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Scottish Court of Session Decisions >>
Creditors of Humbie v Heirs of Entail. [1758] Mor 15605 (00 February 1758)
URL: http://www.bailii.org/scot/cases/ScotCS/1758/Mor3515605-136.html Cite as:
[1758] Mor 15605
An entail is not effectual against creditors, unless it have a clause resolving the right of the tenant in tail, upon contravention.
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In the year 1663, an entail was made of the Barony of Humbie, containing certain prohibitions and irritancies; particularly, That the heirs of entail shall not have liberty to alien or contract debt; but no resolutive clause against the tenant in tail who contravenes. By want of this clause, the entail was universally conidered as ineffectual against creditors. The heirs accordingly who succeeded to the estate found credit, and a ranking and sale was raised. Appearance was made for the heirs of entail, for whom it was urged, that the prohibitory clause against alienating or contracting debt was sufficient to bar the sale, without a clause resolving or forfeiting the contravener’s right. And though the contrary was established, not only by decisions, but by the opinion universally of lawyers, yet the objection was so far regarded as to occasion a hearing in presence. The established opinion however was more and more confirmed by the hearing; and the Court unanimously found, that an entail wanting a resolutive clause of the right of the tenant in tail who contravenes the will of the granter by aliening or contracting debt, cannot be effectual against creditors.
Sel. Dec. No. 146. p. 202.
*** The report of this case from the Faculty Collection is No. 86. p. 15507.
