AI-transcribed

Under a strict Scottish entail, made prior to 1848, the tenant in possession had never more than a life estate only, and consequently could not bar the entail. He may now do so with the consent of one or more of those in remainder. If born after 1848, or after the execution of any entail made subsequently, he may bar it without any consent. To make an entail effectual, it must have contained clauses prohibitory against the possessor selling, encumbering, or anew limiting the estate, irritant (avoiding) of any such acts, if he should do them, and resolutive (forfeiting) of his right to the estate in that case. These three sets of clauses constituted the fetters of a strict entail. Defect in any one avoided the entail as regards the particular procedure, whether selling, encumbering, or devising; but now it avoids the entail in all respects.

Definition source
Kinnear, J. B., Digest of House of Lords Cases Decided on Appeal from Scotland, 1709-1864 — Glossary of Scottish Law Terms (Edinburgh, 1865). Public domain.

Legal Subject: Entail

Case Date Legal Subject Abstract
Alexander Gordon of Culvenan, and Jean Macculloch, Elder Daughter of John Macculloch, Elder of Barholm v. James Dewar of Vogrie, John Macculloch Elder, and John Macculloch Younger, of Barholm 1771 Debt, Adjudication, Tailzie, Entail, Succession, Liferent John Macculloch's estate, which encompassed a considerable land-estate in the stewarty of Kirkcudbright and shire of Wigtown, was subject to a settlement containing strict prohibitive, irritant, and resolutive clauses. This case is a dispute over inheritance claims following Macculloch's death.
Alexander Irvine of Drum v. The Earl of Aberdeen, &c 1772 Debt, Estate, Adjudication, Tailzie, Entail, Aliment The estate of Alexander Irvine of Drum was heavily burdened with debts at the time of his death. The estate went through a series of family members. Through this process, some debts were relieved but others were added. The estate was sold in 1736 to cover the debts. A small part of the estate was set aside for the Irvine family, but most of the estate went to the Earl of Aberdeen or Patrick Duff of Premnay. After John Irvine of Drum's death in 1737, the successor to the estate, Alexander Irvine of Crimond, mounted a legal challenge to the settlement of the estate. The pursuer in the present case was Alexander Irvine of Drum, grandson of Alexander Irvine of Drum. The 3rd Earl of Aberdeen, taking up a cause inherited from his father, and Patrick Duff argued that the Irvine family has no valid claims against them.
Alexander Irvine v. George Earl and others 1769 Debt, Succession, Adjudication, Entail, Bankruptcy, Liferent Alexander Irvine of Drum, represented by his curators, pursued George Earl of Aberdeen, Mrs. Margaret Duff of Culter, and Alexander Udney of Udny, her husband, for an order to produce writs and deeds. The defenders filed answers to the petition in which they responded to the pursuer's demand for production.
Alexander Watson v. John Pyot 1800 Debt, Liferent, Aliment, Succession, Entail, Contract This case concerned a father’s power to dispose of an estate that was the subject of a marriage contract, to the detriment of his son by that marriage. The son, Alexander Watson Jr., was the pursuer. A marriage contract between his parents, Alexander Watson Sr. and Jane Fulertoun, required Alexander Sr. to resign the estate of Turin to himself and the heirs-male of the marriage (and failing that, to certain substitutes). While still living, Alexander Sr. gave Alexander Jr. a portion of the lands included in the contract, along with certain lands that he acquired after making the contract. Subsequently, Alexander Sr. executed a series of deeds curtailing his son’s right to the estate, including a disposition of the remaining lands in favor of John Pyot, a distant relative. Alexander Jr. sought to have these deeds set aside on the ground that they violated the marriage contract. However, John Pyot claimed that Alexander Jr. had relinquished his claim by accepting the previous conveyance from his father.
Alexander-Charles Maitland, & Others v. Dame Helen Maitland Gibson, & Spouse 1830 Compensation, Security, Succession, Debt, Tailzie, Entail Alexander-Charles Maitland and other heirs of entail pursued Dame Helen Maitland Gibson and her spouse regarding £7000 paid by a canal company for consent to route a canal through the entailed estate. The pursuers sought to have the sum paid into a bank for lawful investment under the 1827 Act, asserting it was compensation for permanent damage belonging to the entail, while the defenders answered that it represented merely the value of the land and payment for temporary inconvenience. The court found that the defenders must compensate the heirs for the permanent damage sustained by the estate from the canal deviation, with the compensation to be paid from the £7000 received for the consent.
