Scottish Court of Session Decisions

Subject_1 TAILZIE.
Subject_2 SECT. III.

Prohibitory, Irritant, and Resolutive Clauses.

Stewart alias Denham
v.
Denham of Westshiells

1737. December 22. and 1738. July 11.
Case No. No. 83.

Irritancy in case of deed or omission inducing adjudication.

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Where, by a tailzie, it was declared an irritancy, “If the heir should contract debt, or do any act or deed of omission or commission, whereby the lands, or any part thereof, might be apprised, adjudged, evicted, &c;” —and by a separate clause, “That if any apprising or adjudication should be led and deduced against the lands for sums already contracted by the deviser of the tailzie; in that case the heir of tailzie for the time should be obliged to purge the same three years before expiry of the legal, otherwise to amit and lose his right to the estate, &c.”

It was first by interlocutor on report, found, “That the irritancy was incurred by the heir's suffering an adjudication to pass for the bygones of an annuity, which the deviser had constituted in favour of his now relict, as being a debt contracted through the omission of the heir, and therefore falling under the first irritancy, upon the heir's contracting or doing deeds of omission, or commission, &c.”

But thereafter, upon a petition, this was altered, and it was found, “That the irritancy was not incurred by the heir's suffering said adjudication to pass, in respect the annuities due to the relict were a debt of the tailzier's, though arising after his decease, as annual-rents suffered to grow on a personal bond granted by him would be.”

Kilkerran, No. 1. p. 538.