# Entail Amendment (Scotland) Act 1868, Section 9: When estate may be sold, sale may be by private bargain.


It shall be competent for the Court of Session, where any entailed estate is subject to or may be charged with debt affecting, or that may be made to affect, the fee of the estate, on a petition to be presented by the heir of entail in possession of such estate, to approve of an agreement to sell by private bargain the whole or any portion of such estate for payment of the whole or any part of such debt; and the Court may authorize such sale under such agreement where they are satisfied, after making such inquiry as they consider necessary, that the sale is advantageous and beneficial for the heir of entail in possession of such estate, and not detrimental to the interests of the succeeding heirs of entail; and the said Court may authorize such sale even though the price to be paid under such agreement is considerably above the total amount of the debt affecting such entailed estate as aforesaid, provided they are satisfied of the advantage and benefit likely to accrue from such sale as aforesaid; and in the event of such sale being effected as aforesaid, and of any surplus remaining after paying off the said debts and the expenses attending the sale, such surplus, if less than two hundred pounds, shall belong to the heir of entail in possession, and if more than two hundred pounds, shall be applied under the authority of the Court in buying other lands in the neighbourhood of the remainder of the entailed estate, if the whole estate is not sold, or, if the whole estate is sold, in buying lands in Scotland, to be approved of by the Court; and until a suitable purchase of land is found, such surplus may be invested by trustees, to be appointed by the Court, on the application of the petitioner in the course of the proceedings, or in any application to be presented by him for the purpose, on heritable security in Scotland, to the satisfaction of the said trustees, or may be applied otherwise under the provisions of the Acts of Parliament relating to entails in Scotland; and the form of petitions to be presented under this section and the procedure thereon shall, as nearly as may be, be similar to the form and procedure prescribed with reference to petitions presented to the Court under the said Acts; and until such surplus is invested in the purchase of land for the purpose of being entailed, the free annual proceeds thereof shall be paid to the person who would be the heir in possession if such land were purchased and entailed; and it is hereby provided, that it shall be competent to any heir of entail in possession of an entailed estate in Scotland who has or whose predecessors have sold the whole or part of the entailed estate, and where the price or the balance of the price is available for the purchase of land, to apply to the Court in like manner for the appointment of trustees by whom the said price or balance thereof may be invested on heritable security in Scotland, or may be applied otherwise under the provisions of the Acts of Parliament relating to entails in the same manner till the same event and to the same effect in all respects as is herein-before provided with reference to the price or the balance of the price of lands sold under the provisions of this section.

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Source: https://www.legislation.gov.uk/ukpga/Vict/31-32/84/section/9 (the official version)
Page: https://openlegislation.uk/entail-amendment-scotland-act-1868/section-9
Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.