Creditors for anulling posterior Deeds yet it is not exclusive of other Remeids for anulling Deeds done in defraud of Creditors though contracting after these Deeds where Fraud in the design doth evidently appear whereof we have now instanced several Decisions So a Bond granted by a Father to a Son forisfamiliat payable after the Fathers Death was Reduced at the Instance of the Fathers posterior Creditors continuing Traffick with him February 1669. Pott contra Pollock And a Bond payable only by the granters Heir if he had no Heir of his own Body was Reduced as Fraudulent January 24. 1677. Blair of Ardblair contra Wilson And a Disposition of Lands purchased by a Merchant to his Son was found Affectable for the Debts of Merchants Strangers who began to Trade with the Father before the Disposition and continued after even as to the posterior Debts seing the Father continued still to act as Proprietar though by his Compt Book it appeared he knew himself to be Insolvent And though the Sons Infeftment was publick and Registrat which stranger Merchants were not oblieged to know July 2. 1673. Street and Jackson contra Masson Yea an Infeftment by a Father to his eldest Son an Infant was reduced at the Instance of posterior Creditors his neighbours where the Seasing was Registrat seing the Register was carried out of the Countrey and the Father continued to act not as Liferenter but as Proprietar December 4. 1673. Reid of Bullochmyle contra Reid of Daldillin And generally Latent Rights amongst confident persons are reduceable by posterior Creditors But the Liferent of the whole Conquest of a Merchant provided in a Contract of Marriage to his Wife being an ordinary Clause was not found fraudulent February 10. 1674. Marion Gray contra the Son and Creditors of her Husband Secondly though this Statute bears all Alienations without Cause onerous in prejudice of prior Creditors to be null ab initio and without declarator by exception or reply Yet Custome hath found this inconsistent with the nature of Infeftments which cannot be reduced till they be first produced and all the Authors called which cannot be by way of exception but by action But a Disposition of Moveables was found anullable by reply November 18. 1669. Henderson contra Henderson June 18. 1671. Bower contra Lady Couper And likeways a profitable Tack February 6. 1662. Doctor Hay contra Marjory Jamison Neither are the receivers of such Alienations comptable for the profits ab initio till they be put in mala fide by the pursuites of anterior Creditors whose Rights they are not presumed to know till they be produced and found preferable Thirdly Though the Title of this Statute and much of the Body of it be against the Alienations of Bankrupts in prejudice of their Creditors yet the Statutory part declares against all Alienations to any conjunct or confident person without a just price being in prejudice of anterior Creditors to be anulled which hath always been extended not only to Dispositions of Bankrupts made to confident persons but to any person without a competent price or equivalent cause onerous and therefore such gratuitous Deeds are reduceable by anterior Creditors though the granter was not then Bankrupt as a broken Merchant flying But if he were before or did by these fraudulent Deeds become insolvent Hope Usury Pringle contra Ker. February 16. 1628. Kilgour contra Thomson January 17. 1632. Skeen contra Belstoun Yea if thereby his Estate cannot afford ready Satisfaction or Security as being incumbred with many Appryzings or Adjudications though the Reversions may be equivalent to all his Debt Yet anterior Creditors may reduce gratuitous deeds done by such persons being more fit that anterior Creditors should be preferred and the obtainers of these gratuitous Rights should be put to recur upon the Reversions by their warrandice February 10. 1665. Lady Craig contra Lord Lour But there is nothing in this Statute or by Custome to anull any gratuitous deed in favours of Wives Children or Strangers if at the time of the granting and delivery thereof the granter had an Estate sufficient for these and all his Debts unaffected by Appryzing Adjudication or Arrestment Neither will Inhibition suffice nor Apprizing or Arrestment for small Sums to be a ground for this Reduction Competent provisions to Wives or Husbands are not accompted gratuitous but onerous ad sustinenda onera Matrimonij and for mutual Provisions But if exorbitant they will be lyable in quantum locupletiores facti December 23. 1661. Dam Rachel Burnet contra Lepers Neither are Provisions or Gifts to Children anullable by anterior Creditors if the granter had then a visible Estate sufficient for these and all his Debts as was found in a provision by a Father to his Son by his Contract of Marriage though the Son received the Tocher June 22. 1680. Grant of Cairnhauch Contra Grant of Elshes November 10. 1680. Mckel contra Jamison and Wilson Yea the Portions of Children were not excluded by prior Creditors their Father having then a sufficient visible Estate though ex eventu it proved insufficient by running on of Annuals and Accumulations of Appryzings December 11. 1679. Creditors of Muswall contra Children of Nuswald June 30. 1675. Clerk contra Stuart and Williamson And so a Disposition by a Grand-Father to his Oye was not annulled by Anterior Creditors March 6. 1632. Laird of Grantoun contra Ker. Fourthly Though this Statute requires a just price it did not anull a Disposition though a prior Creditor offered a greater price if the price received was the ordinary Rate of the Countrey and though there was a personal Reversion to the Disponers eldest Son only January 16. 1677. Earl of Glencairn contra John Brishane The like where the pursuer had obtained a prior minute of Sale for a greater price yet it did not reduce a posterior Infeftment purchased bonafide though for a lesser price being competent July 18. 1677. Murray of Kilor contra Drummond of Machanie Fifthly Though the Statute mentions only the anulling of Dispositions c. yet it is ordinarly extended to Bonds or obliegements whereupon Appryzing Adjudication or Arrestment follow Sixthly Though Dispositions or other Rights be fore equivalent Causes Onerous yet by the posterior part of the Statute they are accompted fraudulent and reducible if the Bankrupt or the interposed person in Trust do by voluntar gratification prefer one Creditor to another who hath done more timeous and lawful diligence where by Bankrupt is not only to be understood a notour Bankrupt but any person insolvent or by the preference becoming insolvent or who hath not a sufficient visible inaffected Estate for his other Creditors But where a Debitor of an intear Estate pays his lawful Creditor or satisfies him by Dispositions or Assignations neither the Tenor nor Extention of the Statute reacheth these Cases albeit there be inchoat and incompleat Diligence at the Instance of other Creditors Seventhly Where that Clause of the Statute bears the annulling of Deeds done
