent heirs would derive no benefit, such as a "grassûm" or capital payment down at the commencement of the lease.
§ SIR GEORGE CAMPBELLwished to go back to the question of renewing the lease two years before its expiration. He did not think it could fairly be said that the provisions of the Bill met the views of the hon. and gallant Member for Aberdeenshire (Sir Alexander Gordon), because he believed the proposal of his hon. and gallant Friend was that, at least, two years' notice should be given to the tenant; and, therefore, under it the lease must be renewed two years before the expiry of the existing lease. In the case of this Bill, however, the heir of entail in possession was only entitled to renew the lease within two years—that was to say, two years or less than two years, which, as regarded the merits of the case, was not quite the same thing.
§ Clause agreed to.
§ Clause 8 (Applications may be made by guardians on behalf of minors and persons under disability) agreed to.
§ Clause 9 (Curator to be appointed to persons unable to consent) agreed to.
§ Clause 10 (Consent of nearest heir may be valued and dispensed with).
THE LORD ADVOCATE (Mr. J. B. BALFOUR)moved, at the end of the clause, to add—
If the heir apparent or other nearest heir whose consent is required as aforesaid shall have assigned his expectancy or interest, and the assignee shall have intimated the assignation to the heir in possession for the time being, at any time prior to the execution of the instru- 903 ment of disentail, such assignee shall be entitled to appear at any time prior to such execution, and to demand that the value in money of such expectancy or interest shall he ascertained, and shall be entitled to a preference upon such value according to the date of the intimation of his assignation, and such preference shall be given effect to in his favour when the value of such expectancy or interest is paid or secured.
§ Question, "That those words be there added," put, and agreed to.
§ Clause, as amended, agreed to.
§ Clause 11 (Consent of heir who has disappeared).
THE LORD ADVOCATE (Mr. J. B. BALFOUR)moved, in page 4, line 33, to leave out "Act," and insert "Acts."
§ Amendment agreed to.
§ Amendment agreed to.
§ Clause, as amended, agreed to.
§ Clause 12 (Procedure when heir in possession has disappeared) agreed to.
§ Clause 13 (Provision for disposal of fund deposited or invested after fourteen years) agreed to.
§ Clause 14 (Settlements by marriage contract not to be disappointed).
§ MR. ARTHUR ELLIOTmoved the omission of the clause. He said he objected to the clause altogether. It appeared to him to be entirely inconsistent with the Memorandum which was printed at the beginning of the Bill. The last three lines of that Memorandum were—
The combined effect of these provisions will be to place it in the power of every proprietor of an entailed estate to disentail upon making full provision for the interests of other heirs in existence.But when he came to read Clause 14, he found that the intended operation of the Bill was entirely limited to cases of what would be called in England marriage settlement. He should like to point out that, looking at the English case practically, such entail as existed in England was entirely by virtue of marriage settlement. It would appear that the object of this clause was to prevent the heir of entail in possession from dealing with his estate. And why? In order to give an interest to an unborn child—a 904 child that might never be born; in fact, to a person not in existence at all, and a person who could have no interest in the estate until he was born. Until that child was born he would not be able to make his application, nor would he be able to obtain the requisite consent. There was no provision to dispense with the consent of the trustees under a marriage settlement, under certain circumstances. Therefore it came to this, that a contract of marriage by virtue of this clause would be an absolute bar to the carrying out of the intentions expressed in the last three lines of the Memorandum he had read. He hoped to see the time when limitations in regard to unborn children would be made absolutely bad. But, before that time came, he did not think it was too much to ask the Lord Advocate, on the part of the Government, to give full effect to these lines in the Memorandum affixed to the Bill.
§ Motion made, and Question proposed, "That the Clause be omitted."—(Mr. Arthur Elliot.)
