Competition James Willison, v. Creditors of Dorator
Date: 8 December 1724 Case No. No. 15.
A tailzie not recorded, has no effect against creditors.
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In the ranking and sale of the estate of Dorator above-mentioned, this question occurred, “Whether or not a tailzie, with irritant clauses in the procuratories and precepts, but not recorded in terms of the act 1685, does void the creditors' rights?”.
For the creditors, was urged the express tenor of the act, appointing a register for tailzie, and ordaining tailzies to be insert therein; subjoining, “And being so insert, his Majesty, &c. declares the same to be real and effectual, not only against the contraveners, but also against their creditors, and other singular successors whatsoever, whether by legal or conventional titles;” whereby it is with certainty inferred a contrario sensu, if tailzies are not insert, the law does not militate, and creditors are safe; and truly was it otherwise, no reason could be given why such a register should have been appointed.
For James Willison it was contended, This act can never be understood as entirely setting aside what was always looked upon as an established principle in our law, namely, That wherever one by diligence affects a qualified right, especially when at the same time that he sees the right, he must see the quality, he can only carry that right with the quality that affects it. Upon examination of the following part of the law, this will appear to be far from the intention of the Legislature, in so far as there follows a certification in the law, “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 the person who stood infeft in the estate, without the said clauses in the body of his right:” But there is no manner of certification upon neglecting to register. From which an observation or two do naturally arise: 1mo, That it was the inserting the clauses in the infeftments and conveyances, the law considered as the proper notification to the persons who were to contract with the heir; and therefore it is, that the omission thereof should put creditors or purchasers in safety to contract, by no means the omission of registration: It cannot be otherwise accounted for, that a certification is adjected to the one provision, and none to the other; and the common rule will here apply, Casus omissus habetur pro omisso. And surely, if the reason of the thing be considered, one shall be at a loss to find any tolerable colour why a tailzie, because not registered, shall have no effect against a creditor, who at the same time has all the certification his heart can require, of his hazard in contracting with an heir of tailzie, from the heir's own rights in the ordinary record. 2do, The Lords have already found this tailzie good against the heir, though not registered: But for what reason? Not surely upon any thing in the statute literally taken: For, if according to the sense put upon it by the creditors, the tailzie is not to be allowed, or in other words, is to be no tailzie, if not registered; then it must be a simple fee even quoad the heir. But the Lords found so from the nature of the right; from which, as it can now be argued upon as law, this consequence follows, that the statute is not the sole and only governing rule in matter of tailzies: It leaves us still to be guided by maxims drawn from the nature of things, and our former established law; which still regulates the heir, and must regulate those deriving right from him, when they have not the bona fides of a purchaser to plead, or any invincible ignorance of the quality that affected the right: But at the same time, that they see the right on the faith of which they pretend to have contracted, they see it affected with a quality; and therefore cannot, in the nature of the thing, carry it free of that quality, or plead a bona fides to exeem them from it.
Replied for the creditors to the first, The certification is not adjected to the clause touching the omission of registration, for a good reason, because it has no relation to it, being calculated to oblige every heir of tailzie to repeat the clauses irritant and resolutive in his rights, in order that every heir's infeftment might be qualified by these clauses: But it never was designed that every heir should register the tailzie, one registration being sufficient for all. To the second, No argument can be drawn from heirs to creditors in this manner: A tailzie unregistered is good against the heirs, because every person is obliged to notice and know the qualities of his own right, which is no way contrary to the act 1685, ordaining tailzies to be registered, because that clause of the act, like all other clauses of publication, was intended with a view only to creditors, and with no manner of view to heirs. Nor will it follow, that an unregistered tailzie ought also to be good against creditors who have a sufficient intimation otherwise of the tailzie, since it is expressed in the infeftments: For if the law hath thought proper, for the more security of creditors, to order a publication both ways, creditors have good reason to insist upon their privilege; and though one of them might be thought sufficient security, there is no harm done in commanding both: Multitude of the law breaks not the law.
“The Lords found, That the tailzie not being registered in terms of the act of Parliament, cannot prejudge the creditors.”
Rem. Dec. v. 1. No. 52. p. 101.
*** Edgar's report of the sequel of this case is Sect. 5. infra.
