Subject_1 JUS QUÆSITUM TERTIO. Subject_2 SECT. II.
Delivery for behoof of a Third Party.
The Lord Lindores v. John Stewart of Innernytie
Date: 8 December 1714 Case No. No 13.
The maker of a tailzie containing irritant clauses upon himself, and all the substitutes, has right to call for the deed as his proper evident, to be cancelled or not at his pleasure.
Click here to view a pdf copy of this documet : PDF Copy
The deceased and present Lord Lindores made a tailzie of their estate in favours of certain heirs, reserving a faculty to this Lord Lindores, who was fiar, to alter, innovate, and dispose of the estate at his pleasure.
The said present Lord Lindores did, in anno 1706, grant a procuratory for resigning the foresaid estate in favours of himself and the heirs of his body; which failing, to John Stewart of Innernytie, and other heirs therein mentioned, under prohibitory and irritant clauses, as well upon my Lord, the granter of the procuratory, as upon the other heirs of tailzie.
Upon this bond no resignation followed, nor was it registered in the register of tailzies; but both the two tailzies were put in the hands of Oliphant of Carpew, with a doquet on the paper wherein they were wrapped, written by my Lord's hand thus, ‘To the Laird of Carpew to be kept for the use of all concerned.’
My Lord Lindores pursues an exhibition of these tailzies against Carpew, and the same being exhibited in the clerk's hands, compearance is made for Innernytie, the next heir of tailzie, failing heirs of my Lord's body, who alleged, that these tailzies being put in Carpew's hand for the use of all concerned, he who was the presumptive heir had interest to crave that the tailzies might be registrated, because the last tailzie did contain prohibitory and resolutive clauses upon the pursuer himself, the granter of the procuratory, as well as other heirs; and if the tailzies were given up to him, he would cancel the same, and thereby evacuate the tailzie and order of succession; 2do, The said tailzies were depositated for the special use of the substitute heirs of tailzie.
It was answered, 1mo, to the depositation on which Innernytie founds his interest; he could not be admitted, because there was no depositation for the use of substitute heirs of tailzie, but only for the pursuer's own behoof, if he called for the same as he has done; and if he had neglected to call for them in his life, then there would have arisen an interest to the next heir of tailzie; but it can never be presumed that the custody was given to Carpew exclusive of the right of the maker of the tailzie; 2do, The pursuer being the fiar and maker of the tailzie, upon which no resignation, registration, or infeftment had followed, it continues yet as a mere destination ambulatory at the maker's pleasure, as has been frequently found, and especially in the case of Muirhead of Breadisholm * against his daughter-in-law, where Breadisholm having granted a disposition in favours of his eldest son, an infant, in fee without any onerous cause, which he afterwards cancelled, the Lords found, that he might lawfully do it, albeit infeftment had followed upon it; and sicklike, 23d June 1713, Scot of Ralburn against Scot, voce Tailzie, a tailzie being granted without an onerous cause in favours of the maker of the tailzie in liferent, and his father in fee, and failing heirs of the father and son, to other heirs of entail, the Lords found the said tailzie, while it remained in the terms of a personal right not perfected by charter and sasine, was revokable and revoked by a posterior tailzie made by the maker of the said tailzie, with consent of his father the first member.
It was replied; Unusquisque est rei suæ moderator et arbiter, et potest quam velit sibi legem decere, and as by the first tailzie there was a faculty reserved to alter, so he might as he did by the second, lay a restriction upon himself as well as the other heirs of tailzie, and renounce that faculty whereby his power of alienating, or altering ceased; and de facto the tailzie contains a clause disabling him and all substitute heirs of tailzie to alter, whereby he becomes a limited fiar, and cannot contract debt, nor alter the order of succession, in prejudice of the substitute heirs of tailzie, to whom the is jus quæsitum; and though the tailzie was gratuitous, yet being made, it is every way as binding against the maker as if it were onerous. 2do, Innernytie's interest is the more clear by
* See General List of Names.
the depositation in Carpew's hands, to be kept by him for the use of all concerned.
“The Lords found, that the pursuer, who was fiar and maker of the tailzie, had right to call for delivery of the tailzie to him as his own proper evident, notwithstanding of the prohibitory and irritant clauses above mentioned.
Fol. Dic. v. 1. p. 512. Dalrymple, No 123. p. 171.
