Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by JOHN EDGAR, ADVOCATE.

James Willyson, Merchant in Glasgow,
v.
The Creditors of Dorater

Date: 8 December 1724

Click here to view a pdf copy of this documet : PDF Copy

In the ranking and sale of the estate of Dorater, it was disputed betwixt Mr. Willyson, the heir of tailyie, and the creditors of his brother (who had forfeited his right to the estate, as observed 25th June, 1724,) whether or not the estate of Dorater, being tailyied with irritant clauses in the procuratories and precepts, but the tailyie not recorded, in terms of the Act of Parliament 1685, did exclude the creditors from payment of their debts.

The defence made for the heir of tailyie was, That the prohibitive, irritant, and resolutive clauses in the tailyie, being ingrossed in the procuratories of resignation, charters, and infeftments standing upon record, the creditors were not in bona fide to contract with his brother ; and, therefore, that the tailyie was effectual against them, though the same was not registrate in the register of tailyies : in support of which it was argued, that the act of Parliament was not a correctory law, but declaratory; and extended the powers of making a tailyie, by granting privileges of inserting clauses which formerly could not have been done ; but in other respects, what were formerly principles of law with respect to tailyies still subsisted; such as, when one affects by diligence a qualified right, he can only carry that right with the qualities and irritancies which affect it. 2do, That the clause of the Act, which declares such tailyies shall only be allowed, does noways respect the registration, but simply the case where the clauses irritant and resolutive are not repeated in the procuratories and precepts ; and the necessity of registration respected only such tailyies which contained clauses beyond what was the established law before. And this appeared from the certification in the law, viz. That if the said provisions and irritant clauses shall not be repeated in the rights and conveyances, the same shall not militate against the creditors or other singular successors, who shall happen to contract bona fide with a person who stood infeft in the estate, without the said clauses in the body of his right; but there is no such certification in the statute. If the tailyie should not be produced before the Lords of Session, and, if the reason of the thing is considered, creditors are fully certiorated by inspecting the ordinary record, where they may see their risk and hazard from the irritant clauses in the person's right with whom they contract.

To all which it was answered for the creditors,—That the Lords had found, that though the tailyie was not inserted in the proper register, yet the irritancies take place against the heirs of entail; and if it should likewise be found, that these irritancies are effectual against creditors, the Act of Parliament establishing a new record for that purpose must be altogether vain and to no intent. That the Lords had found otherwise, particularly in the case of Borthwick of Hartside, and Wish-art of Logie, where the present question was expressly determined in favours of the creditors. In the case which gave rise to this statute, it was complained of as a hardship, that creditors, when they lent their money on the faith of their debtor's being in possession of an opulent estate, and were not bound to know the qualities and conditions of his right; it was hard that they should be forfeited of their debts, when there was no certain law to regulate the nature of tailyies. That the statute 1685 was correctory, appeared from that clause in it, where it enacts, “That such tailyies shall only be allowed,” &c. where the requisites thereafter enjoined by the law are observed: of which this is one, that the tailyie be inserted in the particular register appointed for that purpose; and being so inserted, the same should be effectual both against the heir and creditors ; which word only shows the statute to be as much correctory, as if it had proceeded on a narrative, “That whereas it was doubted, that tailyies were effectual against creditors, as well as heirs; therefore it is statute, that such tailyies shall be effectual against creditors as well as heirs, providing that the requisites mentioned in the statute are observed.” That the word only respects the registration, appears from the immediate subsequent clause, and being so insert, &c. declares the same to be real and effectual. And as to the certification touching the omission of the clauses irritant, it had nothing to do with the present question, where the tailyie is not registered. On the contrary, the law supposes, that the tailyie had been once perfected, and that some of the subsequent heirs of entail, to be free of it, should omit to ingross. the irritant clauses when they received their rights: the once producing the tailyie before the Lords, was sufficient for all the subsequent heirs of entail; yet every heir of entail was obliged to renew the irritant clauses in his charters and infeftments.

The Lords found that the tailyie not being registrate in terms of the act of Parliament, cannot prejudge the creditors.

Act. Ja. Fergusson, sen. for Willyson. Alt. Ja. Graham, sen. Hall, Clerk.

Page 126.