Allardice, et all v. Allardice 1795 Succession, Liferent, Disposition, Infeftment, Heritor, Entail
Bromfield v. Paterson et al 1786 Succession, Debt, Liferent, Entail, Tailzie, Infeftment Stephen Bromfield pursued Mary Paterson, Alexander Campbell, and Henry Campbell regarding the estate of Eccles, contending that the defenders were bound by an entail and could not claim the lands without limitations. The defenders argued that the entail of 1743 and its 1755 amendment bound the succession to the barony of Eccles and lands of Stow, and further maintained that a deed of 1758 continued the prior entail, citing the precedent in Lowrie v. Spalding.
Bruce and Selkrig v. Bruce and Others 1798 Debt, Adjudication, Entail, Succession, Sequestration, Teinds James Bruce and Charles Selkrig, Trustee, argued that the entail of Tillicoultry did not bar the sale of the estate to satisfy debts. Based on the single document cataloged for this case.
Bushby 1796 Entail, Retour, Freeholder, Possession, Sasine, Teinds John Bushby petitioned to have James Gordon’s name removed from the freeholder roll for Kirkcudbright Stewartry, challenging the validity of Gordon’s land title on grounds of discrepancies and partial entailment. Based on the single document cataloged for this case.
Campbell v. Monboddo's Interlocuter 1793 Succession, Debt, Aliment, Reversion, Entail, Trustees James Campbell petitioned against Lord Monboddo's interlocutor, asking the Court to alter the ruling that the reversion of the estate's sale price must be laid out upon lands. Based on the single document cataloged for this case.
Dame Robina Pollock, Spouse to Sir Hugh Crawford, and Sir Hugh, for his Interest v. Mary Porterfield, Widow of John Lockhart of Lee 1777 Jurisdiction, Female Succession, England, Debt, Entail, Aliment In 1708, an Act of Parliament was passed enabling Dorothy Luckyn and James Lockhart to sell some lands the former had inherited. Upon their deaths the money from the sale was held in trust on behalf of their young heir, John Lockhart. Rather than petition the Court of Chancery to remove the tailzie from the trust, Lockhart's trustee, Robina Lockhart, removed the money to Scotland and conveyed it to her pupil upon his coming of age. When John Lockhart died a number of decades later his unentailed estate passed to his wife, Mary. John Lockhart's niece and her husband then brought action against Mary Lockhart and other trust-disponees, claiming the above-mentioned money as heirs of entail. They argued that the money in question still remained entailed under English law. The defenders, on the other hand, argued that the trust-money, having been removed to Scotland and conveyed to Lockhart, was therefore a sum of money belonging to him. Furthermore, they argued that even if there had originally been a case against the trustee's actions, it was no longer viable due to the negative prescription. To support this second argument, the defenders cited the Court's decision on Boyd Porterfield of Porterfield v. Joanna, Margaret, and Lilias Porterfields. The Court of Session determined that the negative prescription had cut out the claim of the substitute heirs, and the House of Lords upheld this decision.
Dunbar v. Dunbars, et al 1798 Succession, Entail, Tailzie, Infeftment, Debt, Teinds Sir Benjamin Dunbar, pursuer, presented a reclaiming petition asking the Court to alter its interlocutor of 2 February 1799, which had assoilzied him from the conclusions of his action against the defenders, the Dunbars, et al. Based on the single document cataloged for this case.
Edmonstone, Fraser, and Ferrier v. Trustees of General Simon Fraser 1791 Debt, Succession, Trustee, Entail, Disposition, Trust Edmonstone, Fraser, and Ferrier pursued the Trustees of General Simon Fraser for payment of a Crown-gifted debt, insisting that the trustees were bound to pay the specified heirs rather than apply the funds to the entailed estate. The trustees maintained that the Crown’s gift of the debt to Archibald Fraser could not be enforced against the entailed estate of Lovat. They subsequently petitioned the Court to alter its recent interlocutor in the cause.
