Scottish Court of Session Decisions

Subject_1 TAILZIE.
Subject_2 SECT. III.

Prohibitory, Irritant, and Resolutive Clauses.

John Bryson of Hartfield,
v.
Robert Chapman, Writer in Glasgow, and Robert Barrie, Weaver in Hamilton

Date: 22 January 1760
Case No. No. 87.

A tailzie not irritating the contravener's right, though inhibition be used upon it, does not bar a sale.

Click here to view a pdf copy of this documet : PDF Copy

In 1716, John Bryson and John Chapman executed a mutual tailzie, whereby they disponed to themselves, and the heirs of their bodies, whom failing, to each other, and the heirs of their respective bodies, certain tenements in Glasgow, under strict prohibitory clauses against contracting debt upon the subject, or selling or alienating the same, and an irritancy of all deeds done to the contrary.

Upon this tailzie no infeftment followed, nor was it recorded in terms of the act 1685; but, in 1735, inhibition was executed upon it, at the instance of Chapman against Bryson.

In 1757, the said John Bryson entered into a minute of sale with Robert Barrie, whereby he bound himself to sell to Barrie, for a certain price, the subjects belonging to him, and contained in the entail.

Barrie suspended the minute, on this ground, That Bryson could not effectually convey the lands to him, in respect of his being bound by the entail not to sell. Robert Chapman, the son of the other tailzier, and, by the tailzie, third in succession to Bryson, appeared, for his interest, in support of the reasons of suspension.

Objected, for Bryson, to the tailzie: That it could not be any bar to a sale, as it was not recorded, nor completed by infeftment, and especially as it does not contain any resolutive clause of the contravener's right. No man can settle his estate under prohibitory and irritant clauses, that the deeds of contravention shall be annulled, without, at the same time, annulling the contravener's right, upon this plain principle, That if the estate remain with him, it must be subject to his debts and deeds.

Answered for Chapman: 1mo, As the entail remains a personal deed, a purchaser can only take the right as Bryson himself has it; and therefore barred by the prohibitory clauses binding upon him, as contained in gremio of the only title which he has to the lands, agreeable to what was found, in the last resort, in the case of Westshiel, No. 94. p. 7275. Res est integra, and the purchaser is not in bona fide to accept of the sale, when he sees the limitations; 2do, At any rate, the tailzie is secured by the inhibition. When a man obliges himself not to sell land to the prejudice of another, and inhibition follows on that obligation, it follows, that he cannot sell contrary to such obligation.

Replied for Bryson: 1mo, Purchasers are in bona fide to buy where they see no legal impediment, and are supposed to know, that the law gives no authority to limitations upon property, so as to irritate the acts of contravention, without resolving the contravener's right; which therefore distinguishes this case from that of Westshiel, where the prohibition was enforced by both irritant and resolutive clauses; 2do, The inhibition can never supply the defect in the right itself. It may secure the right tantum et tale as it is, but cannot render it more obligatory or effectual than the law has made it.

“The Lords repelled the reasons of suspension, and found the letters orderly proceeded.”

For Bryson, Hamilton Gordon, Lockhart. Alt. Jo. Dalrymple. Reporter, Woodhall. Clerk, Gibson. Fac. Coll. No. 211. p. 381.