Lord Wharncliffe v Nairne
| Jurisdiction | Scotland |
| Judgment Date | 13 November 1849 |
| Year | 1849 |
| Date | 1849 |
| Docket Number | No. 1. |
| Court | Court of Session (Inner House - First Division) |
Whole Court.
Lord Cuninghame.
W.
Entail.—
THE entail of the estate of Drumkilbo contained the following prohibitory, irritant, and resolutive clauses:—‘And sicklike providing, likeas it is hereby specially provided and declared, that it shall not be lawful to 1 the said Alexander Nairn, or the other heirs of tailzie above mentioned, who shall succeed to the said lands and others above mentioned, by virtue of this present right, to sell, anallie, dispone, dilapidate, nor put away, the lands, teinds, and others above exprest, or any part thereof, either heritably and irredeemably, or under reversion, nor to grant infeftments of annualrent, or yearly duties furth thereof, nor to contract debts or sums of monie, wherewith the samen may be burdened, exceeding a yearly free rent of the saids lands and estate, or to do any other fact and deed whereby the saids lands and others foresaid may be apprised or adjudged from them, or anyways burdened, in prejudice of the subsequent heirs of tailzie, or their foresaids, or shall suffer any apprising or adjudication to be led of the said lands, to run for the space of five years without redemption thereof, nor shall it be leisom nor lawful to them to break, alter or infringe, this present right or taillie, in the course of succession above mentioned. And if he, or any of the forenamed persons, heirs of taillie, shall contraveen and do in the contrary, or (sic) any point of the premises, then not only all such debts, facts and deeds, are, per verba de præsenti, declared to be ipso facto void and null without declarators, in so far as the samen might infer any actions, personal or real, against the next heir of taillie, or the lands and others foresaid, but also the persons, substitutes, or heirs of taillie foresaid contraveening, or who shall contraveen, any of the conditions and provisions above mentioned, and the heirs-male of their bodys, shall forfault, amit and tyne, their right of succession to the lands and others above mentioned, and all rights or infeftments in their persons shall immediately thereafter expire and become extinct, void and null.’
David Nairne, the proprietor of the estate, sold it to Lord Wharncliffe, who presented a suspension of a threatened charge to try the question as to the validity of the entail. Thereafter he brought a declarator against all the subsequent heirs. The two processes were conjoined.
The objections pleaded were to the...
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