More (Somervell's Trustee) v. Somervell [1904] ScotLR 41_716 (05 July 1904)

More (Somervell's Trustee) v. Somervell [1904] ScotLR 41_716 (05 July 1904)

The rights of heritable creditors under bonds and dispositions in security granted by an heir of entail in possession are limited to the extent of the granter's own interest as defined by the terms of the bond and the existing entail. The substitution of a new entail for an old one does not enlarge the creditors' rights, as there was never a moment when the estate was freed from the fetters of entail. The creditors' real right remains as it was at the date of infeftment, and no subsequent transaction to which they were not parties can enlarge it.

Citation
[1904] ScotLR 41_716
Parties
Pursuer: Francis More (Somervell's Trustee); Defenders: James Graham, Henry Somervell and others (children of James Somervell), and their curator ad litem; Defender: Scottish Imperial Insurance Company, Glasgow
Jurisdiction
Scotland
Judgment Date
05 July 1904
Procedural Posture
Action of Declarator / Inner House, Second Division, Reclaiming Note Against Lord Ordinary's Interlocutor
Outcome
Reclaiming note refused; Lord Ordinary's interlocutor adhered to; defenders assoilzied from conclusions of the summons.
Legal Topics
Entail, Heritable Security, Bonds and Dispositions in Security, Substitution of Entail, Creditors' Rights, Accretion
Property Law Trusts and Estates Conveyancing Entail Heritable Security Bonds and Dispositions in Security Substitution of Entail Creditors' Rights +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

Francis More (Somervell's Trustee)

Pursuer

James Graham, Henry Somervell and others (children of James Somervell), and their curator ad litem

Defenders

Scottish Imperial Insurance Company, Glasgow

Defender

Procedural Posture

Action of Declarator / Inner House, Second Division, Reclaiming Note Against Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the substitution of a new entail for an old entail enlarges the rights of heritable creditors under bonds granted during the earlier entail.
  2. 2 Whether the bonds and dispositions in security granted by an heir of entail in possession affect the fee of the estate after the old entail is replaced by a new entail.

Ratio Decidendi

The rights of heritable creditors under bonds and dispositions in security granted by an heir of entail in possession are limited to the extent of the granter's own interest as defined by the terms of the bond and the existing entail. The substitution of a new entail for an old one does not enlarge the creditors' rights, as there was never a moment when the estate was freed from the fetters of entail. The creditors' real right remains as it was at the date of infeftment, and no subsequent transaction to which they were not parties can enlarge it.

Court Disposition

Reclaiming note refused; Lord Ordinary's interlocutor adhered to; defenders assoilzied from conclusions of the summons.

Orders

  • Defenders assoilzied from the conclusions of the summons.
  • Lord Ordinary's interlocutor adhered to.