M'Adam v. M'Adam and His Curator Ad Litem

The Lord Ordinary ( Rutherfurd Clark ) found for the pursuers in both actions, and added this note to his interlocutor in the action at the instance of Mrs M'Adam—

“ Note .… The question turns on the effect of the 9th section of the Conveyancing Act of 1874. The defender maintained that that section does not apply to entailed estates. But in the opinion of the Lord Ordinary the argument is without foundation. The section is expressed in the most absolute terms, and does not admit of any exception.

The defender reclaimed, and argued—The 9th section of the Act of 1874 did not apply to an heir of entail. There could be no such thing as an unfeudalised conveyance of an entailed estate. Then in order to grant these provisions the granter must be infeft—at all events in the case of the widow's bonds of annuity, as she was to have a security by infeftment.

Argued for the respondent—The 9th section did apply. The effect of the clause was to put the heir into the position of an heir under a deed of propulsion uninfeft. There was nothing in the Aberdeen Act requiring that the granter of the bonds should be infeft. Substituting for the Act of 1695 the Act of 1874, and for the provisions of the deed of entail the provisions of the Aberdeen Act, the present cases were precisely similar to those of Glencairn and Kennedy .

Authorities— Glencairn v. Graham , May 23, 1800, M. “Heir-Apparent,” App. I.; Kennedy v. Kennedy , February 11, 1829, 7 S. 397 .