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)said, he was afraid the Government could not consent to the proposal of his hon. and learned Friend, that the clause should be omitted from the Bill. It certainly raised a very important question, because if the clause were struck out the result would be to nullify those highly onerous contracts—ante-nuptial marriage contracts—in certain cases. It would altogether render void most important covenants in marriage contracts. It was quite common for the heir in possession, or the heir apparent under an entail, when entering into a marriage contract, to stipulate that the issue of the marriage should succeed to the estate in their order, and that stipulation formed one of the covenants of that highly onerous marriage contract. Marriage was entered into on the faith of it, and whilst the law stood as at present, it was a stipulation that could not be defeated. The proposal of his hon. and learned Friend to omit the clause would have the effect of defeating that stipulation on the strength of which marriage was entered into. The clause, no doubt, had the effect of preventing lands which were the subject of this obligation from being set free from the fetters of entail for a time, but only for a time, 905 Where an heir in possession or heir apparent had, under this marriage contract, undertaken an obligation that the estate should descend to the issue of the marriage, then it was quite true that the land, subject to that obligation, could not be disentailed until one of three things occurred—first, until there should be a child born of the marriage who, through the medium of his curator, could give consent to the entail being barred; secondly, until the marriage was dissolved without the existence of any issue interested in the obligation of the marriage contract securing the settlement of the estate; and, thirdly, unless the trustees of the contract consented to terms upon which they would discharge the obligation. It was very likely, he should think, that in most cases the obligations would be discharged under one or other of those methods; but if for a time the obligation should not have been discharged, the person who had solemnly undertaken an onerous contract would be bound by it. The broad ground on which the Government thought it impossible to accept the Amendment was because it would make the Bill have the effect of gratuitously defeating, and defeating without any substitute, the onerous obligation in the ante-nuptial marriage contract. What he had said was, of course, only applicable to marriage contracts which had been entered into prior to the date of this Act. There was a very marked distinction between marriage contracts entered into prior and subsequent to the date of the Act. A marriage contract after the date of the Act, if it were covenanted that the estate should descend to the issue of the marriage, would be subject to the risk of defeat by powers which would exist of barring the entail, and any person accepting a marriage contract with that obligation would take it subject to that inherent weakness. On the other hand, in the case of a marriage contract prior to the Act, a person accepting the contract would be in a different position; and, therefore, he would suggest that, while the Government could not allow the clause to be withdrawn, it should be qualified by inserting, after the word "contract," the words "entered into prior to the passing of this Act."
§ MR. ARTHUR ARNOLDsaid, that all the observations of the hon. and 906 learned Member in connection with this Bill had been of an identical character. He had always commenced his remarks by saying that as the measure was introduced into the other House, it had another form. He (Mr. Arnold) believed that when the Bill was introduced into the other House, this clause did not exist in it, but that it had been imported into it in that House. It was identical, he believed, with a clause in the Rutherford Act. In the concluding words of the Solicitor General for Scotland, the hon. and learned Member proposed what he (Mr. Arnold) should consider and accept as a radical change in the clause. The hon. and learned Member proposed that the clause should not have application to future settlements made after the passing of the Act. If the clause had stood in its entirety, and in the form to which he (Mr. Arnold) and his hon. Friend objected, he did not hesitate to say that the Bill would have been less than worthless. The pretence in the Memorandum would have been impossible, because it was impossible for the clause to place it in the power of a proprietor of entailed property to disentail. That would have been a false pretence; and he was sorry to say, furthermore, that when the Amendment of the Solicitor General for Scotland was accepted, it would still be a pretence without justification, inasmuch as the clause would not entirely carry out the promise of the Memorandum attached to the Bill. Still it was a very important concession, and would be a valuable improvement in the Bill. Provided it were proposed, he should certainly request his hon. Friend not to persevere with his Motion for the rejection of the clause.
§ SIR GEORGE CAMPBELLsaid, he also thought that the clause as it stood would nullify the whole of the Bill, and make it worthless, and he was glad the Amendment was to be made, and that the clause was not to apply to future marriage settlements. He wished to know whether it would be governed by Clause 10, and that under it a proprietor would be able to disentail an estate as he would be able to disentail any other land, or was the law to be such that, whereas all other rights and expectancies might be set aside, the marriage contract would have the effect of an absolute entail? However desirous the heir might be to get rid of an entail, he 907 might not be able to do so for 50 or 100 years, because there might be an heir with no children who might live for 50, 80, or 100 years. He would move, therefore, as an Amendment, that Clause 14 should be made subject to Clause 10.
