Service – Entail – Sasine – Bona Fide Possession.-
An heir of entail made up titles, disregarding the entail, and sold the estate, under the supposition that by the destination he was fiar. Held, (1 st), That he was substitute heir of entail, and as sales were prohibited, he was not entitled to sell the estate, and sale reduced. (2 d), Also held that a party who is not infeft in an estate, may make a valid entail though not infeft; but that the heir substituted, in completing his title under the entail, must expede a general service, so as to carry right to the tailzie. (3 d), Also, that as the purchaser could not plead ignorance of the records, where the entail was recorded, he could not plead bona fides, or the positive prescription. (4 th), Also, that an error in the designation of the writer of the entail, appearing in the sasine as recorded, though correct in the entail itself; and the name of the procurator to whom the symbols of infeftment were delivered, being different from the name of the procurator named in the other parts of the sasine, did not annul the sasine. (5 th), That the entail might be recorded after the death of the entailer, at suit of a remote substitute heir of entail. (6 th), That the sasine taken by the party succeeding to the entailer uninfeft, may validly contain the prohibitions, and irritant and resolutive clauses, although the anterior precept under which infeftment was taken did not contain these.
[1765] UKHL 2 – Paton – 108, (1765) 2 Paton 108
Bailii
Scotland
Updated: 11 January 2022; Ref: scu.560612