Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Spencer Boyd
v.
-

Date: 22 January 1766

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In this case Lord Pitfour gave his opinion, and it was the unanimous opinion of the Court, that, if an heir of tailyie possesses without the tailyie ever having been completed by infeftment, and is not the heir of the investiture, his right upon this personal deed of entail will be affected by all the qualities and conditions of the entail. This, he said, was decided in the last resort in the case of Denham of Westshiels, upon this ground,—that no creditor or purchaser can say that he deals with such an heir upon the faith of the records; and a personal right to lands, like every other personal right, is affected by every quality or condition, though not appearing upon record. In short, neither the records nor the Act of Parliament 1685 have any thing to do with personal rights to lands; but, as the heir of tailyie in this case had been likewise the heir of investiture, he might have been charged to enter as heir of the investiture, and upon that ground the lands might have been adjudged.

N.B. The question here was concerning the validity of tacks granted by the apparent heir beyond his own life, when by the entail he was restrained from granting tacks for a longer space than his own life. But, by a majority of votes, these tacks were sustained, because it did not appear that tacks granted contrary to the prohibitions of the entail were expressly irritated, but only the debts. See infra, 4th March 1766.