Husband was found Feer and therefore the Creditor apprising excluded the Wife and her heirs January 29. 1639. graham contra Park and Jarden And a Bond providing a Sum to a Man and his Wife in Conjunctfee and the Bairns procreat betwixt them which failing to two Bairns of a former Marriage nominatim containing a Precept for infefting the Spouse and the two Bairns named whereupon all the four were infeft yet the Father was found Feer and all the Bairns of the Family Male and Female equally were found heirs of Provision and the two Bairns named were found Heirs substitute failing the Bairns of the Marriage January 14. 1663. Thomas Beg contra Sir Thomas Nicolson And a Bond bearing a Sum borrowed from and payable to Man and Wife and longest liver of them two in Conjunctfee and to the heirs betwixt them and their Assignys Which failing to the Heirs and Assignys of the last liver found to constitute the Husband Feer and the Wife Liferenter albeit she was last liver and that her heirs of Line were found heirs of Provision to the Husband January 2. 1668. John Justice contra Mary Barclay his Mother A Tocher provided to the Husband and Wife the longest liver in Conjunctfee and Liferent and to their Bairns in Fee was found to make the Husband Feer and that the Father might alter the Substitution December 12. 1665. Mr. John Pearson contra Martine And generally in all Infeftments in Conjunctsee betwixt Man and Wife the Husband is always interpret to be Feer and the Wife Liferenter albeit the last Termination be the Wifes heirs who are heirs of Provision to the Husband unless the Right flow from the Wife originally as if she should resign her Lands in favour of her Husband and her self in Conjunctfee and the heirs of the Marriage which failing her heirs or if the Right did flow from the Wifes Father by a gratuitous Deed. But by the Contract of Marriage a Father oblieged himself to infeft the Husband Contracter and his Daughter in Conjunctfee and Liferent and the heirs betwixt them which failing the Daughters heirs and Assignys whatsoever And by the same Contract the Husband was obliged to provide all Lands that she should acquire or succed to to himself and Wife the longest liver of them two in Conjunctfee and to the heirs betwixt them which failing the one half to the Husband's heirs and the other to the Wifes heirs and their Assignys By both these Clauses the Husband was found to be Feer and the Wife Liferenter albeit the Tenement disponed by the Father was not nomine dotis yet there was no other Tocher July 2. 1671. Adam Gairns contra Isabel Sandilands Yet a Clause in a Minute of a Contract of Marriage obliging the Husband to infeft his Wife in Conjunctfee and Liferent in such a Barony named and obliging him and his Heirs and Assignys that all and whatsoever Lands or Sums of Money should be purchased by him during the Marriage that Security should be made in Liferent thereof as of theforesaid Barony to his future Spouse in case of no Issue of Children the one half of the said Conquest to be disponed upon as the Wife shall think fit the Conquest was found to be equally to the Husband and Wife and that she was Liferenter of the whole and Feer of the half in respect the Minute did not bear whose heirs should succeed and that the Conquest was all to be expected by the Wifes Means therefore she being Conjunctfeer that the one half of the Conquest should be disponed as she pleased she was found Feer of that half as not being a Faculty but a Power of Disposal importing Property June 27. 1676. Earl of Dumferling contra Earl of Callendar 52. There do many questions arise as to the Succession of Heirs of Provision by Clauses of Conquest in Contracts of Marriage The main question is what is accounted Conquest Whether that which is acquired and thereafter disponed be accounted Conquest either as to the Wife or to the Heirs or Bairns of the Marriage As to which it hath been shown before that such Provisions infer not only a Succession to the Heirs or Bairns of the Marriage as Heirs of Provision but thereby the Wife or Heir and Bairn of the Marriage have an interest as Creditors that the Husband or Father cannot ad arbitrium do Deeds prejudicial to that which is once acquired but the Husband is not thereby bound up from disponing to Strangers for causes onerous or to other Wives or Children for competent Provisions But he may not otherways intervert the design of those Provisions by taking the Rights to Wives or Children of another Marriage unlesse he have not means aliunde to provide them And therefore the Husband being oblieged to take all Sums acquired during the Marriage to to himself and his Wife inConjunct-fee having taken a Sum acquired during the Marriage in the name of his second Son his Relict was found to have Right to the Annualrent thereof July 16. 1625. Knox contra Brown The like where the Bonds were taken originally in the name of the Bairns leaving out the Wife March 14. Graham contra Representatives of her Husband But Clauses of Conquest of all Lands acquired during the Marriage do not extend to Lands acquired and disponed during the Marriage Yea Conquest of Lands was extended where there was Disposition without Infeftment with a burthen of a part of the Price upon the Disponer January 24 1629. Lady Rentoun contra Laird of Rentoun Spotswood Husband Countess of Dumfermling contra Earl of Dumfermling And where the Clause of Conquest bare Lands or Annualrents the same were extended to Bonds bearing Annualrent though without clause of Infeftment Feb. 20 1629. Douglas contra White And these Clauses are interpret strictly according to the tenor thereof for sometimes they only bear Lands Conquest sometimes Lands or Annualrents sometimes Lands Annualrents or Sums of Mony and sometimes also Goods or Geer in which case the Executors will be obliged to imploy moveable Goods and Sums for the Wife in Liferent and for the Bairns and Heirs of the Marriage in Fee These Clauses of Conquest do never extend to any thing whereunto the Husband succ eds as Heir or Executor unless Succession be exprest A clause of Conquest oblieging the Husband to take all Lands Annualrents and Sums conquest during the Marriage to himself and the Heirs and Bairns of the Marriage one or moe found to constitute all the Bairns of the Marriage Male and Female Heirs Portioners and that it was not alternative that the Husband might either take the Conquest to himself and the Heirs of the Marriage or to himself and Bairns of the Marriage at his option And therefore having taken a considerable Sum in favour of himself and the Heir of the Marriage who was his only Son yet after his Death his four Daughters of that Marriage obtained Decreet against their Brother to denude himself of their Shares
the Mother Nov. 117. de haered cap. 10. 12. The Custome of the Neighbouring Nations do follow more closely the Natural Law as the Custome of France and the Netherlands as is recorded by Gudel de jure Nov. cap. 13. And Mathias Stephanus 〈◊〉 the like of the Customes of Germany oecon juris civilis lib. 2. cap. 67. § 4. The Custome of this Nation also keepeth close to what is expressed before of the Natural Law as to the Interests and Obligations of Parents and Children and thereby Aliments are frequently decerned to Children to be payed by their Fathers if they expell them from their Families and that not only by the Act of Parliament providing Aliment to Heirs of Land to be payed by the Liferenters but a Father though his Son had no Lands was found conveenable super Jure naturae alendi 〈◊〉 July 21. 1636. Laird of Ramorney contra Law So also by our Custome a Father is Tutor of Law to his Sons being Pupils and therefore a Father was found lyable to the Son for Annualrent of his Mothers third of Moveables remaining in the Fathers Hands February 4. 1665. Beg contra Beg. But a Father was not found oblieged for Annualrent of a Legacy belonging to his Son uplifted by him seing he Alimented the Son December 15. 1668. Margaret Winram contra Mr. James Ellies A Father is also Curatour to his Children specially when in his Family unless other Curatours be chosen by his consent and so a Father discharging the Rent of his Sons Lands set by the Father though he was only Life-renter and the Son the Pupil-Fiar was found valid for years after the Fathers Decease in respect he was lawful Administrator young Rosyth contra his Tennants But a Father being poor was not allowed to lift his Sons Money without finding Caution to make it forth-coming February 12. 1636. Givan contra Richardson Neither might a Father being lapsis bonis assign a Tack acquired by him to his Son though he might uplift the Duties as Administrator January 29. 1629. Lands contra Dowglas So deeds done by such Minors without their Fathers consent as lawful Administrator were found null George Stuart contra Home of Rentoun After Pupilarity a Father is no more Tutor to his Children and so might not discharge for his Daughter being past Pupilarity but only consent with her as Curatour June 26. 