THE CHAIRMANI must point out that it is now too late, at this stage of the Bill, to make the alteration the hon. Baronet refers to.
§ MR. ARTHUR ELLIOTsaid, he would withdraw his Motion; but he must say he should like the Government to go a little further. It was pointed out that it would be a breach of faith to the children if this provision was not carried out; but the clause would be mainly operative where there were no children at all. People might go on for 80 or 90 years without children, although in the view of the law they might have them whilst they were married and alive. He thought the Government should insert words in the clause which would enable childless people to deal with the estate as they saw fit.
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)said, he hoped the hon. and learned Member would be satisfied that there was sufficient safeguard provided in the later portion of the clause to protect the interests referred to. He did not think it was reasonable to suppose where the prospect of issue had ceased, that the trustees would refuse consent. As he would not be in Order now in proposing to introduce into the clause the words he had suggested, he would bring them forward on Report.
§ SIR GEORGE CAMPBELLsaid, he understood that no Amendment could be introduced at this stage; but he should like clearly to understand whether, as the clause would remain, it would not be possible for the heir in possession, under Clause 10, to sell the estate and put the money in the bank? If it was to be understood that this clause tied up, not only the value of the estate, but the actual estate itself, he should like to see some Amendment introduced on Report.
§ MR. ARTHUR ELLIOTI will withdraw my Amendment.
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)said, the clause as it stood would not have the effect of preventing an estate being con- 908 verted, but it would certainly prevent the interests of the issue being valued so as to set free the land and money from the fetters of entail. The case was distinct from that of entail, and the relation of the parties was quite different. In the case of entail the succeeding heirs were simply related to each other from the fact that they were in the relationship which this entail described as including succession to the land. But in the case to which Clause 14 referred, there had been a specific contract entered into between the parties with reference to the land, and it was a very different thing to make a statutory provision in the case of persons who were simply connected by relationship and interested in the entail of the land from making a specific contract, that the land should go to certain issue of the marriage. The effect of the Bill, as it stood, would be that the land might be sold; but the interest of the issue under the contract could not be valued and the value assigned, the surplus of the price being set free from the fetters of entail.
§ SIR GEORGE CAMPBELLsaid, that if he was given to understand that the land could be sold, he would be satisfied; but he hoped the Solicitor General for Scotland would consider the wording of the clause, and that, if it did not carry out the intentions expressed by him, he would amend it to that effect on Report.
§ Motion, by leave, withdrawn.
§ Clause agreed to.
§ Clause 15 (Application for order of sale);
§ Clause 16 (Procedure);
§ Clause 17 (Order of sale);
§ Clause 18 (Court may prescribe manner of sale).
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he had an Amendment to move to extend the time during which the heir might object to a sale by private treaty, and insist upon sale by public auction, from 14 days to one month.
§
Amendment proposed,
In page 7, line 10, to omit the words "fourteen days," in order to insert the words "one month.
§ Amendment agreed to.
§ Clause, as amended, agreed to.
909THE CHAIRMANI see there is an Amendment on the Paper to leave out Clause 20. That clause has been struck out here, but it will be brought on as a separate clause afterwards.
§ Clause 19 (Price to be consigned. Where price paid in consols, dividends to be paid to applicant and his successors. Where estate encumbered. Where applicant desires investment, trustees may be appointed. Powers of trustees. Purchase of lands. Investment after applicant's death).
§ Clause 20;
§ Clause 21 (Provisions to wives and children, &c, to be secured upon the fund);
§ Clause 22 (Disposition to be granted at sight of Court);
§ Clause 23;
§ Clause 24 (Piece of land sold to remain entailed estate);
§ Clause 25 (Investment of entailed money), agreed to.
§ Clause 26 (Deeds granted under authority of Court to be final).
§ Clause 27 (Application of Act).
§ MR. ARTHUR ELLIOTsaid, he had another Amendment to move, and what he had said about the first was very much applicable to what he had to say about this. A great many estates were practically entailed under Private Acts of Parliament, and where that was the case it would be found that they would escape from the provisions of this Bill.
§
Amendment proposed,
In page 11, line 7, after "entails," insert "and all existing Acts are hereby repealed, so far as inconsistent with the spirit and intention of this Act."—(Mr. Arthur Elliot.)
