The purchaser of lands tailzied under prohibitions and irritancies, against selling, &c. but without a resolutive clause, found not obliged to adhere to the bargain, as the seller's powers were doubtful.
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Allan Lockhart of Cleghorn having entered into a minute of sale with Johnston of Eastfield, for the purchase of a part of his estate; and doubting Eastfield's powers; in order to have the judgment of the Lords, suspended the minute on this ground, That Eastfield's title was a disposition from his father to him, and the heirs-male of his body, whom failing, to the father's grandchildren by a daughter; and containing a proviso, “that it should not be lawful to him, the institute, to sell or dispone the lands, contract debts, or grant securities thereon, whereby any part thereof might be evicted, burdened, or adjudged, and declaring all such dispositions, debts, or deeds, to be ipso facto void and null, and the lands to be nowise subject thereto;” all which prohibitions and irritancies were ingrossed in the sasine following thereon.
And it being alleged for the charger, That the tailzie was ineffectual against purchasers, 1mo, as not recorded; 2do, as containing no irritancy of the contravener's right;—the Lords, without further entering into the question, than to observe that the case was doubtful, and that the proper contradictors, the heirs of entail, were not in the field, “found the suspender not bound to accept of the bargain, and stand the chance of an after-challenge on so doubtful grounds.”
Fol. Dic. v. 4. p. 248. Kilkerran, (Tailzie.) No 2. p. 539.
*** C. Home's report of this case is No 70. p. 8474. voce Locus Poenitentiæ.
