Scottish Court of Session Decisions

Subject_1 TAILZIE.
Subject_2 SECT. I.

Nature and Effect.

Creditors of Cromarty
v.
The King's Advocate

Date: 25 February 1762
Case No. No. 42.

When an entailed estate falls to the Crown by forfeiture, the debts of the forfeiting person become effectual against the Crown.

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The Earl of Cromarty being attainted of high treason for joining in the rebellion 1745, claims were entered before the Court of Session by his creditors; against which the following general objection was made, That the Earl, now attainted, possessed the estate of Cromarty under a regular entail made by his grandfather, with strict prohibitory, irritant, and resolutive clauses, against alienation and contraction; and that, as the debts contracted by him could not affect the estate as against him and his heirs of entail, as little can they affect the estate now that it is devolved to the Crown by the Earl’s attainder.

In answer to this objection, after premising that the estate of Cromarty stands entailed in the usual style of entails, prohibiting the contracting of debts, &c. “in prejudice and defraud of the subsequent heirs of tailzie, and provision above mentioned,” it was argued, That, from the nature of Scots entails, the full property is vested in the proprietor, as much as in the proprietor of a fee-simple: That clauses prohibitory, irritant, and resolutive, do not limit the property, but only bestow a privilege upon the substitutes to challenge the deeds of the tenant in tail. If they use their privilege, it has the effect to deprive him of his estate. If they forbear, his deeds, whether of alienation or contraction, are good against third parties. And if the substitates neglect to bring their challenge within forty years, such deeds come to be effectual against? them also.

The consequence is clear.—The estate is vested in the Crown by the forfriture, which deprives the substitutes of their hope of succession. They cannot challenge the Earl’s deeds, because they have no interest; and the Crown cannot challenge them, because the privilege of challenge is given to the substitutes only.

Suppose a tenant in tail should alienate his estate gratuitously, and no challenge is brought for forty years, the purchaser is secure, and enjoys the estate as a feesimple. What then will become of the disponer’s debts, such of them as are preserved alive from the negative prescription? The purchaser is liable, as having acquired the estate gratuitously, in prejudice of these debts. This supposed case has a strong analogy to the present.

To shew that a tenant in tail is complete proprietor, a case may be put of an heritable bond granted by a tenant in tail, standing unchallenged forty years after infeftment is taken. The substitutes are barred from their declarator of irritancy, both by the negative and positive prescriptions; and the infeftment must stand good till it be extinguished by payment. This could not be if the full property were not vested in the tenant in tail; for if he were barred by any limitation in his right from granting such deeds, the maxim would be applicable quod ab initio vitiosum nullo traetu temporis, convalescit; and the objection to a deed as flowing a non habente potestatum, can never prescribe.

The following interlocutor was pronounced: “In repect that, by the attainder of the late Earl of Cromarty, his estate, now vested in the Crown, is freed and discharged of all limitations, substitutions, and remainders, Find it not competent to the Crown to found upon clauses prohibitory, irritant, and resolutive, which are intended for the benefit of heirs of entail, and for them only; and therefore sustain, the claim.”

Sel. Dec. No. 191. p. 255.