§ Question proposed, "That those words be there inserted."
§ MR. RAMSAYasked whether the Amendment, if it was adopted, would have the effect of repealing the Act of the Scottish Parliament of 1685? He was not himself competent to say whether such an Act would be repealed by a general expression of this nature, but he felt it desirable that that Act should be repealed. If the Lord Advocate said the Amendment would have that effect, he (Mr. Ramsay) should be very much 910 gratified, as he thought it to the interest of the State that the land should be free from all fetters or incumbrance on the free action of the person who was in possession for the time being. This was an important point, which should be fairly considered by the Committee.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, the Government could hardly accept this Amendment—it would not be safe to do so. The Amendment proposed not only that existing Acts which were inconsistent with this measure should be repealed, but also those which were inconsistent with the spirit and intention of the measure. That was not the usual form of repeal, and it might give rise to an infinite number of questions as to what was the meaning or the "spirit and intention" of this measure. The Amendment was unnecessary, because in so far as there was an inconsistency between the statutory provisions of this measure and other Acts, the latter would be repealed. If his hon. and learned Friend meant nothing beyond that, he was afraid it would be too indefinite to make it safe to adopt the Amendment. As to what had fallen from the hon. Member for the Falkirk Burghs (Mr. Ramsay), he would answer him by saying that if this Amendment were accepted, it would not totally repeal the Act of 1685; indeed, he did not think it would have a larger effect on that Act than would the provisions of this Bill without the Amendment. He quite agreed with his hon. Friend that the Act was unsuitable in its provisions, as they were originally enacted, to modern conditions, and he should not be at all sorry to see it make its final bow and disappear from the Statute Book. But as it had been modified by subsequent enactments, and as it would be modified by this Bill, it was very innocent. There was not much of it remaining, and they might soon see the residue pass away.
§ MR. ARTHUR ELLIOTsaid, they should put into the Schedule the various Acts of Parliament that were to be repealed. He wished to know if those Private Acts which were not in the Schedule were to be dealt with or not by this Bill? He failed to see why those persons who were affected by those Acts should be allowed to escape from the trammels provided by this measure.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, it was difficult to answer 911 the hon. and learned Member with respect to Acts which were not here before them. They knew all the Public Acts, and had dealt with them; but as to all the Private Acts, they could not say what they were. If the hon. and learned Member would produce those Acts, or give a reference to them, they would be glad to consider them. He (the Lord Advocate) would be ready to confer with his hon. and learned Friend before Report, to see if some words could not be adopted to deal with the case of Private Acts. His hon. and learned Friend, as one skilled in the law, would see that it would not be safe to repeal these Private Acts in general terms by this measure.
§ MR. ARTHUR ELLIOTOn that understanding I will withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause agreed to.
§ Agreed to.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he wished to move the new clause to follow Clause 7 as to leases granted at diminished rents. New clause, page 3, after Clause 7, insert the following Clause:—
§ (Leases may he granted at diminished rent.)
§
Notwithstanding any prohibition contained in any deed of entail against granting leases unless such leases are without diminution of rental, it shall be lawful for any heir of entail in possession of an entailed estate to grant leases for such period as it may be otherwise competent for him to do at a fair rent.
Provided, That it shall not be lawful for such heir to take any grassum or other consideration for granting such lease other than the rent; and if the rent shall he less than a fair rent, or if any such grassum or consideration shall be taken, such lease shall be null and void."—(The Lord Advocate.)
§ Clause read a second time, and added to the Bill.
§ New Clause, page 6, after Clause 14, insert the following Clause:—
§ (Powers of creditors of heir entitled to disentail.)
