United Kingdom House of Lords Decisions

The appellant's grandfather, John Vans of Barnbarrow, was married to Margaret Agnew, the only child of Robert Agnew, Esq. of Sheuchan.

Sometime after the marriage, Robert Agnew and his son-in-law, John Vans, entered into an agreement, for the purpose of securing the estates of both families by a strict entail.

They, thereupon, executed a mutual entail of the Barnbarrow estate on the one side, and of the Sheuchan estate on the other. This deed was essentially, in its form, of an onerous character, and the dispositive clause bore the words—“Gives, grants, sells, and alienates.”

It turned out, on John Vans' death, that he was considerably in debt. It appeared, also, that he had been in debt at the time this transaction was entered into. His son, who succeeded, contracted more debt; and being anxious, in order to pay these, to break through the entail, so as to make these estates affectable by his father's debts, the creditors were induced to assign their claims to Messrs Stewart and Drew, as trustees for the creditors, who brought the present action of declarator and reduction to set aside the entail.

In this action two questions arose—1. Whether the proprietor of a fee-simple estate can make an effectual entail, and place himself under all the fetters thereof, so as to exclude creditors affecting the estate by diligence or otherwise? 2. Whether the entail contained an effectual prohibition against the contraction of debt?

In the Court of Session, it was held generally that the entail was not effectual against the creditors of Mr Vans, as to his estate of Barnbarrow.

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