Scottish Court of Session Decisions

Subject_1 FIAR, ABSOLUTE, LIMITED.
Subject_2 SECT. I.

Obligations to Execute an Entail.

Drummond
v.
Drummond

Date: 15 July 1636
Case No. No 2.

A person being decerned, by decree-arbitral, to tailzie his lands to another, after expeding charter, and taking sasine in terms of the charter, sold the lands to a third party. The sale was sustained, in respect the decree-arbitral bore no prohibition against selling, and no fraud on the part of the seller was qualified.

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By decreet-arbitral, pronounced in anno 1614, by the Earl of Perth, betwixt James Drummond of Drumdoue on the one part, and Mr David and Malcolm Drummonds on the other part, the said James is decerned, for the onerous causes contained in the said decreet, to tailzie his lands of Drumdoue to the said Mr David and Malcolm's heirs-male, failing of heirs-male gotten of his body; whereupon action being intented by the said Mr David, the said defender alleged, That he had satisfied the said decreet, in so far as he had perfected a charter of tailzie under the Great Seal, to Mr David and Malcolm, and their heirs-male, &c. which charter he produced, and sasine conform thereto. And the pursuer replying, That the charter was ineffectual, in respect, since the date thereof, the defender had sold the lands to the Earl of Perth, whereby he had rendered the profit of the tailzie void, and made the right of succession by the tailzie to evanish, and therefore, at least, he ought to have his own money again which was given for the making of the tailzie, the Lords found the exception relevant, and proven by the charter of tailzie and sasine produced, and found, that the defender ought not in law to be compelled to render again the money alleged paid for the making of the tailzie, as being made unuseful to the pursuer, by the alienation of the lands made by the defender; for it was found, that, notwithstanding of the tailzie, the party obliged to tailzie might sell the lands, and the alienation, however it took away from the pursuer the hope and benefit of succession any ways, by virtue of that tailzie, yet it was found not to impede the party obliged to sell, upon urgent and just causes, the lands; and there was no fraud or guile qualified upon the part of the seller against him, which might make it appear that it was done to frustrate the tailzie directly, (which, if it had been alleged, might have had its own consideration); neither bears the decreet any such clause, prohibiting the party to sell the lands, nor has the party obliged himself not to sell them, nor to contract debt in his urgent affairs; nor is inhibition served thereon; neither is the defender obliged, nor decerned in the decreet to refund the money, nor is it reasonable that he should refund it, he having done all that he was decerned to do, viz. to make the tailzie, which although it should be unprofitable, yet that is upon hazard, quia emit quasi spem et factum retis, therefore the Lords assoilzied, ut supra.

This cause being called again upon the last of February 1637, it was so decided as it is here.

Act. Gilmore. Alt. Nicolson. Clerk, Gibson. Fol. Dic. v. 1. p. 304. Durie, p. 815.