Scottish Court of Session Decisions

Subject_1 TAILZIE.

Captain Sinclair
v.
Heirs of Entail of Carlowrie

1749, Nov. 8.
Case No. No. 36.

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Henry Sinclair of Carlowrie entailed his estate to certain heirs (which is now devolved to the pursuer) under limitations, irritant and resolutive clauses,“not to alter, innovate, or infringe the tailzie, or order of succession, or to contract or take on any debts or sums of money, or grant any right or wadset rights of annualrent, or to do any other fact or deed that may any wise affect, burden, or evict the lands or others.” The subjects are the estate of Carlowrie, a house in Edinburgh, and a debt of 20,000 merks on Langtown. But it contains no express prohibition to sell; therefore Captain Sinclair pursues declarator of his power to sell, wherein he called his next heir-male and of tailzie, and the granter's heirs whatsoever, who were last called. These heirs whatsoever, who were four grand-nieces of the maker, raised a counter declarator; and the purpose of the heir's declarator was said to be to clear a sale he has made of Carlowrie. The President said it was in the same case with that of Hepburn of Keith, adjudged both here and in the House of Lords, that he might sell, and he was of opinion that so might the pursuer, and argued from all our decisions in other cases, and argued full. We all agreed, and decerned in Captain Sinclair's declarator, and assoilzied from the other, and found the letters orderly proceeded against the purchaser.