Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Margaret Laurie
v.
James Laurie

Date: 19 June 1744

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

[Elch., No. 25, Tailyie.]

The deceased Walter Laurie bought an estate, and took the disposition to himself and his heirs of tailyie, under “the restriction in the disposition of tailzie, granted by him to his other lands and estates.” Margaret Laurie, a remoter heir of entail, brought an action against the immediate heir, James Laurie, to oblige him to make up titles to the said disposition, and to insert in his right all the provisions, restrictions, clauses irritant and resolutive, contained in the tailyie referred to in the disposition.

The Lords found, That, by the word Restriction, was meant all the restrictions of the tailyie referred to, or the right so restricted, as in the former settlement; and they seemed to be of opinion, that if the heir made up his titles otherwise than as he was required, there might be room for a declarator of irritancy against him, upon the statute 1685; but they found, that, where there was no bond of tailyie, but only a simple disposition of tailyie, as in this case, the remoter heir of entail had no action against the immediate, to oblige him to make up his titles at all, or to make them up in any other form than he inclines; because every man is at liberty to make use of every right in his person, and if the immediate heir thinks he can get at the estate in any other way, he may try it, still with the risk of encountering the statutory irritancy, by which, as the evasion is punished, so at the same time it is not prohibited.

It was said, on the other side, that the remoter heir of entail was considered by our law as having an interest in the entail, and therefore he has an action against the immediate heir for exhibition and registration of the entail; and if in this case an action is refused, there is a way opened to destroy every entail, for the heir may enter without taking notice of the irritant and resolutive clauses, and then sell the estate; and, by the Act 1685, the purchaser is safe.

Notwithstanding, the Lords found that in this case action did not lie.