1610. John Forrest contra Forrest A Father is lawful Administratour both as Tutour and Curatour honorarie of himself without any Cognition or Solemnity and is not lyable for omission neither is he exclusive of other Curatours But deeds done without a fathers consent by a Son were found null albeit the Son resided not in his Family but followed the Law having no Calling or Patrimony to maintain himself but living on his Fathers Charges neither was his Fathers Subscribing with him found a sufficient Authorizing of him seing he Subscribed with his Father as Cautioner for him December 7 1666. Sir George Mckenzie contra Mr. John Fairholme 13. As to the Fathers power to keep his Children within his Family and to apply their work for his use though controversies in that point have seldom been moved but the matter transacted by consent It is not to be doubted but that Children may be compelled to remain with their Parents and to imploy their Service for their use even after their Majority unless they be foris-familiat by Marriage or by Education in a distinct Calling from their Parents unless their Parents deal unnaturally with them either by Attrocity or unwillingness to provide them with a competent Marriage in due time and with means suitable to their Condition for that obliegement to provide for them would be a ground of exception against them if he would unjustly detain them in these cases or if the Father countenance or allow the Children to live by themselves and to mannage their own Affairs apart from whence his tacit consent to their Emancipation may be inferred in which cases also Zas 19. in lib. utrum turp c. De verb. oblig And Math. Steph. oecon juris civilis lib. 2. cap. 1. doth declare that the Consuetude of Germany is the same with our Customes before expressed The English account Children to be Emancipat so soon as they passe their Minority Cowell Institut jure Anglicani Tit. 12. § 4. TITLE VI. Obligations of Tutors and Curators Pupils Minor and persons Interdicted 1. The rise of Tutory in the Law of Nature 2. Order of Tutory by the Law of Nature 3. The Naturall Obligation of Tutors 4. Pupils Obligations to their Tutors 5. Kinds of Tutors by the Common Law 6. Tutors Testamentar 7. Tutors Testamentar exclude all others 8. Tutors of Law who 9. How Tutors of Law are entered 10. The time within which they must enter 11. Tutors Dative 12. Pro-tutors 13. Factors for Tutors 14. Con-tutors 15. Tutors custody of the Pupils Person 16. Tutors Authorizing their Pupils 17. Tutors or their Factors Rights relating to the Pupils accress to them 18. Tutors can only do necessary not free arbitrary deeds but may not sell Lands sine authoritate Judicis 19. Tutors are lyable for Annualrent for their Pupils means 20. Tutors are conveenable with their Pupils and lyable in quantum intus habent 21. Tutors Accompts 22. Tutors are lyable for exact diligence both for intromission and omission 23. Tutors are lyable in solidum 24. Tutory how finished 25. Tutors of Idiots and furious Persons 26. Gesta Tutorum accrescunt Pupillis 27. Removing of suspect Tutors 28. Duty of Pupils to their Tutors 29. Rise of Curators 30. Curators ad lites Negotia 31. Minors may at their option choose or not choose their Curators 32. Minors deeds having Curators without their consent are ipso jure null nisi in quantum â—â—erantur 33. Curators consent not requisite to latter Wills 34. Restitution of Minors upon enorme Lesione 35. Minor non tenetur placitare super haereditatem paternam 36. Differences betwixt Tutors and Curators 37. Duty of Curators 38. Curators or Interdictors for Prodigals or lavish Persons 39. Interdictors constitute causa cognita 40. Interdiction by Parents consent 41. Publication and Registration of Interdictions 42. Interdictions only extend to Heretable Rights not Moveables not to Personal Executions 43. Interdictions are only Competent by way of Reduction 44. Interdictions cannot be taken off but by Authority of a Judge TUTORS and Curators succeded in the place of Parents and their Obligations have a near resemblance and therefore shall be here fitly subjoyned though in the constitution and duties of Tutors and Curators the Positive Law predomineth yet that without any Positive Law or Contract there is a duty of Tuition and Protection of Orphans and specially upon these who by relation of Blood are their nearest Kinsmen and in place of their Parents it will appear by what ensueth and what is superadded either by the consent of parties in Curators or by the Law in Tutors with the condition and interest of
alter the succession without a necessary or just consideration and so do exclude deeds fraudulent or meerly gratuitous which might evacuat the effect as to the heirs of the Marriage so that if there were heirs of the Marriage and also heirs of another Marriage the Father could not alter the Succession in favours of the heirs of another Marriage because of the interest of the Wife and the Tocher she-brings But it doth not hinder the Father to give competent portions to the Bairns of another Marriage June 19 1677. Murrays contra Murrays Neither did such a Clause of Conquest during the Marriage exclude a competent Liferent constitute to Wife of a subsequent Marriage albeit there were Bairns of the first Marriage June 16. 1676. Katherine Mitehel contra Children of Thomas Littlujohn Yet where there survived no heirs of the Marriage a provision in a Contract of Marriage that such a sum the future Spouse then had and all they should acquire during the Marriage should be taken to themselves in Conjunct-Fee and to the heirs of the Marriage whilks failzing the one half to the Mans heirs and the other half to the Womans heirs found to constitute the Man Fiar of the whole and that he might provide both the first Stock and all the Conquestro his Children of a posterior Marriage which was found no fraudulent 〈◊〉 meerly gratuitous deed December 1. and 21. 1680. Alexander Anderson contra Androw Bruce 42. Infeftments to more persons subordinat are such as are taken to Parents and after their decease to such Children and other persons named whereby the Parent is understood to be Fiar and not Liferenter and the Children or others to be Heirs substitute albeit both the Father and the Bairns named were Infeft July 23. 1675. Laird of Lambingtoun contra 〈◊〉 of Annistain But where the Band did bear a sum lent by a Father for himself and as Administrator for his Son and that the Money was the Sons and payable to the Father and after his decease to the Son was found to constitute the Son 〈◊〉 and the Father only life-renter February 14. 1667. Campbel contra Constantine 43. The third division of Infeftments is in respect of the succession and they are either simple or Tailzied Simple Infeftments are these which are taken to Heirs whatsomever for by that expression we express the lineal Heirs who according to Law would succeed in any Heretable Right But Tailzied Infeftments are where the Lands are provided to any other then the Heirs of Line as when it is provided to Heirs Male or Heirs Male of the Fiars own Body or to the Heirs of such a Marriage or to the Heirs of Titius whilks failzing to the Heirs of Seius c. Of these Tailzies there are many several ways as the Fiar pleaseth to invent and ordinarily in them all the last Member or Termination is the Heirs whatsomever of the last Branch or Person substitute or the Disponer and when that takes effect by succession the Fee which before was Tailzied becomes simple A Tailzie must necessarly be a part of the Infeftment for no write apart can constitute a Tailzie though Bonds or Contracts of Tailzie as personal or incompleat Rights may force the Contracter or his Heirs to perfect the same They must also be constitute by the Superiour being a part of the Infeftment granted by him either originally in the first Constitution of the Fee or thereafter by Resignation or Confirmation and as a Superiour is not oblieged to alter the Tenor of the first Investiture or to accept a Resignation or grant a Confirmation