Fraser v. Lord Woodhouselee 1802 Election, freeholder right, Succession, Entail, Liferent, Valuation Simon Fraser, a freeholder of Inverness-shire, filed a complaint with the Court of Session objecting to Alexander Fraser Tytler’s claimed eligibility to vote for a knight of Inverness-shire. Tytler’s claim rested on his wife’s status as a freeholder of that county. In the course of the proceedings, Simon Fraser died, and William Fraser, another of the freeholders of Inverness-shire, took up the complaint. The debate centered on the 7th clause of the 12th of Queen Anne and the meanings of the words "property" and "superiority." In the end the Court repelled the complaints of the pursuers and upheld Lord Woodhouselee's enrollment and vote.
Gibson v. Reid 1795 Debt, Succession, Aliment, Entail, Terce, Tailzie The respondent Gibson answered the petition of Christian Kerr Reid, contending that the petitioner’s condescendence underestimated the free rents of Hofelaw and failed to account for equitable relief for the widow. Based on the single document cataloged for this case.
Henderson v. Wilson and Melvilles 1795 Succession, Deed, Will, Entail, Aliment, Tailzie Robert Henderson pursued a claim against George Wilson regarding the succession to Walter Bowman’s estate, while Catharine and Christian Melvilles argued that a 1763 entail was ineffectual and had revoked an earlier 1757 deed, thereby opening the succession to heirs ab intestato. Henderson petitioned the Court to alter a recent interlocutor, and Wilson answered both Henderson’s petition and the Melvilles’ memorial, contesting their respective positions on the disputed entailments.
Henry v. Russell 1794 Succession, Entail, Disposition, Sasine, Tailzie, Teinds
J. J. Hope Vere v. Right Hon. Charles Hope and Others 1822 Succession, Entail, Tailzie, Prescription, Disposition, Sasine James Joseph Hope Vere pursued an action of declarator against the Right Honourable Charles Hope and the other Heirs of Entail of Craigiehall regarding the succession to the estate and the effect of the tailzie of 1708. The pursuer contended that the lands were held free of entail fetters, while the defenders maintained that the 1733 marriage contract had not altered the destination of the original entail and asserted that Hope Vere was barred from reduction by contravention, forfeiture, prescription, and the tailzie's resolutive clause. Between 1823 and 1830 the parties exchanged successive defences, informations, and revised cases disputing the construction of the entail and the validity of the subsequent titles.
John Earl of Rothes v. John Philp 1758 Debt, Succession, Entail, Infeftment, Tailzie, Creditor John Philp pursued John Earl of Rothes for 5000 merks and interest due under a bond dated 1716. The Earl defended on the ground that the estate was entailed by a 1684 deed and 1687 charter, rendering it immune from ancestral debts. The litigation turned on whether the 1685 Tailzie Act required judicial registration of pre-1685 entails to render them valid against creditors, with the Earl asserting that the entail was binding under common law and a 1662 Court of Session decision and that the Act did not apply retroactively.
John Home, Writer to the Signet, Petitioner 1792 Debt, Entail, Succession, Trust, Trustees, Trustee Sir John Stirling, Alexander Grahame, Sir Alexander Purves, Dame Mary Willis, and Dame Gloriana Stirling asked the Court to alter its recent interlocutor in the case in which John Home, Writer to the Signet, appeared as petitioner. Based on the single document cataloged for this case.
John Johnston v. William Morehead 1790 Liferent, Disposition, Tailzie, Charter, Entail, Succession John Johnston sought to overturn the enrollment of William Morehead junior as a freeholder in Stirling county, alleging that Morehead’s liferent qualification was nominal and fictitious. Morehead defended his title as valid and absolute, maintaining that the conveyance was not revocable and that the entail did not entitle Johnston to recall the liferent right. The parties exchanged replies and duplies, followed by a condescendence and answers debating whether the liferent was absolute, and Johnston subsequently noted a reclaiming petition regarding the non-existence of a deed of entail dated November 28, 1786.
