Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.

John Mackenzie of Delvin
v.
Sir Hector Mackenzie

Date: 8 July 1777

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Notwithstanding the decision, 11 New Coll., No. 231, it is still a doubt, whether a superior is bound to grant a charter upon a tailyie, containing prohibitory clause's, upon paying composition on entry as an heir, even though the immediate heir of tailyie is also heir of line. The point occurred in a case, John Mackenzie of Delvin, pursuer, against Sir Hector Mackenzie of Gairloch. In the information for Mr Mackenzie, the question was stated thus:—How far a subject superior, who has never acknowledged a tailyie made by a vassal, can be obliged to enter an heir, under a strict entail, without receiving the composition usually paid in like cases, where the heir of tailyie, demanding the entry, is also the lineal heir of the vassal last entered. The question, it was said, was new; and that the superior's right to exact such composition had never been disputed.

In the information for Sir Hector, it was stated thus:—Whether the defender is entitled to be entered on paying a duplicando of the feu-duty, in the character of an heir; or what other claim lies against him; whether is he to be considered as a singular successor liable in a year's rent, or obliged to come in the superior's will to pay what composition shall be demanded;—the precise quantum not being defined, either by the right itself or in practice.

The question appeared to the Lords to be attended with difficulty, chiefly arising from the Act of Parliament 1685, allowing his Majesty's subjects to tailyie their lands and estates as they should think proper; for, if tailyies were lawful not only on the footing of that act, but at common law, it did not appear upon what footing superiors could refuse to enter upon an entail.

At the same time, no doubt entering upon an entail, if it could be avoided, was for the interest of the superior; and it appeared contrary to equity that a superior should be deprived of any part of the profits of his superiority, without his own act, by the mere deed of the vassal.

Difficulties occurring on both sides, and nothing fixed by practice, which appeared to be exceedingly various;—the superior, in some cases, when entering on a tailyie, receiving a year's rent, sometimes less, and sometimes even more; at other times, receiving only the duplicando, as in the common case of an heir,—the Lords seemed generally to agree, that, as Sir Hector was the heir of the former investiture, Mr Mackenzie, the superior, was bound to enter him, even upon the tailyie, as an heir, for payment of a duplicando of the feu-duty; and they found so. And several of them, particularly Lord President, thought that they should have stopt there, and gone no further; but others of them, in respect of the decision, 2d Fac. Coll., No. 231, inclined to add a reservation of the superior's claim, at the entry of any future heir of tailyie, not an heir of the former investiture; and such reservation was added accordingly,—reserving also to the heir his defences against the same. With respect to the above decision, 2d Fac. Coll., No. 231, several of the Lords doubted; and, at any rate, it is only a single decision.

The reservation in the Act 1685, as to casualties of superiority, was insisted on; but it appears to me, when carefully attended to, to mean no more than that casualties of superiority shall not be considered as debts falling under the irritancies in any tailyie; and consequently has no relation to this question.