The First destination in an entail being to one person in life-rent, and to another nominatim in fee, the restrictions were found not to be binding on the creditors of the latter, although some of them were directed against him, and the “other heirs of entail,” and the rest against “the said heirs.”
Click here to view a pdf copy of this documet : PDF Copy
Colonel Cathcart executed an entail of his lands of Carbiston, and others, to take effect at his death, by which, under the conditions to be afterwards mentioned in the deed, he disponed them to his niece, Mrs. Jean Campbell, in life-rent, and to her son, James Taylor, in fee; whom failing, to certain substitutes.
“The said James Taylor, his grand nephew, and all the other heirs of entail,” were enjoined to bear, without addition, the name of Cathcart Rochhead, and arms of Carbiston, or such other name and arms as the Colonel or his sister should afterwards appoint, “the fore-mentioned heirs of entail to use.”
In a subsequent clause, this condition imposed on “the said heirs of entail” is dispensed with, provided “the said James Taylor, or any of the before-mentioned heirs of entail,” should succeed to any other estate, by an entail which should make it impracticable “for such heir or heirs of entail” to assume the name of Cathcart Rochhead, &c. without some addition; in which case the “said heirs” were to have power to make what addition should be necessary to enable them to hold both estates.
The usual prohibitory clauses were directed against “the said heirs of entail.”
Liberty was given to grant leases of a certain description; “but” (it was added) “it is not to be underssood, that the said James Taylor, nor any of the said heirs of entail,” should have power to grant leases of the mansion-house and offices, with thirty acres adjoining, beyond their own lives.
The obligation to possess under the deed, was laid on “the said James Taylor, and all the other heirs of entail;” and “the said heirs of entail” were taken bound to insert the restrictions in the investitures expede by them.
The irritant and resolutive clauses were directed against “the said heirs;” but, “notwithstanding the before-written conditions, limitations, and restrictions, put upon the said James Taylor, and the other before-mentioned, heirs of entail,” power was given to the said heirs,” in right of the estate for the time, in case of the heir apparent or presumptive being under any legal incapacity to hold the estate, to renew the entail, passing him by, and likewise to grant provisions to their wives.
Mrs. Jean Campbell's life-rent was to be restricted to one half, upon the fee opening “to the said James Taylor, or the other heir or heirs of entail, the descendants of” her body. In case of her dying before her husband, the deed contained a life-rent assignment of one-fourth of the rents in his favour, which was declared binding “on the afore-mentioned heirs of entail and disponees;” and it was recommended “to the institutes and substitutes before-written, to get themselves duly infeft in the subjects.”
James Taylor, (afterwards Cathcart) made up titles in terms of the entail.
After his death, Thomas Miller, for himself, and as trustee for James Cathcart's other creditors, brought an action for payment against his son James Cathcart, as representing his father, in consequence of his succeeding to the entailed estate. The other heirs of entail were afterwards made parties.
The point at issue came to be, How far the restrictions of the entail applied to James Taylor, the institute?
The Lord Ordinary reported the cause on informations.
The arguments of the parties were substantially the same with those in the case, 22d May, 1798, Marchioness of Titchfield against Cuming, No. 73. p. 15467. and prior decisions there quoted.
The Lords considering the present to be completely settled by those cases, found, “That the late James Cathcart Taylor being institute in the entail, was not affected by the fetters thereof; and that, therefore, the defender cannot plead the entail in bar of payment of the debts contracted by his father, the said James Cathcart Taylor.”
Lord Reporter, Eskgrove.Act. Lord Advocate Dundas, R. Craigie, Hope.Alt. Solicitor-General Blair, Rolland, Monypenny.Clerk, Gordon.
Fac. Coll. No. 111. p. 253.