Lady Clementina Fleming v. The Hon. Charles Elphinstone et al 1797 Succession, Debt, Tailzie, Entail, Liferent, Aliment Lady Clementina Fleming pursued the Honourable Charles Elphinstone and the other Heirs of Entail concerning the 1741 entail of the earldom of Wigton. The defenders contended that Lady Clementina was barred from challenging the entail's validity, while she argued that the entail could not oblige her to assume the surname of Fleming or bear the arms of Wigton, as the marriage contract had waived those requirements.
Lord Reay v. James Anderson and Others 1799 Rent, Lease, Succession, Tack, Debt, Entail The parties to this case disputed whether a tutor had the power to grant a lease, or "tack," extending beyond his time in office. Lieutenant General Alexander Mackay, the sole surviving tutor for Hugh, Lord Reay, granted such a lease to the defenders—James Anderson, Thomas Arbuthnot, and James Arbuthnot. The lease applied to many elements of the Reay estate, including all the lands of Rispond; numerous other lands and grazings; fishing rights on the coast and in the waters of Hope, Durness, and Laxford; and rights to seaweed on the shores of the estate. Hugh’s successor, Eric, Lord Reay, sought to have the lease set aside on the ground that a tutor may not grant a lease extending beyond his time in office. However, the defenders argued that the lease benefited the estate and that its lengthy term would facilitate significant investments to improve the property.
Mackay and Fullerton v. Dalrymples et al 1795 Succession, Possession, Reduction, Entail, Prescription, Sequestration Mrs Marianne Mackay, subsequently the Honourable Mrs Hamilton Fullarton, and her husband Colonel William Fullarton pursued Sir Hew Hamilton Dalrymple and other representatives of the Dalrymple family regarding succession to the estate of Bargeny, asserting rights as nearest substitutes under a 1688 marriage contract and entail which provided for female-line succession, while the defenders claimed title under a 1742 charter and seisin. The litigation involved petitions for sequestration of the estate, disputes over the custody of title-deeds and the removal of seals from estate repositories, and exchanges regarding the pursuers' standing to displace the defenders as heirs-apparent, the validity of a plea of minority, and allegations of contravention of irritant clauses. The pursuers sought to compel production of writings relied upon by the defenders and to conjoin reduction and declarator processes to ascertain their position under the entail, while the defenders maintained their lawful possession and disputed the pursuers' entitlement to the succession.
Mrs A. V. S. T. Anderson v. John Anderson 1827 Reduction, Tailzie, Entail, Succession, Aliment, Expenses Mrs A. V. S. T. Anderson, pursuer, lodged a reclaiming note against an interlocutor pronounced by Lord Moncreiff in her action against John Anderson, defender. Based on the single document cataloged for this case.
Mrs. Euphemia Innes v. Duke of Gordon 1831 Succession, Lease, Rent, Debt, Entail, Res judicata Mrs. Euphemia Innes, relict and executrix of John Innes, presented a reclaiming note against George, Duke of Gordon, asking the Court to alter the interlocutor sustaining the Duke's defences. Based on the single document cataloged for this case.
Ogilvie v. Mercer 1793 Succession, Deed, Reduction, Disposition, Entail, Tailzie Sir John Ogilvy of Invercarity, Hope Stewart of Ballechin, and Miss Margaret Mercer Elphinstone challenged the validity of a deed of entail executed by Robert Mercer on 22 February 1791, arguing that it was void as a death‑bed settlement. Katharine Mercer subsequently petitioned the Court to alter the interlocutor pronounced in the case.
Petition of the Countess of Sutherland 1792 Debt, Tailzie, Entail, Arrestment, Succession, Election contest Elizabeth Countess of Sutherland and George Granville Leveson Gower, now Sutherland, petitioned the Court to permit them to sist themselves as parties to a question concerning the recording of the entail of the Sutherland estate. Based on the single document cataloged for this case.
Preston v. Wellwood 1791 Trust, Entail, Debt, Aliment, Succession, Lease Sir Charles Preston and the other trustees appointed by the deceased Robert Wellwood of Garvock sought suspension and interdict against Robert Wellwood, now of Garvock, to prevent him from cutting timber on the entailed estate. Wellwood answered, claiming he was entitled to cut timber on the estate notwithstanding the deeds of entail and trust executed by his father. The trustees maintained that they possessed the exclusive right to prevent the cutting of growing timber in order to preserve the value of the trust estate.
