An heir of tailzie paid debts of the tailzier. His debts after contracted were found to affect the estate to that extent.
Click here to view a pdf copy of this documet : PDF Copy
Sir William Scot made a tailzie of his estate of Harden, providing that it should be lawful to the heirs at their accession to the said estate, to sell such parts of certain lands destinated and appointed by him for an adequate price, as should be sufficient for payment of his debts due at his decease, they applying the price of the said lands for payment of his said debts, at the sight of certain persons named; and failing them by decease, at the sight of the three next immediate heirs of tailzie, who should be Majors at the time; and obliging such of his heirs as had estates of their own, upon their accession to his estate, to tailzie them in the said terms, if they were not already subject to a tailzie inconsistent therewith.
After several intermediate heirs, the estate fell to Scot of Haychesters, who tailzed his own estate in the terms of the former tailzie, granting power to his heirs in the same manner, to sell thereof for payment of his debts, according to a list then made up.
Mr. Scot, during his possession, discharged the interest of the debts he found upon the estate, and part of his own debts, in lieu whereof he contracted some others, and granted bonds of provision to his children; so that, at his death, his debts were found something less than at his accession to the estate of Harden.
Walter Scot of Harden, his son, succeeded him, who pursued a declarator against the heirs of tailzie, that he was entitled to sell these lands specified in the tailzie of Harden, for the tailzier's debts lying thereon at his father's accession, and still; as also to sell his father's lands for his debts left at his death; in which, though appearance was made at first when the action was sustained, the proof led was advised ex parte.
The pursuer brought a proof of the debts due upon Harden, at his father's accession; and of the value of the lands allowed to be sold for payment thereof, part whereof it was only proposed should be sold, as they were of greater value: He also brought a proof of the value of his father's estate, and of the debts due thereon, after deducting from them his personal estate; and of the debts due at his death, including childrens' provisions, deducting as above at that time; which came to something less then they were at his accession to the estate of Harden.
At advising, two questions occurred, first, Whether Haychesters having, by his tailzie granted liberty to sell, for payment of certain debts, and having discharged these debts, he-could by new contractions rear up others to the same extent? Or, whether a possessor of a tailzied estate, paying debts thereon, and not keeping them up by assignation, the estate was not thereby cleared, and remained subject to the tailzie? And, 2dly, whereas it was said it was impossible to sell land to a precise value, tallying with the debts; and it was proposed to settle the excresce of the price, if any, on land or heritable security, in terms of the tailzie, whether the Lords could find the heir entitled to sell any more than to the amount of the debts?
The Lords found proved the value of the several lands allowed to be sold, and the sum of the debts due upon Harden at Haychester's accession to the estate, and on his own estate at his death: And found that the pursuer had right to sell as much of the lands destined in his tailzie by Sir William Scot, for payment of his debts, as would be sufficient to pay the same; and that he was entitled to sell the lands of Haychesters, &c. for payment of his father's debts, though a part thereof had been contracted since his succession to the estate of Harden; in resspect that the same was less than the sum of the debts due by him at the time; aforesaid, after application of his separate estate: And found the pursuer was entitled to apply the price thereof in the first place towards payment of the said debt, and the remainder thereof, whatever it should amount to, to be laid out upon the purchase of lands, or heritable security, in favour of the pursuer and other heirs of tailzie called by Sir William's destination; and under the same provisions, &c. that were contained in the said tailzie, to be conjoined with the tailzied estate, and to remain inseparably therewith in all time coming; providing that the sales should not be at prices under the proved value; and providing that the sales of both estates should be with consent, and the prices applied at the sight of the three next heirs-male, majors for the time,
Act. Ferguson.Clerk. Murray.
D. Falconer, v. 2. No. 249. p. 306.
