Scottish Court of Session Decisions

Subject_1 TAILZIE.

Claim of Mercer on The Estate of Lethindie

1752, July 1.
Case No. No. 47.

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In 1732 Sir Lawrence Mercer made a strict entail of his estate of Lethiudie, in favours of himself and heirs-male of his then marriage, and heirs of their bodies, whom failing to the heirs-male of his body of any other marriage, and heirs of their bodies, whom failing to certain other heirs, which was recorded in the Register of Tailzies In July that year. In 1725 he had two sons, Lawrence, and the claimant Charles; and then executed a new procuratory of resignation to himself, and his son Lawrence, and longest liver of them two, and after the death of the longest liver to the heirs of Lawrence's body, which failing to Charles, and heirs of his body, which failing, to the same series of heirs he had named in the former tailzie, with and under the whole limitations, restrictions, and clauses irritant, specially contained in the said bond of tailzie, and that they should be contained in all the charters, infeftments, &c. to follow on the said procuratory and former bond of tailzie; but did not repeat them in this last procuratory otherwise than by the said reference, neither was this last procuratory recorded in the Register of Tailzies; but upon it and the former tailzies a charter was expede to Sir Lawrence, and his son and heirs, whom failing to Charles; and the limitations, and irritant and resolutive clauses in the tailzie 1722 were all inserted, and thereupon Sir Lawrence and his son were infeft. Sir Lawrence died, and his son Lawrence possessed the estate till 1746, that he was convicted and attainted of high treason, and died in prison without issue. Charles claimed the estate as heir in remainder by the procuratory 1725, agreeably to the judgment of the House of Lords in the case of Captain Gordon. Answered, the procuratory 1725 was not recorded, and therefore not effectual by the act 1685, and by the tailzie 1722 the claimant had not a remainder, but was called to the succession only as his elder brother was, by becoming heir-male of that marriage; neither could the charter proceed upon that tailzie 1722, wherein neither his brother nor he was named, far less did give any fee to the brother. Replied, though by the law of Scotland tailzies were ineffectual against singular successors without being recorded, the law of England must be the rule of judging this case, where recording is not necessary, and by that law he had a right in remainder; nor is it necessary by that law that the forfeiting person should have been disabled to alien, for there entails can be defeated and docked by fine and recovery, and yet the heir in remainder is safe. 2dly, Recording the procuratory 1725 is not necessary by the law of Scotland, because the tailzie 1722 was recorded; and if an heir of entail were settling his estate on his eldest son, it is not necessary, nor ever practised, that that settlement should also be recorded; or if Sir Lawrence had assigned the procuratory 1722 to his son, he needed not to have either repeated all the limitations in that assignation, or to record it in the Register of Tailzies. Duplied; by the claimant's argument, the substitutes called nominatim in simple destinations of succession, would be heirs in remainder, and safe against the forfeiture of the institute; but that the laws of Scotland must be the rule of judging of our land rights in forfeitures, as well as in other cases, only it must be by analogy to the law of England; that in England, heirs of entail were saved from the forfeiture of the tenement in possession only by the statute de donis conditionalibus, which made them unalienable, and continued so even after the lawyers had devised a method of docking them, till the statute of Hen. VIII. that made all estates of inheritance forfeitable, but with a salvo of remainders, so that still the foundation is their not being in the eye of the law directly alienable, and therefore what is directly alienable in Scotland must be forfeitable, for where it is so alienable, there could be no estate created to the person in remainder. 2dly, That the procuratory 1725 alone was that on which resignation was, or could be made, though the reference made to the tailzie 1722 was warrant enough for taking into the charter the limitations in that tailzie, and therefore ought to have been recorded; and 10th January 1751, (No. 17, voce Forfeiture) we dismissed two claims founded on a tailzie of the estate of Sir James Kinloch Nevay, for that the tailzie was not recorded. The Lords dismissed the claim, because the procuratory 1725 was not recorded. Renit. tantum Drummore et Kames. For the interlocutor were President, Minto, Strichen, Murkle, Shewalton, and I. Kilkerran absent in the Outer-House.