§
Where any heir of entail in possession is entitled to disentail the estate, with the consent of any other heir or heirs, or upon such consent being dispensed with by the Court, any creditor of such heir in possession, in respect of debt in-
912
curred after the passing of this Act, who has obtained decree against him for payment and charged upon the decree, shall, in the event of the debt so incurred not being paid for six months after the expiration of the charge, be entitled to apply to the Court, and the Court shall, if the said debt is not paid within three months after the date of the application, order intimation to he made to the heirs whose consents would he required or must he dispensed with by the Court in an application for disentail by the heir in possession, and in the event of any of the said heirs, or his curator, ad litem, appointed in terms of this Act, refusing to give his consent, the Court shall ascertain the value in money of the expectancy or interest in the entailed estate of such heir, and shall ordain the heir in possession to grant a bond and disposition in security over the estate for the amount so ascertained in favour of such heir, and if he refuses or fails to do so, the Court shall grant authority to the clerk of Court to execute such a bond and disposition in security, and such bond and disposition in security so executed shall be as valid as if it were executed by the heir in possession himself; and the Court shall thereafter ordain the heir in possession to execute an instrument of disentail of the estate; and if he refuses or fails to do so the Court shall grant authority to the clerk of Court to execute such instrument, and after provision is made for the interests of any other creditors whose debts are secured on the estate, the creditor aforesaid shall he entitled to affect the estate for payment of such debt, and shall have the same rights and interests therein as if an instrument of disentail had been executed and recorded by the heir in possession himself.
If the estates of such heir of entail in possession of an entailed estate shall he sequestrated for debt incurred after the passing of this Act, the trustee on his sequestrated estates shall be entitled to apply to the Court for authority to disentail the estate, and the Court shall forthwith proceed in the same manner as is directed in this section with regard to the application of a creditor."—(The Lord Advocate.)
§ Clause brought up, and read a first time.
§ Motion made, and Question proposed, "That the Clause be read a second time."
§ MR. ARTHUR ARNOLDsaid, this clause was entirely in harmony with the principle of the Bill, which made very little progress indeed. He hoped the time would come when the creditors of the proprietor of an estate would be able to get possession of the estate, and that before long they would have an Encumbered Estates Court throughout all Great Britain. That was the real remedy for the state of things, and this clause afforded a very small palliative.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he did not know that it would have been necessary for him to 913 have said anything upon this clause, had it not been that upon the question here raised, which the Government regarded as a very important question, a different view was taken in "another place." They had a very strong view, to the effect that a clause such as this should he introduced, giving to creditors of a person—at all events, in debts contracted after the passing of the Act—a right to reach his estate. The Government thought that where an heir of entail had that which would be under this Bill an asset available for the payment of his debts, he should make that asset so available, and that, if he did not do so, the law should step in to the relief of the creditors and compel him. As the clause was originally introduced, it applied to debts contracted prior as well as subsequent to the passing of the Act. But it had been pointed out that persons who entered into contracts with heirs of entail prior to the passing of this Act could not have relied to any extent upon the fund of credit which was raised by this Act; and he was very much afraid that the creditors of many heirs of entail in possession who had, prior to this time, contracted debts, had been paid in other forms, in the shape of large interest and the like, a very ample equivalent for the bad security which they had. It might be said with considerable force that if they made the clause apply to creditors in existing debts, they were inequitably increasing the security of persons who entered into usurious contracts, and it would be a fair settlement to pass the clause as the Government proposed it. He might say that there was another difficulty in the clause as it originally stood. It was pointed out that there were not very definite provisions made as to the manner in which the creditor could have his rights of access, and in which the rights of other heirs or persons interested in the estate should be provided for. They had endeavoured in this clause to meet these difficulties, and they had, in terms a good deal more detailed and ample than the terms of the original clause, given what would be a good working machinery. He must press this clause on the Committee, and he hoped they would accept it.
§ MR. RAMSAYconcurred in all that had been stated by the right hon. and learned Gentleman as to the necessity of 914 passing this clause. He felt that the Bill in its present form was but a composition of what they might look for in the early future. The right hon. and learned Gentleman had referred to the views held "elsewhere" about this measure. He (Mr. Ramsay) thought that, in the interests of the community, land should be entirely free to be disposed of by the person in possession, like any other form of property. Instead of securing land against interference by creditors, as it had hitherto been, it was the interest of the State that it should be as free from trammels as any other property. He hoped that the learned Lord Advocate would, at an early date, be able to secure the perfect freedom of all Scotland from the trammels of any settlement or entail whatever.
§ Motion agreed to.
§ Clause agreed to, and added to the Bill.
§ Schedule agreed to
§ House resumed.
§ Bill reported; as amended, to be considered upon Monday next.