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Scottish Court of Session Decisions >>
Lord Halcraig v Carmichael of Maulsley. [1703] 4 Brn 552 (8 July 1703)
URL: http://www.bailii.org/scot/cases/ScotCS/1703/Brn040552-0051.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Lord Halcraig v. Carmichael of Maulsley
Date: 8 July 1703
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Lord Halcraig having acquired the lands of Miltoun, formerly belonging to Sir John Whiteford; and finding that Carmichael of Maulsley had an apprising and infeftment of annualrent thereon, he uses an order of redemption, and pursues a declarator, that Maulsley may be decerned to accept his money and renounce, for disburdening and purging the lands.
Alleged for Maulsley, Absolvitor,—Because the redeemable rights he had on these lands were disponed to him by Sir Daniel Carmichael, by way of tailyie, under clauses irritant de non alienando, &c. so that he cannot renounce them without amitting the right and incurring the irritancies.
Answered,—That tailyie might bind him up from doing any voluntary deed, but could never stop nor impede the reverser to purge his lands, and redeem these rights by true and real payment, that being the necessary consequence and effect of law; and no deed of Sir D. Carmichael's, by tailyieing under irritancies, could prejudge the heritor to liberate his own lands from rights affecting the same.
The Lords repelled the defence, and found the tailyie could not hinder redemption; but considered that Maulsley was obliged to reemploy the money paid him under the same qualities and irritant clauses; otherwise all such tailzies of redeemable sums might be easily frustrated and evacuated. And though it was contended that none quarrelled his uplifting the sums, and that the next heir of tailyie who had the only interest did not oppose it; yet the Lords thought it pars judicis ex officio to look to the reemployment; and allowed the money to be consigned, aye till it were secured in the terms of the tailyie, at the sight of one of their number. The like was lately done in a pursuit, by Sir John Ramsay against Sir James Primrose of Carington.