Robert Henry v. William Watt and Others 1831 Succession, Disposition, Entail, Liferent, Teinds, Jus Crediti Robert Henry pursued a claim to the Woodend estate against William Watt and others, who defended by asserting that the entail’s conditions protected the heirs of Robert Watt rather than the Crown and that Henry could not enforce the restrictions against them. The defenders subsequently lodged a reclaiming note requesting that the Court alter an interlocutor pronounced by Lord Corehouse.
Robert Wellwood v. Robert Wellwood and Others 1791 Liferent, Tailzie, Entail, Infeftment, Succession, Tack Robert Wellwood of Garvock pursued Robert Wellwood and others, contending that he was not an heir of tailzie and therefore not bound by the entail’s fetters. Based on the single document cataloged for this case.
Robert Wellwood v. Trustees of the Estate of Robert Wellwood 1796 Debt, Entail, Aliment, Succession, Trust, Deed Robert Wellwood, Esq., as pursuer, petitioned the Court to alter the Lord Justice Clerk's interlocutor continuing an interdict against cutting timber on the estate of Garvock, with the Trustees of the Estate of Robert Wellwood as defenders. Based on the single document cataloged for this case.
Samuel Hawkins, and Others, Personal Creditors of the late John, Earl of Glencairn v. Simon Taylor, and Others, Trustees of William Cunningham Cunningham Graham 1800 Entail, Debt, Liferent, Aliment, Arrestment, Sequestration This case was about the order in which creditors were entitled to claim rents from the estate of Finlaystone. Finlaystone had belonged to the late John Cunningham, Earl of Glencairn, whose personal creditors attached the rents from the estate. Additionally, the estate secured a heritable debt—similar to a mortgage—that was purchased by William Cunningham Cunningham Graham. Graham’s trustees claimed a preference over the rents, for payment of both the interest and principal of the heritable debt. However, Earl John’s creditors argued that because the heritable debt was secured by the whole estate, it was unnecessary to allocate rents toward its payment; doing so would operate to the prejudice of the other creditors. Earl John’s creditors further argued that if a heritable creditor exerted a preference over the rents, he should also be required to assign them a portion of his security.
Sir Alexander Campbell, Baronet v. David Ballingall 1791 Feu duties, Possession, Freeholder, Liferent, Election contest, Entail Sir Alexander Campbell, Baronet and others pursued David Ballingall, alleging that altered circumstances had affected his possession or right since enrollment and that his qualification was nominal or fictitious. Ballingall answered the condescendence and petition, denying any alteration of circumstances and maintaining that his qualification was genuine and valid. The dispute turned on whether Ballingall's enrollment remained effective given the alleged changes and the nature of his qualification.
Sir Alexander Campbell, Baronet v. David Ballingall 1790 Freeholder, Election contest, Feu duties, Possession, Entail, Liferent Sir Alexander Campbell, Baronet, and other freeholders of Stirlingshire pursued David Ballingall to expunge him from the county roll of freeholders, alleging that he lacked possession of his liferent title because he had acquiesced since 1781 in vassals' possession and payment of feu-duties to Lady Elphinston and because Lady Elphinston's conveyance had been revoked after Lord Elphinston's death. Ballingall answered that the complaint was inept as no judgment had pronounced his expulsion, and later denied that any act of his had altered his right or possession, while the complainers demanded his titles and lodged a condescendence elaborating the grounds for disqualification. Campbell subsequently petitioned the Court to alter a recent interlocutor, maintaining his challenge to Ballingall's voting qualification.
Sir William Eliott v. George and Thomas Currie 1796 Lease, Tack, Rent, Trustees, Entail, Succession Sir William Eliott of Stobs, Baronet, pursued George and Thomas Currie to determine whether an heir of entail could grant a lease at a diminished rent in consideration of a grassum. Eliott maintained that such a lease was prohibited, while George Currie argued that the entail's silence on the letting of leases permitted him to enter a lease below the former rental. After the court pronounced an interlocutor, Eliott presented a reclaiming petition asking the Court to alter that decision.
