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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> The Earl of Roseberry v. Wm. Foulis, Esq. and Others, the Heirs-Substitutes and Creditors of the Entailed Estate of Primrose [1770] UKHL 3_Paton_654 (4 February 1770)
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Cite as: [1770] UKHL 3_Paton_654
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SCOTTISH_HoL_JURY_COURT
Page: 654↓
(1770) 3 Paton 654
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.
No. 120
v.
House of Lords,
Subject_Entail — Prohibition against Contracting Debts. —
An entail was executed of an estate, with prohibitory, irritant, and resolutive clauses, directed against the contraction of debt, or burdening the estate, or selling or alienating the same. A subsequent heir of entail having contracted debt, a succeeding heir of entail applied to the Court, for liberty to sell part of the estate for payment thereof: Held, that by the conception of the entail, the pursuer could not sell for the payment of debts. Affirmed in the House of Lords, on the special ground, that the debts were contracted since the death of the entailer, contrary to his intention.
The estate of Carrington originally belonged to Sir Archibald Primrose, and afterwards to his grandson, Hugh Lord Viscount Primrose. It stood devised by strict entail, executed by the said Archibald to his eldest son William, and the heirs male of his body, remainder to his youngest son Archibald, and the heirs male of his body, with several remainders over. It contained prohibitive, irritant, and resolutive clauses against altering the order of succession, aliening the estate in whole or in part, charging it with debts, or doing any fact or deed by which the same might be apprised or adjudged. The entail itself was lost, but charter under the great seal, 9th December 1681, passed thereupon in favour of the son, which, with the instrument of sasine, were extant; but the entail was never recorded in the register of tailzies.
In 1741, the male line of Sir William Primrose having failed, by the death of Hugh Lord Viscount Primrose without issue, James Earl of Roseberry, the appellant's father, eldest son of Archibald Primrose, the second son of the maker of the entail, was served heir of tailzie to his cousin, Lord Primrose, and was infeft in Carrington in 1742.
The question was, Whether this entail of the Carrington estate
Page: 655↓
Mar, 6, 1770.
The Court, after full memorials, “found, and hereby find, That by the conception of the entail of the estate of Primrose (Carrington) neither the pursuer (appellant) nor any of the heirs of entail, are empowered to sell any part of the estate for payment of the debts, and therefore refuse to interfere or authorise any sale for that purpose.”
Against this interlocutor the present appeal was brought to the House of Lords.
After counsel were heard, it was
Ordered and adjudged that the interlocutor be affirmed, because the debts in this case have arisen since the death of the maker of the entail, contrary to his intention, and from a cause which he could not foresee; without prejudice to the question, if the debts had been contracted by the maker of the entail, or any of his predecessors.
Counsel: For the Appellant, Jas. Montgomery.
Ex parte.