in any case except where it is provided by Law whereby he is necessitat to receive Appryzers and Adjudgers So neither in that case is he oblieged to constitute a Tailzie but only to receive the Appryzer or the Adjudger their heirs whatsomever unless the Debt and Decreet whereupon the same proceeded be conceived in favours of Heirs of Tailzie in which case the Appryzing or Adjudication and Infeftment thereupon must be conform unless it be otherways by consent of parties Tailzies also being Constitute are broken or changed by consent of the Superiour accepting Resignation in favours of other Heirs whether the resigner resign in favours of himself or his heirs whatsomever or in favours of any other and their heirs But most ordinarly by Appryzings or Adjudications whereby the Superiour is necessitat to receive another Vassal and his heirs though perhaps he be substitute himself as an heir of Tailzie as if it be provided that failzing other heirs there mentioned the Fee return to himself But Infeftments holden of the King have this priviledge that they are not refused either upon Resignation or Confirmation as the Fiar Purchaser pleaseth Yea it is declared by several 〈◊〉 of the Privy Council that the King or his Commissioners ought not to deny his Confirmation upon the reasonable expenses of the party which Ordinances are repeated in the Act of Parliament and though the design thereof gives not occasion to ratifie the same yet they are contained in the Narrative as Motives of that Statute and therefore are not derogat but rather approven Parl. 1578. cap. 66. And though several Kings have revocked Infeftments granted by them from heirs of Line to heirs Male and of Tailzie yet the effect of such Revocations hath never been tryed by Suite or Decision Conjunct-infeftments to Husband and Wife and their heirs are also Tailzied and though if the heirs of that Marriage be a Son and of a first Marriage he may be both heir of Line and heir of the Marriage yet may he enter as heir of the Marriage and if the Defunct had other Lands provided to heirs whatsomever he may renunce to be heir in these Lands to the effect they may be first burdened with his Fathers Debt and he or his Lands provided to the heir of the Marriage can be but burdened in the second place in subsidium of what is wanting by the Executors or Heretage befalling to heirs whatsoever much more are Infeftments Tailzied which are granted to Husband and Wife and to the Bairns of the Marriage whereby Male and Female come in pari passu Bonds taken to Parents and after their decease to such a Child nominatim whereupon Infeftment followed makes a Tailzied Fee but these are rather called heirs of provision and these are most properly called Tailzied Fees where several Branches are specially substitute one failzing another But seing heirs of Tailzie fall under consideration in the transmission of Rights by Succession we shall insist no further thereon in this place but shall proceed to consider the Clauses which are adjected in Infeftments not being of the Substantials or Solemnities thereof and how far such come in as parts of the real Right affecting singular Successors and how far they are only personal affecting alone the heirs of the Superiour or Vassal And last we shall consider the effects of Infeftments themselves As to the first beside the
of Tailzie named was found to give interest to that person as heir of Tailzie to declare that the sum was unwarrantably uplifted or payed without his consent or order of Law by consigning it to be imployed in the same terms and that though he was heir of Tailzie to the uplifter that he was not oblieged to fulfil his deed or warrand his Discharge being contrair to the terms of the Tailzie as to which terms he was Creditor reserving always to lawful Creditors how far they could affect the sum for the Fiars Debt February 3. 1674. Drummond contra Drummond And a Clause in a Bond whereby a Woman oblieged her self to resign Lands in favours of her self and the heirs of her Body whilks failing to the heirs of her Father and oblieging her self to do nothing contrary to that succession whereupon Inhibition was used before her Marriage was found effectual against her and her Husband whom she Married thereafter and Disponed the Lands to him and his heirs asbeing a voluntary deed without an equivalent cause onerous albeit the Fathers heirs behoved to be the Womans heir of Tailzie January 28. 1668. Alexander Binnie contra Margaret Binnie Yet these restricting Clauses without irritancy though conceived as Provisions or Conditions if they be not in the Investiture albeit they be in prior Obligations Dispositions or Contracts there is no pretence thence to affect the Fee as a real burden and even though they be contained in the Investiture seing Clauses irritant uses to be added thereto they are understood to be but personal Obliegements whereupon no diligence having followed they cannot be effectual against singular Successors whether by Legal or Voluntary Dispositions And as to such restrictions with Clauses irritant we shall add no more thereunto then what hath been said Property being thus Constitute by Infeftment it is to be considered what are the particulars it comprehends and implys though not exprest wherein this is a general Rule that Lands being Disponed with part and pertinent all is carried thereby that falls under the Denomination of the Lands Disponed a caelo ad centrum and all that in the time of the Disposition was accustomed to follow it not only as servitudes but even discontiguous parcels of Land which were not known as distincta tenementa or parts of any other Tenement except what the Law reserves or the express provision of the Superiour 60. The Law reserves all these things which are called regalia or Jura publica which the Law appropriateth to Princes and States and exempeth from privat use unless the same be expresly granted and Disponed by the King and if the Superiour be a Subject if he have any of these Regalia from the King they remain with his Superiority unless he expresly Dispone them to his Vassal the Superiour may have them from the King either expresly in any Tenement holden of the King or tacitly when Lands are erected by the King to him in a Barrony or any higher Dignity whereby many of these regalia are comprehended Barronia being nomen Universitatis yet that will not comprehend First Mines and Minerals of Gold or Silver or Lead of that fineness that three half-pennies of Silver may be fined out of the pound of Lead which Mines are declared to belong to the King wherever they can be found Par. 1424. cap. 12. But Mines of Iron Copper and Lead of less fineness belong to the Proprietar and are not accounted with us Regalia though in some other Countreys they be Secondly Neither do Treasures found in the Ground belong to the Kings Vassals though their Lands be erected in Barronies unless they were exprest A Treasure is Money hid in the Ground the owner whereof is not known Thirdly Though all Proprietars have the priviledge of Fowling within their own Ground yet Swans are peculiarly reserved to the King and therefore the priviledge to kill Swans is not carryed under the name of Barrony unless they were particularly exprest Fourthly Confiscat Goods are not carried even under the name of Barrony unless they be exprest 61. Yet there are other regalia which are carried under the name of Barrony though not exprest as Jurisdictions and Courts Fortalices Salmond Fishing Forrests and Hunting of Deer and Ports with their pettie Customs established by the Kings grant or long Possession for repairing and upholding these Ports which therein differ from Creiks or Stations which are natural but Ports are builded artificially and need reparation 62. Jurisdiction and Courts are comprehended in Barrony in so far as concerns Civil Jurisdiction and Blood-wits or lesser Crimes but will not reach to Capital Punishment unless the same be exprest as it uses to be when the Priviledge of Pit and Gallows are