William Dickson, v. John Dickson, William Cuninghane, and Others
Date: 10 March 1786 Case No. No. 97.
The prohibitions of an entail cannot be directed against the maker, so as to hinder his debts, though contracted after its date, from being effectual against the lands.
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William Dickson, the owner of the estate of Kilbucho, executed an entail, by charter and infeftment, in which the prohibitions, irritancies, and resolutive clauses, were directed against himself, in the same manner as against the substitutes.—Having afterwards contracted considerable debts, he was obliged to sell to Cuninghame a part of the lands comprehended under the entail. He then brought, against the substitutes, an action for trying the validity of the sale; while the purchaser at the same time presented a bill of suspension, on the ground of the seller’s want of power.
The Lords considered the entail to be altogether ineffectual in a question with the creditors of the entailer. The statute 1685, authorising settlements of that sort, related, it was observed, to the case of heirs alone, whose interest might, according to the forms therein prescribed, be limited or modified by the deed of the ancestor, from whose gift they derived the estate. But the case of the proprietor himself was left to the regulation of the common law. The maker of the entail in question might have restricted his right to a mere life-rent, or, by executing a bond of interdiction, he might have precluded his burdening the lands, unless for onerous or rational causes. These, however, were the only methods by which the order of succession marked out by him could be secured against his future contractions; the general rule being undoubted, That no man can, by any device, withdraw his estate from being liable for his debts.
The Lords decerned in the action of declarator; and at the same time refused the bill of suspension presented by the purchaser.
Lord Reporter, Stonefield.Act. Honyman,Alt. Dean of Faculty.Clerk, Orme.
Fac. Coll. No. 268. p. 415.
