(1758) 2 Paton 17
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Subject_Entail.— Resolutive Clause.—
Imperfect resolutive clause appearing in an entail: Held, the entail not good against debts contracted in contravention of the prohibitions. But that the next heir-substitute succeeding to the contravener had good action against him and his representatives to purge the estate of such debts.
The entail of the estate of Humbie, executed before the act 1685, with prohibitions against selling, disponing, wadsetting,
1 st, That the entail was not recorded in terms of the statute 1685; 2d, That it had not a sufficient irritant clause, and, in particular, 3 d, That it had no resolutive clause, annulling and determining the right of the person contravening; and that the clause, which declared “it lawful for the next heir of tailzie, to enter and infeft themselves as heirs of tailzie in the estate; and to enjoy and possess the same, without being liable for, or acknowledging the bonds, dispositions, deeds, or other facts or rights, as shall happen to be done, contrary or derogatory to the provisions or restrictions above mentioned,”—was not a sufficient resolutive clause.
Feb. 8, 1758.
The Court repelled the objections as to the recording, and also as to the irritant clause, holding, that it was properly inserted in the entail, but sustained the objection to the resolutive clause, in respect that the entail contained no sufficient “resolutive clause, forfeiting the right of the heirs of tailzie, who should contravene the conditions and provisions thereof.”
Both parties appealed to the House of Lords, the respondent, on the point as to the non-recording of the entail, in terms of the Act 1685.
After hearing counsel, it was
Ordered and adjudged, that it appears to this House not to be necessary, in the present cause, to determine the question arising from so much of the said interlocutor as is complained of, by the cross appeal; and it is therefore ordered that the said cross appeal be dismissed; and it is further ordered and adjudged, that the said original appeal be, and is hereby dismissed, and the interlocutor complained of, affirmed.
Counsel: For Appellants,
For Respondents, C. Yorke, Al. Wedderburn.
* Hardwicke, has this note on his appeal case. “Macdowal, B. 2. Tit. 3, p. 370, material. “When the tailzie contains prohibitive clauses to contract debts, but does not bear any
irrilancy of the contravener's right, the debts are effectual;
it being against common justice that the debtor should retain his full right, and his creditors lose their payment; but in that case the next, or any other substitute, who may succeed as heir of entail to him who contravenes, has good action against him and his representatives,
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* Vide Preface.