exprest or Out-sang and In-sang Thief which seems to extend to the punishing of no more Crimes but Theft and these who have only In-sang Theft can only punish Thieves taken in the Fact Though Courts be exprest they will extend to nothing Criminal no not to Blood-wits unless these be exprest but only to Civil Debates requisite for the Propriatar as to determine differences amongst his Tenents Neighbourhead Multars and smaller Matters or to constitute a Baily who may judge betwixt the Propriatar and his Tenents as to his Rents Duties and Services and also may determine differences amongst his Tenents But all Jurisdiction is Cumulative with and not Exclusive of the Superiors Jurisdiction so that there is place of Prevention The first Atatcher if he proceed is preferred and if the Superior and Vassall atatch together the Superior is preferred 63. The Courts of Vassals though they be Barrons and have the Priviledge of Capital Punishment are not of the same Extent and Importance as the Sentence of the Judges ordinary of the Kingdom such as Sheriffs Stewarts Bailiffs of Royaltie Regality and Burghs For first The extent of their Jurisdiction is not so ample Secondly The Jurisdiction of all Barrons and Free holders was of old subordinat to the Sheriffs and other Judges ordinary within whose Jurisdiction the Lands lay Par. 1503. cap. 95. And then there was place for falsing of Doom or appeal to the Sheriff-court who was to warn the Parties upon fifteen days and make the Suiters of the Sheriffdom Ward thereupon Whereby it appears that the Free-holders of the King who owed Suit to the Sheriff-court at least an Inquest of them were to concur with the Sheriff in discussing the appeal from the Baron or Free-holder But now these Appeals or falsing of Dooms from any Court to another have been antiquated and wholly in desuetude since the Introduction of Advocati ons which is a far more excellent remeed for thereby Causes are not stopped at the choice or humor of parties But the reasons of Advocation are specially considered by the Lords whether they be relevant and have such Instructions as can be expected before discussing and the Subjects are further secured by the late Act of Parliament that poinding cannot proceed without a charge
hereafter Teinds also must come in as Servitudes though they are accounted a distinct Right 1. The Roman Law divideth personal Servitudes into Usufruct Use and Habitation Usufruct is the power of disposal of the use and fruits saving the Substance of the thing which if it be restrained to these persons and their proper use without making profite or disponing to others it is called the use and because of some special Consideration in the Law of that use of Houses Habitation is a distinct Servitude from other uses 2. All Servitudes with us come under some of the kinds before named Personal Servitudes are either constitute by the deeds of men or by the Law which provideth a competent portion to either of the surviving Spouses out of the Lands and Tenements of the other during the Survivers Life as if the Wife survive she hath the third of her Husbands Tenements and if the Husband survive he hath the Liferent of the Wifes whole Tenements and that provisione legis alone But other Liferents constitute for surviving Spouses or otherways are provisione hominis So may the Terce or Liferent by Courtesie be provided and some things altered from the course of Law but oftner Liferents are constitute by Conjunctfee and most ordinarly otherways which therefore retain the common name of Liferents appropriat thereto and distinct from Conjunctfees 3. Liferents are sometimes provided particularly and sometimes generally for the whole or such a share of the Conquest during the Marriage which though not fulfilled by the Husband in his Life is effectual against his Heirs and is not accounted a fraudulent provision though it be the whole Conquest even amongst Merchants yea it was found effectual for recovering the rents of the Conquest Lands without Infeftment against the Husbands Heir in the case of the Relict of Johnstoun Merchant in Glasgow And where a Husband purchased Lands in favours of his eldest Son being then an Infant and not to himself yet his Relict was found to have Right to her Liferent thereof as being a fraudulent deed in prejudice of the obliegement of Conquest July 3. 1627. Countess of Dumfermling contra the Earl of Dumfermling her Son But these provisions of Conquest do not hinder the Husband acquirer to denude himself wlthout Fraud for any onerous or just cause as selling for a price or disponing to Children whether it be the appearand Heir by ordinary Terms of Contracts of Marriage to younger Children or to Wives of subsequent Marriages June 16. 1676. Katharin Mitchel contra the Children of Thomas Litlejohn And such a Clause being of all sums acquired during a second Marriage was found to annul an universal Legacie to the eldest Son of the first Marriage but not to annul competent provisions to the Bairns of the first Marriage June 19. 1677. Murrays contra Murrays The like January 3. 1679. Mr. Alexander Gibson contra Elizabeth Thomson Yea a Clause providing the present Stock and all the Conquest to the Bairns of the Marriage whilks failing the one half to the mans Heirs the other to the wifes Heirs was found to make the man Fiar and not to hinder him to provide his whole means which were very great to his Bairns of a subsequent Marriage there being no Bairns surviving of the former marriage December 1. and 21. 1680. Alexander Anderson contra Andrew Bruce But as to such Clauses Conquest is only understood where the Husband acquired more then he had the time of the Clause but not when he sold some Lands and acquired others of no greater value June 27. 1676. Earl of Dumfermling contra Earl of Callender yea a Clause of Conquest in a Wifes Contract of Marriage who was otherways sufficiently provided was found to be with the burden of the Annualrent of a sum which the Husband declared under his hand to be a part of the price of the Lands acquired remaining due to the seller Decem. 20. 1665. Lady Kilbocho contra Laird of Kilbocho 4. This is common to all kinds of Liferents and involved in the nature thereof that they must be salva rei substantia which by Statute is especially extended to Conjunctfiars and Liferenters that they must be countable and find surety not to wast or destroy the Biggings Orchards Woods Stanks Parks Meadows or Dovecoats but that they hold them in such like kind as they receive them Par. 1491. cap. 25. which is confirmed and declared to proceed upon twenty one days by Sheriffs Bailies of Burghs or Regalities under pain of Confiscation of the Liferent-right to the Kings use Parliament 1535. cap. 14. And though the Narrative of the Statute expresseth Conjunctfiars and Liferenters giving Caution as being most ordinary by provision of men yet the Statutory part is general at least may be extended to Terces and Liferents by the Courtesie So a Liferenter was Charged Summarly to uphold the 〈◊〉 Liferented and to leave it in as good case as she found it without precognition how it was the time of her Entry March 28. 1626. George Foulis contra Isobel Allan By Act of Parl. 1594. cap. 226. Anent ruinous Tenements within Burgh which being cognosced by an In quest to be ruinous as become or which may become within a short time uninhabitable the same must be repaired by the Liferenter or the Fiar may enter in Possession finding Caution within the Burgh to pay the Liferenter the Mail thereof as the samine gave or might give the time of the precognition but this Act was not found to derogat from the former Acts nor that Precognition was requisit before finding Caution except in Tenements within Burgh decayed before the Liferenters entry as was found in the foresaid case George Foulis contra Isobel Allan Neither was the Liferenter freed from Caution upon her offer to quite the Possession to the Heretor for paying of the Rent the Tenement not being ruinous at her Entry 5. It is also common to Liferents and Conjunctfees that the Liferent-right is lyable with the Superiour of Ward-lands or his Donatar for an Aliment to the Heir to be modified by the Lords proportionally according to the quantity of the Land in Ward and Liferent by the said Statute 1491. cap. 23. Vide Tit. Heirs § 3. 6. Liferents are either Constitute by way of Reservation in Infeftments of Property or otherways by a several Infeftment but it cannot become a real Right and be effectual against singular Successours without Infeftment though most Servitudes may be Constitute by Disposition and Possession 7. Yea though Liferents being Constitute by Infeftment may be conveyed by Assignation because there can be no subaltern or renewed Infeftment of a Liferent which is only personal to the Liferenter and the Right is incommunicable yet the Fruits and Profits arising thence are communicable and assignable 8. It is also common to Liferents that nothing done after their Infeftment by the Constituent or his singular Successor can prejudge the Liferenter And so an Appryzer from the Husband was
