Scottish Court of Session Decisions

Subject_1 REGISTRATION.

Mrs Jean Anderson, Lady Logie,
v.
Ninian Wishart of Logie

Date: 26 July 1715
Case No. No 50.

An estate was tailzied, excluding courtesy, terce, &c. The sasine was recorded, but not the tailzie itself. A relict insisting for her rerce, a defence on the tailzie was repelled, because not recorded.

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The estate of Logie being tailzied under a quality, excluding all courtesy and terce, and the late Logie infeft thereon, and his infeftment recorded, but the tailzie never recorded, as is enjoined by the act of Parliament; when the deceased Logie's relict comes to insist against the present heritor, to have her terce ascertained, this clause and quality of the tailzie was objected to her.

Answered for the Lady, That the said tailzie not being registrated, it can have no force in law, as is expressly statuted by the act 22d of Parliament 1685. And thus the Lords found in a parallel case betwixt Borthwick of Hartside and his Mother and Sisters, who pursued for an annuity and payment of bonds of provision, and he having excepted, That both were excluded by express clauses in his tailzie, and they answering, That it was not recorded, the Lords found him liable.

Replied for Logie, 1mo, That suppose it had been a provision by contract, yet she would have been excluded by the tailzie and infeftment, because her deceased husband stood publicity infeft upon the tailzie before the marriage, which infeftment being in the public record, interpelled all persons from contracting; and so it was found in the case betwixt the Creditors of Annandale and Stormont, that this infeftment was like a public interdiction. And the act 1685 does superadd a public record of tailzies, yet it has not been decided, that there must be both record of tailzies and infeftments, which were a double publication. The record of tailzies seems to be for publication, ay and while the infeftment be taken and registrated, so that a purchaser must search both; for often there is occasion of publishing the tailzie, which cannot be got easily by completing the infeftment, and yet it was necessary to tie up the fiar, which could not be done but by some publication of the tailzie; but so soon as it is completed by infeftment, and recorded, it is then as sufficient as if the tailzie had been recorded, yea, it is the more ancient and known publication. And without this interpretation of that act, the appointment of the record of tailzies would have been superfluous, especially that there is no nullity subjoined to that clause of the act which appoints the record, nor any time prefixed; whereas a nullity is subjoined to the clause anent creditors and singular successors, and to the clause appointing the prohibitory and irritant clauses to be repeated in the retours, &c. 2do, There is a difference betwixt creditors or purchasers, and those who come in by terce or courtesy; for the act was indeed made to interpel the first; but the others are not such, but only enjoy the privileges of law, according to the circumstances of the person and nature of the property, as it stands with respect to heiress or husband; so that tbe case falls nowise under the act 1685, as being neither the case of creditor nor purchaser, but only the division of an estate, as ordered by by law, upon the dissolution of the marriage. For then the Lady, as being neither creditor nor purchaser, must only take her division, in case the nature of the subject will allow of a division, which in the present case it does not.

The Lords repelled the defence on the tailzie, the same not being registrated in the particular books appointed for registration of tailzies.

Act. Sir James Nasmyth. Alt. Sir Walter Pringle. Clerk, Mackenzie. Fol. Dic. v. 2. p. 332. Bruce, v. 1. No 128. p. 167.