An obligation in a tailzie, prestable by heirs-male, is not extinguished confusione, altho' the benefit may eventually accrue to heits of line.
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The deceast John Pringle of Cortleferry, by his contract of marriage with Alison Pringie his spouse, in anno 1632, obliged him to resign his lands in favours of himself and his spouse, and the heirs to be gotten betwixt them; whilks failzieing, his own heirs whatsomever. The said John being dead without heirs of the marriage of his body, and his lands, by the old infeftment, being tailzied to the heirs-male, James Pringle of Willanlaw has obtained himself infeft therein as nearest heir-male; and John Inglis of Mannorhead, and Marion Pringle, being heirs of line to him, and they having assigned their rights in favours of James Calderwood, he pursues the heirs-male for fulfilling the obligements in the contract in favours of the heirs of line. It was alleged, The obligements being made by the defunct, and the pursuit being at the instance of the heirs of line their assignee, and to their own behoof, debitum and creditum is confounded; and though it were not confounded, but that the heirs-male might be thought liable to the heirs of line, yet not in this case; because the old tailzie of the lands was constituted by infeftment granted by the superior, which cannot be taken away by any such naked obligement, unless infeftment had followed thereupon from the superior; because infeftments of tailzie, as they are constitute, must that same way be dissolved by an infeftment from the superior. Likeas, to clear that it was not the defunct's mind to alter the tailzie, that he did live many years after the contract, and did nothing thereupon in favours of his heirs of line, and which contract was made for the use of the wife in liferent, and the heirs of the marriage; and whereas, heirs whatsomever were substitute, failing heirs of the marriage, his meaning has clearly been of heirs whatsomever contained in his old infeftment, which were heirs-male whatsomever. Likeas, it was alleged, That, by the old infeftment granted by the superior, it was provided that the tailzie should not be altered without consent of the superior. It was answered, That where an obligement is only performed by an heir-male, especially in favours of the heir of line, there can be no confusion, the heir-male being proper debtor, and the heir of line creditor. And the question is not here, how a tailzie should be perfectly constitute or dissolved, which no doubt must be by infeftment from the superior; but here the question is upon an obligation for perfecting a tailzie, viz. for resigning in the superior's hands; which obligation the defunct's heir-male is obliged to perform to the pursuer, who will take his own way with the superior; and though there were such a clause in the old infeftment, that the tailzie should not be altered without the superior's consent, which is denied, yet that takes not away the force of the obligation against the heir-male; but that he ought to resign in favours of the pursuer, who will take his hazard of the superior, in whose favours that condition is conceived.
The Lords, before answer, ordained the old charter of tailzie to be produced, that they may consider how it was conceived, which they did, conceiving the case to be favourable for the heir-male, in respect nothing had followed upon the contract in the defunct's time; and yet their judgment was, that the obligement could not be made void, but behoved to be fulfilled, unless something more did appear from the old tailzie.
