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A formal tailzie was executed of a small burgage tenement, of a few acres of land, worth £.10 of yearly rent, with all the clauses usual in tailzies of great estates, for taking the name and arms of the family, allowing provisions to children to the extent of three years free rent, &c.
John Maclauchlan, the heir in possession, and whose son was excluded by the tailzie, wishing to set it aside, disponed the lands in trust, with a view of bringing a reduction in name of his trustee.
The next substitute, Anne Maclauchlan, brought a reduction and declarator of irritancy, in which she founded upon the trust disposition as an act of contravention
Objected, 1mo, Tailzies were introduced for securing the succession to estates, properly so called, and not for perpetuating a trifling burgage tenement, like that in question.
2do, The mere granting a disposition does not infer an irritancy till infeftment be taken, agreeably to the principle established, 18th July, 1722, Scot of Gala contra Creditors of Gala, Sect. 5. h. t. and ever since understood to be law, that the contracting of debt does not irritate the right of the heir contravening, till it be made real upon the estate by adjudication.
Answered to the 1st: The act 1685 is general, extending to all lands, without distinction; and tailzies even of houses in burghs are not uncommon.
To the 2d: The clause in the tailzie is express, That it shall not be lawful to sell or impignorate the subjects; and the prohibition is fortified with a proper irritant and resolutive clause. The irritancy is declared to operate ipso facto, and therefore cannot be purged. This was found even in the case of the statutory irritancy, incurred by neglecting to ingross the clauses of the tailzie in a general retour; Denham contra Denham, No. 94. p. 7275.; and it must hold a fortiori in conventional irritancies, to which greater weight is justly given.
“The Lords found, That the entail is valid: But, in respect the sale was only intended to try the question, whether or not the entail was good, and was qualified by a back-bond to that purpose? found, That no irritancy is incurred by the said sale; and therefore assoilzied the defender from the conclusions of the declarator; but sustained the reasons of reduction of the trust disposition.”
Act. Blair.Alt. G. Buchan Hepburn.Reporter, Kennet.
Fac. Coll. No. 63. p. 303.
