Scottish Court of Session Decisions

Subject_1 TAILZIE.

John Carr of Cavers
v.
George Carr of Nisbet

1751, July 19.
Case No. No. 41.

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This was a process at the instance of Cavers, as heir of entail, against his uncle, the son of a second marriage of his grandfather, and who was executor, or otherwise represented, for relieving him and the entailed estate of two large debts of the maker of the entail, which affected the estate, and which he alleged ought to have been paid by the grandfather out of the maker's personal estate, which the maker also left him by a separate deed different from the entail; to which debts the grandfather acquired right in the name of a trustee, and afterwards made them over to the creditors of his second son, who afterwards succeeded to the entailed estate, for security and payment of the debts contracted by his sons, and whereof those creditors afterwards recovered payment out of the entailed estate in consequence of a sale of it, for the sale of which an act of Parliament had been obtained. We unanimously found, 4th June, that there was no foundation for the action, and assoilzied, and this day adhered. I keep the papers, chiefly for the many new questions argued in the answers by Mr Craigie to the reclaiming bill, but which were several of them first mentioned by the Bench at giving the first interlocutor;—particularly, though the heir of line and executor are bound to relieve the heir of tailzie of debts, yet if the maker of the tailzie convey or oblige his heirs of line and executors to convey his personal estate to the heirs of tailzie, whether in that case any obligation lies on the heir of tailzie to apply the estate in payment of the debts, and to relieve the tailzied estate? 2dly, If such an obligation lies, and he does not so apply, and that the next heir has an action of damages against the general heirs and representatives of die first heir, whether that second heir can discharge it, so as to bar the third or remoter heir when he succeeds?—or if the applying those very funds to the use of the second heir will be a defence against the third or remoter heir, since the tailzied estate never was relieved? 3dly, How long that action subsists; for the first heir succeeded in 1681, and lived till 1737, whereby the sustaining action now against his representatives was in effect to oblige them to preserve all the vouchers of the debts owing by the maker of the entail for 70 years; for if these were not all preserved, it could not appear whether his other debts besides the two in question did not exhaust all his personal estate, &c. &c.