Scottish Court of Session Decisions

Subject_1 TAILZIE.

Creditors of Gordon
v.
Gordon

1749, Nov. 14.
Case No. No. 37.

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

James Gordon of Carleton, in 1688, entailed his estate to the heirs-male of his body, whom failing to John Gordon, son of William Gordon of Earlston, whom failing Nathaniel Gordon of Gordonstown, whom failing to one Maitland, he assuming the name of Gordon, and the heirs-male of their bodies, and their heirs-male successive, with irritant and resolutive clauses, declaring all acts of contravention to be not only null without declarator, but also “the person or persons so contravening, each of them, and their heirs above said, shall from thenceforth lose and amit my lands and estate, and be totally secluded therefrom, sicklike as if they were naturally dead, or never had been tailzied or provided thereto, and the same shall fall and accresce to the next substitute person and heir of tailzie to succeed therein, in whose favours and their heirs-male successive, the said persons contraveners are hereby holden to denude.” Nathaniel Gordon succeeded, and conveyed it to his son In bis contract of marriage, who died before; and they two contracted large debts, so that a ranking and sale was pursued; and at last after Nathaniel's death, compearance was made for his grandson Alexander, by Alexander his son, who insisted that his grandfather had incurred the irritancies, and therefore the estate should be declared to belong to him free of the contraventions. Answered, That in case of contravention, the estate was not to descend to him but to the next substitute, for Nathaniel forfeited for himself and all the heirs of his body. Replied; only the person contravening forfeited, for the meaning of the clause was that the persons contravening, add their heirs contravening, shall lose and amit, &c. The Lords, on report of Kilkerran, found that Nathaniel forfeited for himself and the heirs of his body, and therefore that Alexander cannot quarrel the creditors' debts. 21st June 1749. This case was on a reclaiming bill heard in presence, 14th November 1749, where the questions were two, 1st, Whether Nathaniel Gordon forfeited for himself and the heirs of his body? 2dly, Whether that is competent to the creditors? William Gordon, a remote substitute, compeared and said he had an interest to compear and oppose the sale. Adhere to the first, and find that he, (Alexander Gordon) cannot object to the creditors, but remit William's claim to the Ordinary,—(quod vide No. 51.)