Scottish Court of Session Decisions

Subject_1 HEIR APPARENT.
Subject_2 SECT. IV.

Effect of the Apparent Heir's interference, and extent of his Interest in the Estate.

-
v.
The Earl of Lauderdale

Date: 10 June 1743
Case No. No 26.

An heir of entail, in a state of apparency, exercised a faculty to contract debt to a certain extent. It was found competent to his creditors to adjudge his interest in the estate on a charge to enter heir.

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In 1682, John Duke of Lauderdale executed a deed of entail in favour of himself, and the heirs-male of his body; whom failing, in favour of his brother Charles, in liferent, and Richard, the son of Charles, in fee, &c. The entail contained the common irritant clauses, de non alienando, et non contrahendo; and also, that all adjudications should be purged within seven years; the irritancy on which last clause is declared to be effectual, not only against the contravener, but against the heirs of his body. The entail gives a power to the heirs to contract debt to the extent of L. 40,000 Scots; and it likewise obliges the heir of entail to execute certain provisions in favour of the heirs of line. Charles and Richard executed a ratification of the entail; but after the Duke's death, Charles, without regard to the entail, on which no infeftment had followed, made up his titles to the estate as heir-male. After the death of Charles, Richard his son made up no titles, but continued in a state of apparancy, till he died in 1965; and then John his brother served himself heir cum beneficio to his remoter predecessor. An adjudication having been led against the estate for the Duke's debts, some of them were purchased by the family of Lauderdale. Sir William Sharp of Scotscraig, creditor to Richard the apparent heir, adjusted his estate from him in 1692; but the adjudication did not proceed upon a charge to enter. Again, Sir William Sharp adjudged the estate upon a charge in 1694; and within year and day of the last adjudication, Sir William Binning adjudged for a debt due to him. Sir William Sharp's adjudications were purchased in by the family of Lauderdale. In the year 1734, a reduction was brought by disponees to Sir William Binning's adjudication, against the Earl of Lauderdale, who thereupon produced the foresaid writs, alleging they were sufficient to exclude; because, 1mo, The faculty of burdening to the extent of L. 40,000 Soots could not properly be exercised by Earl Richard, he never having made up titles; and therefore it could not be adjudged by his creditors; nor could a charge supply that defect; because in this, case, an, heir is, subject to conditions and limitations which cannot be fulfilled by the creditors Charging; although, in a fee simple, where there are no conditions to fulfil, a charge may supply the defect of a service. 2do, That the adjudications above mentioned in the family of Lauderdale, were preferable and sufficient to, exclude. ——The Lords found, That it was competent to Sir William Binning, from whom the pursuers derive right as creditors to Richard Earl of Lauderdale, to adjudge his interest in, the estate on a charge to enter heir; and that, his adjudication in June 1964 does affect the estate, notwithstanding that Earl Richard was not served heir of entail; and found that the defender, heir by progress to the Duke of Lauderdale, maker of the entail containing the faculty exercised by Earl Richard, cannot exclude the pursuer's title by the expired adjudications in his person, led for the debts of the Duke of Lauderdale; and also found, That the defender cannot exclude the pursuers in virtue of Sir William Sharp's adjudication in 1962, in respect the same proceeded without any charge to enter heir against Earl Richard; nor could he exclude in virtue of Sir William Sharp's other adjudication in January 1694, in respect the pursuers adjuration is within year and day thereof.

Fol. Dic. v. 3. p. 9.