Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.

Sir William Denham of Westshiel
v.
Maitland, &c

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Sir William Denham of Westshiel settled the estate on a certain scries of heirs by way of strict tailyie, which was duly recorded anno 1723.

He was succeeded by Robert Baillie, who, in order to carry the procuratory and precept in the entail, expede a general service, as heir of provision to Sir William, under the tailyie; but, having omitted to insert the clauses of the entail in his service, a declarator of irritancy on that account was brought before the Court of Session, and decreet given in favours of Mr Archibald Stuart, the next substitute. But, in the year 1774, this judgment was reversed by the House of Peers; and Alexander, the son of Robert Baillie, succeeded. At last, upon his death, Mr Archibald Stewart succeeded a second time; and he dying without issue, the succession opened to William Lockart, the next substitute, who, at that time, resided in England.

The first steps which William took was to insist in a declarator of his right, as heir of tailyie to Sir Archibald in the estate of Westshiel; and having obtained this, he next expede a special service as heir of provision to him under the entail; and, having obtained a precept from the superior, he was infeft. But in this service he omitted to insert all the clauses of the entail.

Having his titles made up in this manner, William took a resolution to sell parts of the estate, and after public advertisements in the newspapers, which, at a public roup, were purchased by Mr Maitland of Belmont and others, as they said, without looking into Sir William Lockart's titles. But upon the looking, and finding things to stand as above-mentioned, they brought a suspension of the sale, which came to be discussed before Lord Kennet, Ordinary, who, December 1775, allowed a proof that Sir William was the last member of tailyie, and that all the others had failed, and afterwards made avizandum to the Court.

Their reason of suspension was evident, viz. the fetters of the entail duly recorded in terms of the Act 1685. Sir William's answers were two; first, he said, That, being the last member of the tailyie, the fetters thereof could not affect him; for that, failing of him, the estate would devolve upon heirs whatsoever, who were not creditors in the conditions of the tailyie; as was found in the case between The Earl of Cassillis and The Earl of March, 11 New Coll., 217. And secondly, He said, that though this had not been the case, yet the tailyie could, in this case, afford no good ground of suspension; for, having made up his titles without engrossing in them the conditions of the tailyie, onerous purchasers from him were safe, even in terms of the Act 1685.

To the first it was answered, That, in point of fact, it was not perfectly clear that Sir William was the last member of the tailyie; but, should this fact be supposed, still the decision in the case of Cassillis was a single decision, and the justice of it might be doubted; at any rate there was a distinction between the cases. In the case of Cassillis, the Earl, who was the last member of tailyie, was dead, and had died without children. The tailyie therefore was clearly at an end. But, in this case, Sir William is still alive; and though he has no children at present, yet he may have them who will be entitled to take the estate as heirs of tailyie. And, as to the second, it was answered,—That the Act 1685 secures bona fide purchasers only, which it could not be said that the suspenders were; Sir William's entail being well known to them, and mentioned in his title.

The reply maintained the precedent in the case of Cassillis; and that, as to Sir William's having children, the thing was improbable; and even if he had any, they could not quarrel, as he forfeited both for them and for himself. See 15th November 1751, Creditors of Carleton. And that it was no argument that a purchaser was not a purchaser bona fide, that he knew of an entail, if, at the same time he knew, as in this case, that, by omitting the clauses in the title-deeds, it could not strike against the purchase.

Sir William having died before advising, the cause was not decided.