Scottish Court of Session Decisions

Subject_1 TAILZIE.

Viscount Garnock
v.
Creditors of Craufurd

1747, Dec. 9.
Case No. No. 32.

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In 1708 John Lord Garnock by a minute of sale sold certain lands to Jordanhill at 19 years purchase and a feu-duty to be paid, and certain other lands to be thirled to a mill of Garnock's. Lord Garnock was heir of an entailed estate strictly limited; but as the entail was before 1685, and not recorded, so he did not insert the irritant and resolutive clauses in his own title to the estate; and his son Lord Patrick followed his example. However it was found in the last resort, that the heirs of entail could not sell lands for payment of debts affecting, or that might affect the estate; but the bona fide creditors were found safe notwithstanding the entail, and therefore this Lord Garnock got an act of Parliament enabling him to sell part of the estate for payment of debts, and sold inter alia the mill to which Jordanhill's lands were to be thirled. There never was any performance of the minute of sale on either part; yet Jordanhill being now broke, his creditors adjudged it, and inserted the lands in their summons of sale, hoping to make profit by an advance of price. Whereupon Lord Garnock pursued a reduction which was this day reported to us. It was said that Jordanhill had taken decreet of constitution against Lord Patrick anno 1713, and adjudication in 1725, but no evidence of them was produced. Most of the Lords were of opinion, that since this minute remained in nudis fini-bus contractus, a succeeding heir of entail was not bound to implement, and that the buyer was no such creditor as was secured by the act 1685. All that spoke were of that opinion, viz. Kilkerran, Arniston, Tinwald, (reporter) and Minto. I was in the chair, and doubted of the general point, though in this circumstantiate case I thought he could not be compelled post tantum temporis and such change of circumstances to implement, and the rest agreed to determine only this case, and we sustained the reason of reduction. (See No. 7.)