Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 TAILYIE-IRRITANT CLAUSE.
Subject_3 Effect of an Irritant Clause.

James Kempt
v.
George Watt

Date: 21 Novmber 1778 Date: 28 January 1779

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[Fac. Coll. VIII. 110; Dict. 15,528.]

Braxfield. I admit that tailyies are stricti juris, and that intention will not be supplied. But here I think that the entailer has expressed his intentions. The statute has required no verba solemnia. One conveyancer expresses himself in one way; and another in another. The words in this entail are more sensible than the words generally used. The clause declaring debts null and void is improper: the proper way is to declare that the debts shall not be good against the estate; and the clause here is still more proper.

Hailes. I shall only say, that, if this clause is sufficient to every purpose, conveyancers have bestowed much useless labour in securing estates by entails. “I prohibit every one from lending money to my heir of entail,” will serve instead of all the anxious clauses hitherto devised.

Covington. This entail contains all necessary clauses. Debts are allowed to a certain extent, and therefore adjudication may follow to a certain extent; but, if the debts contracted exceed that sum, how are the creditors to be ranked.

Elliock. Here there is no irritant clause inserted, which the statute expressly requires.

Monboddo. Entails are not creatures of the law, but of the maker of the deed. An entailer may not perhaps mean to forfeit the creditors of his heir. I do not say that any precise words are required as in the formulæactionum of the Romans; but still the words must be express.

Kaimes. A man who has an entailed estate is still proprietor; therefore an adjudication against his estate is prima facie good. Query, Whether is not reduction necessary? An ipso facto forfeiture is never allowed.

On the 21st November 1778, “The Lords found that the sale cannot proceed.”

Act. J. W. Belches. Alt. G. Ferguson. Reporter, Covington. Reporter, Covington.

Diss. Elliock, Hailes.

1779. January 28.—braxfield. No person can hold an estate without paying his creditors. The maker of this entail has not so qualified it as to disappoint the creditors of the heir of entail, for he has omitted a resolutive clause, although he has thrown in clauses irritant and prohibitory. The debtor may sell, and therefore he must be obliged to do justice to his creditors. The very reason of the diligence of adjudication is to do what the debtor ought to have done, to pay his debts. As in this case, the heir of entail may sell,—the creditors may force him to sell.

President. If the heir of entail had sold, Would not the sale have been good as to the purchaser?

Justice-Clerk. I am no great friend of entails, yet, when they appear in legal form, I will do justice to them; that is, when the necessary clauses are to be found in them, clear and intelligible to every one: which is not the case here.

Monboddo. The cases of Hepburn of Keith and Sinclair of Carlowrie are contrary to the opinion given by Lord Braxfield. I think that, in this case, there are clauses sufficient for preventing the estate from being burdened. Is not this implied in the clause, that it shall not be in the power of a creditor to evict or adjudge?

President. Implied irritant clauses are not to be received. If implication is sufficient, the case of Carlowrie was wrong adjudged. This entail is absurd, for it irritates the right, and yet leaves the estate to be sold.

On the 28th January 1779, “The Lords found that the sale must proceed;” altering their interlocutor of.

Act. G. Ferguson, Ilay Campbell. Alt. J. Belches, D. Rae.