WILLIAM ADAM v ARCHIBALD FARQUHARSON & Ors (Court of Session)

The pursuer pleaded, that the deed of entail contained no irritant clause applicable to the prohibitions against selling, alienating and disposing, and no resolutive clause applicable to the restrictions and limitations contained in the prohibitory clause.

In defence, it was maintained, that the titles called for constituted a valid and effectual tailzied investiture of the estate, in terms of the act 1685, c. 22.

It is proper, however, to advert to the peculiar construction of these clauses which the pursuer proposes:

It is obvious, that in the preceding clause, the act prohibited is not only described as a limitation of the heir's right, but as a condition and provision of the tailzie. In the same manner, it appears that the resolutive clause, as framed, affords evidence within itself, that the entailer considered the limitations imposed on the heirs, to be conditions and provisions of the tailzie; and he repeatedly uses the terms indiscriminately , as referring to all the prohibitions conditioned and provided in the previous clauses.

In all the cases founded on by the pursuer, the irritant clauses were found ineffectual, because the references to the deeds voided were held, from the structure of the sentence, to be limited , and to apply only to the latter portion of the prohibited acts, and to these alone, thus leaving sales and ordinary alienations valid and effectual. Such was the case in Earlshall, ( Fac. Coll. 21st Nov. 1815); in Barclay v. Adam, (1 Shaw's App. Cases , p. 24,) and in the late case of Lang, ( Robinson's App. Cases , 16th. Aug. 1839.)