before Yea Citation before the 5. years and Inhibition in the 5. years with a subsequent Security was found sufficient to take off the benifite of this Act July 23. 1666. Earl of Southesk contra Marques of Huntlie This priviledge is not competent by Exception or Reply offering to prove 5. years possession but by a reture upon a Commission served by an Inquest July 13. 1666. Sr. Henrie Hoom contra Sr. Alexander Hoom. In this Statute it is also provided that where there were Tacks or possessions of Lands or Teinds possessed by the forefault Person in respect that the rights thereof might also be abstracted that the King and his Donatar should continue in that same possession for sive years without any accompt for the profits thereof and longer if a Right be instructed of the forefault person And if a Fewer be forefault the Land is not lyable for the Feu dutie preceeding the Forefaulture because the discharges thereof might have been abstracted Possession for feuer then 5. years by the Forefaulted person was found sufficient to continue for 5 years though no Tack was instructed Jannuary 24. 1667. Sr. Henrie Hoom contra Sr. Alexander Hoom. 36. It is also declared in this Statute that the Forefaultur of the appearand Heir carries therewith the right of the Lands to which he might succeed though he were never entred Heir nor Infeft whereof Craig mentions a case Lib. 2. Dieg. 8. That the Daughters of the Laird of Laisindrum were excluded from their Succession to their Goodsir because their Father was forefault though he was never received nor infeft in these Lands 37. Craig in the forecited place moveth but determineth not this question whether the Forefaulture inserreth a Corruption of the Blood of all the Descendents of the Forefault Persons whereby till they be restored they are incapable of any Succession though descending to them by the Maternal Lyne This Corruption of the Blood is frequently in Fngland where persons are specially attainted and convict of Treason And sometimes with us it is called dishabilitation and is a part of the Doom or Sentence that the Successors of the Person convict shall be incapable of Lands Estate Honour or Office Yea then Fame and Memorie is sometimes condemned and their Surname abolished as was done in the Forefalture of the Earl of Gourie But it is not consonant to our Customs that Forefaulture in other cases should infer this Corruption of Blood First because of the Multiplication of cases to which Forefaulture is now extended as to Thest on 〈◊〉 men and false Coyn. 2. If none of the Descendents of 〈◊〉 persons were Capable of Succession to any person that could not be by reason of any speciality in the matter of Succession but of something in their person by reason of the Forefaulture excluding them thence which would not only take place in Heritage but in Moveables Yea the Oye or farther Off-spring of the Forefaulted person could not succeed to their ownimmediat Parents which would inferr that they could be capable of no Goods or Means but the same would be instantly Confiscat 3. Though Forefaultures in Scotland have been very frequent the off-pring of such have ordinarily acquired Lands and Goods and their Children Succeeded them therein without obtaining Restitution of their Blood So that this Corruption of the Blood is rather to be thought a Speciality in some Attrocious Treasons by the tenor of the Doom of Forefaulture then a general consequence thereof 38. But whereas it hath been said that the appearand Heir being Forefaulted the King hath right to the Heritage to which he might succeed It may be Questioned whether that my be extended to the appearand Heir if he be Forefaulted during his Predicessors Life Or if it be only in the case that the Heir apparent is forefaulted after the death of his Predecessor Where de presenti he may be Heir there is no doubt if the person forefaulted should be fugitive and survive his Predecessor But the Heritage accresing to him wherein he might de presenti infeft would fall under forefaulture though he were not actually infeft And it seems no less clear that being forefaulted if he should die before his Predecessor that his brother or Collaterals might succeed to their Father or any other to whom the forefaulted person if he had survived them would have succeeded It is more doubtfull whether his descendents could if any were for these would Exclude the Collateralls And there seems no reason to exclude them from their Grandfathers Heritage not being dishabilitat And seing I have not found it extended further I conceive it more favourable that the Heir appearand dieing before his Predecessor should not hinder his Descendents to succeed to that predecessor But unless the forefaulture did incapacitat the Predecessor to dispose upon his own estate the forefaulture in that case would be improfitable Yet seing we have no complaints of exhaeredatione in Scotland But that Parents may freely dispose of their Estates at their pleasure it would be hard to bind up the Parent more in Relation to the Fisk then tohis own Child unless fraud to prevent the effect of the forefaulture without a rationall cause do appear 39. For the further Security of the King and his Denatar it is provyded Par. 1594. cap. 202. That no Letter of Pension Factory Band or Assignation granted by any forefault person shall be valid unless it be confirmed by the King or authorized by Decreet of an ordinary Judge obtained before citation in the Process of Forefaulture which seems to insinuate that Creditors should be satisfied out of the forefault Estate but it will reach no further then the Moveables fallen by forefaultnre which seems to be affected in the same way as falling by Single-escheat the full Dominion in both being the Kings but with the burden of admitting the diligence of Lawful Creditors before Declarator but I have not observed this practiced in moveables of forefault persons The reason of this Statute appeareth by the Act immediately preceeding whereby a former Act of Parliament in favours of the Vassal of forefault persons is resoinded and appointed to be delet out of the Books of Parliament which rescinded Act though it be not Extant but delet as aforesaid hath affected forefault Estates with the debts of the forefault person and with the subaltern Infeftments granted by forefault persons not confirmed And therefore such Rights being Constitute by a Law then standing could not be derogat by a subsequent Law And therefore it was 〈◊〉 to Caution by the foresaid Act 202. That Simulat or antedated Rights might not affect Estates Forefaulted before the said rescissory Act. 40. Sentence of Forefaulture being pronunced is declared Irreducible upon any nullitie in the process upon which it proceeded till the 〈◊〉 be remitted by the King or the partie tryed and acquite thereof But restitution shall only be granted by way of Grace to the parties forefaulted or their Posteritie Par. 1584.