Sommervell, Porterfield, and Paterson v. Lord Justice-Clerk's Interlocutor 1798 Tailzie, Entail, Aliment, Succession, Marriage, Next of Kin William Sommervell of Kennox, Mrs Lilias Porterfield, and Peter Paterson, Writer in Glasgow, petitioned the Court to alter a recent interlocutor pronounced by the Lord Justice-Clerk. Based on the single document cataloged for this case.
Stewart v. Hoome 1789 Succession, Debt, Tailzie, Disposition, Entail, Adjudication Charles Stewart of Annapolis in Maryland, Esquire, and David Stewart his brother and attorney, as pursuers, argued against Hoome that the defender's father lacked power to alter the entail succession by marriage settlement. Based on the single document cataloged for this case.
Stirlings v. Sir John Stirling of Glorat, Baronet 1800 Debt, Succession, Teinds, Entail, Aliment, Tailzie This case addressed the scope and efficacy of an entail executed by Sir Alexander Stirling (father of defender Sir John Stirling) in relation to property he inherited from Sir John Home of Renton. The inheritance included the lands and barony of Renton, which were held of the Crown, and certain lands held of subject-superiors: Swansfield, Warlawbank, and husband-lands in Renton, all held of Mr. Home of Wedderburn; and Fleshywells, held of the Home family of Coldingham. (More detailed place names are listed in the Appendix to the Petition of Sir John Stirling of Glorat, Baronet, dated January 13, 1801.) Sir Alexander made up feudal titles to the barony of Renton, but not to the lands held of subject-superiors. He also executed a deed of entail, the scope of which was disputed, along with a companion trust-deed. Sir John Stirling subsequently succeeded his father and made up titles to the lands held by subject-superiors, claiming as “nearest and lawful heir to Sir John Home.” After questions were raised about Sir Alexander’s entail, the heirs brought this action to resolve the legal status of the lands in question.
The Duke of Argyle v. The Earl of Dunmore 1795 Succession, Charter, Entail, Tailzie, Infeftment, Adjudication The Duke of Argyll, pursuer, argued against the Earl of Dunmore, defender, that he was entitled to reserve a year's rent from heirs of entail who were not heirs of line of the last investiture. Based on the single document cataloged for this case.
The Marchioness of Titchfield and her Husband, for his interest v. Alexander Penrose Cuming 1797 Succession, Debt, Liferent, Entail, Heritor, Disposition The Marchioness of Titchfield and her husband, for his interest, pursued Alexander Penrose Cuming, who defended on the plea of res judicata. The pursuers petitioned the Court to alter the interlocutor sustaining this defence, and Cuming answered. They then presented a second petition asking the Court to overturn the interlocutor regarding the res judicata plea, to which Cuming also answered.
Thomson &c v. St. Clair Erskine 1794 Debt, Succession, Entail, Disposition, Aliment, Heritor Thomson and others, as petitioners, sought alteration of an interlocutor that had ordered them to pay Lady Erskine's annuity from Whitsunday 1791. Sir James St Clair Erskine, as defender, argued that the bond of annuity granted by General St Clair constituted his personal debt rather than that of Mr Thomson, general disponee of the late Colonel St Clair. The question was whether liability for the annuity fell upon Colonel St Clair's estate or upon Sir James as successor to the grantor's obligation.
William Redhead, Tenant in Chatto v. Robert Kerr of Chatto 1792 Entail, Rent, Aliment, Lease, Succession, Possession William Redhead, tenant in Chatto, petitioned the Court to alter Lord Dreghorn’s interlocutor regarding the extension of his lease. Robert Kerr of Chatto answered the petition, resisting the alteration on the ground that the lease extension violated the provisions of the entail.
York-Buildings Company v. Taylor 1791 Debt, Entail, Succession, Trust, Sale, Trustee Alexander Mackenzie, Writer to the Signet, as defender, submitted minutes in answer to the minutes filed by the pursuer, the Governor and Company of Undertakers for raising Thames Water in York-buildings. Based on the single document cataloged for this case.

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