Scottish Court of Session Decisions

Subject_1 TAILZIE.

Hamilton
v.
Heirs of Provost Wightman

1746, June 17.
Case No. No. 29.

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A tailzie prohibiting the heirs to alter, innovate, or infringe the tailzie or order of succession, with irritant and resolutive clauses of the contravener's right and deeds of contravention, not recorded in the register of tailzies, and as to some of the lands not completed by infeftment;—the lands having been sold in 1725 by the heirs in possession who in a part of the lands were infeft, but had not inserted the clauses in their infeftments, but who in the other lands, had made no other title than a service as heirs of provision; the next heirs of tailzie (who are now no less than seven) pursue a reduction. As to the lands wherein they had been infeft I assoilzied in the Outer-House, but reported the other points this day to the Lords; viz. 1st, Whether a prohibition to alter, innovate, or infringe, was equal to a prohibition to sell, annailzie, or contract debts; 2dly, If was, whether a personal tailzie not registrate was effectual against creditors notwithstanding the act 1685. The first we decided, and unanimously found, that this tailzie contained no prohibition to sell, and therefore assoilzied. As to the second we were divided. Kilkerran and Drummore thought a personal tailzie not recorded effectual agreeably to the judgment of the House of Lords in the case Baillie against Denholm, (See No. 9 and No, 13.) The President and I thought it not effectual no more than infeftments containing all those clauses. But I doubted if it would be right for us now to judge of this, which could only serve to put the suitors to the expense of an appeal to have our judgment reversed. But the President said that was not certain. That the Peers are no more infallible than we, and often judge upon specialties, and therefore often enough vary in their cases. But the lawyers on neither side insisted for judgment, and therefore we gave none. (See Dict. No. 130, p. 15,600.)