Entail Amendment (Scotland) Act 1868

4 Procedure in granting feus, building leases, &c. U.K.

For ascertaining whether the land so proposed to be feued, leased, or disponed may be feued, leased, or disponed in terms of the provisions of the preceding section, and the value of the same, an application shall be made by the heir in possession of the entailed estate to the sheriff of the county within which the entailed estate, or the portion thereof proposed to be feued, leased, or disponed, is situated, who thereupon shall direct notice to be given to the next heir of entail entitled to succeed to the entailed estate in such manner as shall seem proper (and in the event of such next heir of entail being under age or subject to any legal incapacity, the sheriff shall appoint a tutor ad litem or curator ad litem to such heir), and shall appoint one or more skilful persons to inquire and report as to the value of the lands proposed to be feued, leased, or disponed, and whether from their position or otherwise they may or ought to be feued, leased, or disponed in terms of the preceding section either in whole or in lots; and upon such person or persons reporting that the feu duty, rent, or ground annual offered is in their opinion, having regard to all the circumstances, fair and adequate, and that such land may, from its position, be feued, leased, or disponed in terms of the preceding section, either in whole or in lots, the sheriff, on consideration of the whole circumstances, may and is hereby empowered to authorize such heir in possession or his successor in the entailed estate at any time within ten years from the date of such deliverance to feu, lease, or dispone the said land in one or more lots at such rate of feu duty, rent, or ground annual as he can obtain for the same, not being less than the rate fixed by the said skilled persons, subject to such conditions as the sheriff may think essential to secure such feu duty, rent, or ground annual, and any other conditions he may see fit, and also subject to a nominal taxed sum of one penny sterling in lieu of all casualties on the entry of heirs and singular successors, and to grant the necessary feu charter, lease, or disposition, and which being executed and recorded in the register of sasines shall be effectual to all intents and purposes; and the lands so feued, leased, or disponed shall, from the date of recording the feu charter, lease, or disposition in the register of sasines, and so long as such feu charter, lease, or disposition shall remain in force, be held as out of the entail, and be liberated from all the prohibitory, irritant, and resolutive clauses or clause of registration thereof: Provided always, that the superiority of the lands so feued, leased, or disponed, and the feu duties, rents, and ground annuals thereof, shall be and shall remain subject to the said entail in the same manner as the lands themselves were subject thereto previous to the granting of such feu charter, lease, or disposition; and it is hereby provided, that the decree of the sheriff pronounced on such application and proceeding shall not be subject to review by suspension, advocation, or reduction, or in any other form, except by a short note of appeal to be presented to the Court of Session in one or other of the divisions thereof, which appeal shall be disposed of by such division as a summary cause: Provided always, that unless such note of appeal shall be lodged with the clerk of the division of the Court of Session, and notice thereof given in writing to the opposite party, or his known agent, or lodged with the sheriff clerk, within six months of the date of the decree of the sheriff, such decree shall be final and conclusive; and in the event of an appeal being duly taken and lodged, the judgment of the Court of Session thereon shall be final and conclusive.

Modifications etc. (not altering text)

C1 S. 4 amended by Land Registration (Scotland) Act 1979 (c. 33, SIF 31:3), s. 29(2)(3)