In 1705 Sir William Douglas bound himself on marriage to provide the estate of Kelhead in favour of himself and the heirs-male of his body. He did not carry out that obligation, but in 1724 he executed a strict entail of the lands, which was recorded in the register of tailzies, but no infeftment followed upon it. He died in 1733 and, eventually, in 1751 his son, Sir John Douglas, succeeded in having the entail reduced on the ground that Sir William had had no power to entail the estate of Kelhead since it had been provided to the heirs of the marriage. Sir John was then infeft in fee simple in the estate and proceeded to borrow large sums. In due course, during Sir John’s lifetime, a process of ranking and sale of the estate was brought at the instance of his creditors, some being heritable creditors infeft and others being personal creditors who had adjudged and one of whom was infeft. Sir John’s eldest son, Captain Douglas, objected to the sale on the ground that, by serving heir to Sir William, his father had barred himself from reducing the entail. The creditors argued that, even supposing that the reduction of the entail could be taken out of the way, this could not affect their debts since the feudal right of the estate was vested in Sir John as a fee-simple without any fetters or limitations whatever and so it was liable for the payment of all his personal debts.
Held: the entail would never be more than a personal right which would not affect the creditors, since it had not been feudalised by infeftment and recording in the register of sasines. The principle in Bell -v- Gartshore applied even in cases where the creditors had not relied on the register when contracting with the debtor.
Citations:
(1765) 3 Ross’s LC 169, M 15616
Jurisdiction:
Scotland
Citing:
Applied – Bell v Gartshore IHCS 1737
The court adopted the principle that unrecorded personal deeds, such as a disposition, could not affect feudal rights. . .
Cited by:
Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Followed – Black and Grant v Gordon HL 1794
An entail had been recorded in the register of tailzies but infeftment had not followed. The House rejected the appellants’ argument that the adjudging creditors could not claim to have relied on the title as it stood in the register of sasines. . .
Cited – Russell v Ross’s Creditors; Pierse v Ross 31-Jan-1792
. .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 20 November 2022; Ref: scu.194215
