Scottish Court of Session Decisions

Subject_1 TAILZIE.
Subject_2 SECT. I.

Nature and Effect.

Patrick Stewart and Others,
v.
Robert Vans-Agnew

Date: 3 March 1784
Case No. No. 52.

Mutual entail, imposing its restraints on the granters, not good against creditors.

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John Vans of Barnbarroch, married a daughter of Robert Agnew of Sheuchan. Afterwards a contract was executed, one part of which was, an entail by Mr. Agnew, of his estate, upon his daughter and her husband, their issue, and a series of other heirs in substitution; and the counterpart, a destination by Mr. Vans, in the same terms, respecting his lands. This mutual tailzie contained conditions prohibiting the granters as well as the heirs from alienating the lands, or affecting them with debt, which were guarded by the usual irritant and resolutive clauses. It was farther completed by infeftment.

Stewart, and other creditors of Mr. Vans, having instituted against Robert Vans-Agnew his son, and the first heir of the entail, an action of reduction of that deed,

Pleaded: The efficacy of entails, in general, might justly have been questioned before 1685. By the statute indeed which passed in that year, every doubt on this head was removed, and validity imparted to entails; but it was to those only which correspond to the description of the enactment, or in the structure of which its directions are observed. These, therefore, are now the only valid entails; the effect of them at common law, (of such, at least, as like the present, are made real by infeftment) being thus precluded. Now, an entail which imposes festers on the entailer himself, is evidently no object of the statute under consideration, the express terms of which exclusively refer to the limitations of property in the person of heirs, alone; a distinction of the most important, kind, since it is obvious, what dangerous sources of fraud would otherwise be opened up.

Answered: The contract in question was an onerous deed, the one entail being made in consideration of the other; and the power of executing such a bargain seems to be inherent in the right of property.

Observed on the Bench: In order to render entails effectual, it is necessary that the right of the contravener should be resolved; in which case the statute directs the next heir of tailzie, “to serve himself heir to him who died last infeft in the fee, and did not contravene;” a provision totally inconsistent with the predicament of an entailer imposing restraints upon himself. As to the tailzie in question being a mutual contract, the sole effect of that circumstance is to bar revocation ad libitum; agreeably to the decision respecting the entail of Macculloch of Barholm. See Appendix.

The Lord Ordinary having reported the cause to the Court,

The Lords found, “that the entail was not effectual against any of Mr. Van’s creditors.”

Reporter, Lord Justice-Clerk. Act. Maconochie. Alt. Honyman. Clerk, Home. Fac. Coll. No. 150. p. 235.