An irritancy not declared before forfeiture, is net proponable to evict a forfeited estate.
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David Kinloch of Kilrie, son to Dr. James Kinloch of Labathy, the brother of Sir David Kinloch, claimed the same estate, upon an irritancy incurred by the first Sir James, by disponing part of the estase, whereby he forfeit for himself and the heirs of his body; which irritancy, by an absolute disposition, was not purgeable; and therein this case differed from that of Park, No. 60. p. 4728; and though the tailzie was not recorded, it was obligatory against the heir succeeding by virtue of it, and the irritancy might have been declared against him.
Answered: There is no difference betwixt this case and that of Park; as the irritancy might have been purged by the purchaser's re-disponing; but here also there is no tailzie; the estate was forfeited by Sir James; and the claimant, who could not have taken it from a disponee, cannot over-reach the forfeiture.
The Lords found, That the tailzie upon the estate of Kinloch not being registered in terms of the act of Parliament 1685, and the irritancy not being declared before the conviction of the late Sir James Kinloch-Nevay, no claim can be sustained thereon; and therefore dismissed the claim.