Ascendent or these of their side but only to Agnats conjoined by the Father Grandfather c. Which holdeth even though the heritage descended from the Mother or these of her side for in the service of Heirs the nearest lawfull Heirs are only inquired and retoured either by the Lineall Succession aforesaid or by express Tailzie or provision in the Infeftment without respect from whence the Inheritance flowed for which we have no Satute nor Custom But in England it is otherwayes for Paterna paternis and Materna Maternis takes place but with us the contrare was found in the case of John Gilbert as Craig observeth Lib. 2. Dieg 17. And he there relateth that many afterward changed their opinion therein and though there be equity in it yet no Law nor Practique since hath favoured the Maternal Line but the Father was found Heir to his Son even in the Lands where the Son was Infeft as Heir to his Mother and did exclude his Brother Uterin by that Mother February 5. 1663. Lenox contra Lintoun 4. In all this Line of Succession there is place for Representation of Descendents in place of their Defunct Parents So that Females of a further degree by the Right ofrepresentation exclude Males of a nearer degree as the eldest Sons Daughter will be preferred in theGrandfathers Inheritance to his other Sons in private Rights though that be contraverse by the more comon Feudall Customs as is largely and learnedly dispute by Tiraquellus 35. In this Lineall Succession the Father Grandfather or other Ascendents of the Paternall Line succeed in heritable Right next unto Brothers and Sisters and before all other Collateralls or Agnats We have shown before why there is no mention of Ascendents in the Jewish Succession because such a case could hardly occurr among them Craig Lib. 2. Deig 13. affirmeth that it was doubtfull in his time whether Ascendants could succeed in heritable Rights and that he heard the opinion of some learned men in the contrary and that he had not found the Lords decide in it and that it is contrare to the Feudal Law and also to his own opinion yet he brings both evident reason and example in the contrary the reason is that no Inquest can justly Retoure that the Father Brother is nearer then the Father He bringeth also the Example of the Earl of Angus served Heir in the Earldom of Angus to his ownSon whom he had infeft therein And the Lord Colvill in likemanner having infeft his Son in all his estate though sum affirmed that this was by provision in the infeftment yet that the Service was is sure but that provision is uncertain and though some also were doubtful whether the Earl of Angus was served and infeft as Heir to that same Son which well inferreth that the Father was not infeft as Heir to his Son but not that he was not served Heir to him therein for he might have been served and not infeft Whereby the service as incompleat became void and the next Earl behoved to serve of new to the Son who died last vest and seased as of Fee The Custom and common opinion since is for the Ascendants and so the Earl of Roxburgh was served as Heir Male to his Son The Lord Ker and many others which ought to be the more favoured as more conform to equity and the Law of nature which in Dubio ought to take place where there is no Law nor custom to the contrary as with us there is none Neither did I ever hear of one who attempted to exclude a father by the Fathers Collaterails And though there had been no Decision upon it neither have there been upon many other uncontroverted Customs especially in Succession but the acquiescence of all Parties having interest in matters of so great moment is a strong Evidence of the Nationall consent by Custom But it hath aho been so decided by the Lords Hope Succession Mr. Robert Burnet contra Mauld Yea a Son being infeft as Heir to hisMother dying without Issue his Brother uterin by the Mother was not found Heir to him but his Father February 5. 1663. Lenox contra Lintoun As to the alledged opposition of the Feudall Law as hath been oft times said it is Local And therefore as in England all Ascendents are excluded so in Germany they succeed in the next place after descendents and are preferred to Brothers and sisters according to theNaturall course ofSuccession The reason why Brothers and Sisters of the Defunct are preferred to the Fathers with us may be because such Fees do commonly proceed from the Father And therefore by the continuance of that sameFatherly affection are derived to the Brothers and Sisters and because they are in more need of Provision then the Father TITLE XXVII Heirs 1. Appearand Heirs may pursue exhibition ad deliberandum 2. They may defend their predecessors Rights and Possessions being called or compearing for their interest and their executors have right to the Rents of these years they were appear and Heirs 3. The Aliment of Heirs from the Donatars and Life-rentars 4. Heirs not entred have the benefit of Clauses which by Nature import they should not be actual Heir 5. Heirs have interest in all Rights granted to their Predecessors though not mentioning Heirs who are not exclusive of Heirs by their Tenor and Nature 6. Heirs have the benefit of all Rights heritable by Destination or having a future Tract of time after the Defuncts Death 7. Heirs have Right to Moveable heirship or obleigment for Sums wherein Executors are excluded 8. Heirs of Lyne are heirs generally their interest 9. Hirship Moveables 10. Heirs of Conquest their interest 11. Heirs Portioners their Interest 12. Heirs Male Tailzie and Provision their interest 13. All Heirs are lyable pasivè for the Defuncts debt but not in the same way 14. Heirs Portioners how far lyable 15. The effects of different Provisions or Obligations by Defuncts in Favours of Divers heirs Portioners 16. Heirs not being Portioners no substitute in Bands are lyable in solidum 17. The order by which heris are lyable passivè and may be discust 18. Heirs of Tailzie ripresent not the Defunct in obligations contrary to the Terms of the Tailzie 19. Heirs of Marriage may quarrel their Predecessors Deeds being meerlygratouitus in their prejudice but not such as are onerous or rational Deeds 20. Heirs having the benefit of discussing may propone the Exception that all parties having interest are not called without instructiug the Right whereto they may succeed 21. The exception of the order of discusing is not sustained without condescending on the heritage whereunto the anterior heir may sueceed and what is discusing 22. The order and effect of a Genral Charge to enter heir 23. The order and effect of a special charge to enter heir 24. Renounciation to be heir its order and effect 25. The entrie of heirs general and effects thereof 26. The entrie of heirs upon precept of Clare Constat
27. The entrie of heirs by hesp and steeple within Burgh 28. Entrie of heirs by Brievcs out of the Chancellarie 29. To whom these Brieves are directed 30. The manner of citting the Inquist and Proclaming the Brieve 31. Exceptions competent against members of Inquist 32. The appearand heirs claim 33. Exceptions against the Claim 34. First head of the Brieve 35. The 2. head of the Brieve 36. 3. head of the Brieve 37. The 4. head 〈◊〉 of Brieve 38. The 5. head of the Brieve 39. The 6. head of the Brieve 40. The 7. head of the Brieve 41. The Service 42. The Reture 43. Reduction of Retures by a great inquist 44. Reduction thereof otherways 45. Reduction of Retures how competent 46. Precepts out of the Chancellarie to Superiours to Infeft 47. Suspensions of the precepts and the reasons competent therein 48. The certification of the loss of the Superiority during the life of the Superiors disobeying 49. Further reasons of Suspension of these precepts 50. Whether the Persons nearest at the Defuncts decease may be entred where a nearer is in spe 51. Who are Fiars of Conjuct-fees or Provisions substitute 52. The entreast of heirs of Provision and import of Clauses of Conquiest in Contracts of Marriage BY the former Title it appeareth who are Heirs let us now Consider what their Interests are by being Heirs And that is either Active by the benefit or Passive by the Burden whereunto they do succeed For Heirs being successors in Universum jus quod Defunctus Habuit they do fully represent the Defunct both in the Rights belongiug to him and in the Debts due by him First then of the Interest common to all Heirs And next of the interest speciall to the severall Heirs 1. The interest of Heirs are most properly Competent when they are entered Heirs according to the due Course of Law of which afterward Yet somethings are competent not only to heirs entred but to appear and Heirs as first they have interest to prusue Exhibition of all writs made by their Predecessors to their Wives Children and others in Familia but not of writes made by them extra Familiam December 6. 1661. Margaret Forrester and Schaw of Sor nebeg her Spouse Contra Tailzefere Or to their Predecessors Simply to the effect they may know the condition of the heritage And may desiberat whether they would Enter Heirs or not Seing if they do Enter they are lyable for all the Defuncts Debts though they farr exceed his Estate and have no benefit of Inventary as in moveables And therefore they are allowed to pursue for inspection of all Writes Importing a debt of the Defunct Yet not so as to open the Charter Chists of Strangers who have purchased Lands from the Defunct on pretence of the Burden by the Warrandice for in that case the Strangers Infeftment will exclude them and only dispositions made to these in the Family hinder not inspection of the Heirs whole Rights Flowing from the Defunct or his Predecessors But I doubt not but all will be oblieged to produce Bands or Personal obleigements which might burden the appearand Heir if he enter As was found in the Case of Dispositions and Bandsgranted by the Defunct to Strangers Feb. 26. 1633 Laird of Swynton contra Laird of Westnisbit But if Infeftment had followed upon the Disposition the Defender would not be oblieged to produce the Disposition because the appearand Heir might by the Registers find his Predecessors denuded This inspection is competent during their Annus deliberandi It was so found in Favours of the appearand Heir pursuing Exhibition within the Year Feb. 26. 1633. Laird of Swinton contra Laird of Westnisbit where the Writs pursued for were likely to be the ground of a Plea against the Defender himself This Exhibition ad deliberandum is competent at any time before the Heir enter even after the Annus deliberandi which is granted to appearand Heirs that they may be free of all Actions on Chargesto enter Heir Reductions or Declarators during that time if they do not enter or behave as Heirs But on this accompt the appearand Heir hath no Interest to put parties to Compt and Reckon ad deliberandum June 22. 1671. Lessies contra Alexander Jeffray In these Exhibitions the Relations or Propinquity of Blood of the appearand Heir passeth without probation as Notorium So as if the Defender be absent the Decrcet will not be null for want of Probation of the Title Yet a Scots man born of Parents residing in Holland was found to have no Interest to pursue Exhibition as appearand Heir to his Father till he produced an Authentick Declaration and Tryal by the Magistrants in that place that he was the eldest lawful Son of his Father December 17. 1627. Fleming contra Broun 2. Appearand Heirs may defend all Rights competent to them upon Production of their Predicessors Infeftments whether they be called or compear for their Interest January 19. 1627. Laird of Rosline contra his Tenents and George Fairbairn for his interest They may also continue their Predecessors Possession and pursue for Mails and Duties of there Lands finding Caution in case of doubtfulnesse to make these forth-coming to any other having Interest Spots Heirs James Oliphant contra his Tenents Yea the Rents of Lands were so far found to belong to an appearand Heir That though he died un-entered the next Heirs not entering to him was found obleiged to pay the former appearand Heirs Aliment in so far as he intromitted with the Rents of the Years during which the former appearand Heir lived December 20. 1662. Ladie Tarsapie contra Laird of Trasapie And consequently the Rents might be confirmed by his Executors or arrested for his debt The like was found of moveable heirship wherewith the appearand Heir was intertained by his Mother June 29. 1629. Robertson contra Dalntahoy They may also pursue the Life-renters of their Estate for Aliment Feb. 12. 1635. James Hepburn contra Dam Margaret Preston and Isobel Seatoun 3. The Aliment of Heirs out of there Lands being Life-rented or in Ward is constitute by the Act of Parliament 1491. cap. 25. Bearing a reasonable Living to be given to the Sustentation of the Heir after the Quantitie of Heritage if the said Heir have no Blensh or Feu ferm to sustain him as well of Ward Lands fallen in the Kings hands as in the hands of any Barron Spiritual or Temporal whereby it is clear 1. That the Quantity of the Aliment is indeterminat And therefore is modified by the Lords according to the Quality of the Heir and his Estate 2. It takes no place if the Heir have Blensh or Feu Lands sufficient to sustain him but if these be not sufficient the same will be made up by the Life-renters and Wardatars proportionally March 16. 1622. Heir of Milioun contra Calderwood Yea where the Minor had any other means sufficient to intertain himself as the Heir being a Writer and thereby able to Aliment himself he
heir of Conquest and the other retaineth the common name of the heir of Line Conquest is feudum novum whereunto the Defunct did not succeed as heir to any Person or whereunto the Defunct could not succeed as heir for if that were disponed to him by the Defunct whereunto he would have succeeded it were but Preceptio haereditatis and so remained to be repute as heritage to descend to the Younger and not to ascend to the Elder as Craig observeth lib. 2. dieg 15. Such heritages are rare and befall only by Tailzie or Provision amongst midle Brethren Because the eldest by primogeniture excludeth the rest from being heirs of Line but it may befall in case of the heirs of Lyne when the nearest Successor is the Fathers or Grand-fathers Brothers or their Issue there being Elder and Younger Brothers but Conquest is frequent because not only that which is acquired properly by the means and industry of the Defunct But that which is by Gift of the Defuncts Parents or any other or whatsoever the Defunct could not succeed to is Conquest Yet if the heir of Conquest succeed that which was Conquest becomes heritage and descends As if there were four Brothers and the third acquiring Lands Died without Issue the second would be his heir therein who if he Died also Infeft the Lands would fall downward to the Youngest Brother and not upward to the Eldest Brother The custom of England is contrary for thereby the eldest Brother succeedeth to all his Brothers failling the Issue But with us the Immediat elder or younger doth always succeed though of different Marriages none of them being Brothersgerman And therefore in the case proposed by Craig lib. 2. 〈◊〉 15. In fine of a Brother by a second Marriage dying without Issue and having three Brothers of a former Marriage no doubt the youngest would succeed according to the Opinion of Oliphant and King there related Albeit that Craigs opinion be that the eldest would succeed It was so decyded contrary Craigs opinion July 20. 1664. Laird of Clerkington contra Stewart Heirs of Conquest succeed not only to Lands Conquest by their immediat Predicessors but in other heritable Rights passing by Infeftments as Annualrent or such as are heritable by distination and which are accomplished by Infeftment as Despositions of Lands or Annualrents Appryzings or Adjudications c. The like where an Annualrent was first Disponed and a Clause of Requisition and Reversion subjoyned July 7. 1675. Robertson contra Lord Halkertoun and in Reversions Hope de Successionibus heirs of Pitcairne But in this case it is not cleared whether the Lands given in Wodset were heritage or conquest but it seems if the Lands had been heritage as they were Wodset the Reversion would also belong to the heir of Lyne as the Lands whereto it was accessory would Yea heirs of Conquest succeed in heritable Bands bearing Clause of Annualrent As was found amongst the heirs of Doctor Craig But the heirs of Lyne and not the heirs of Conquest succeed in Tacks acquired by the Defunct Hope Succession Earl of Dumbars heirs June 23. 1663. Ferguson contra Ferguson The heirs of Lyne do also succeed in Pensions or any other Right not requiring Infeftment as in these which having a tract of time after the Defuncts Death do thereby exclude Executors and do belong to the heir of Lyne and not of Conquest though they be acquired The heir of Lyne and not the heir of Conquest falleth to be Tutor or nearest Agnat to the Pupil to whom the heir of Lyne might Succeed The heir of Lyne hath right to the heirship Moveable and not the heir of Conquest 11. Heirs-portioners are amongst Heirs of Line for when more Women or their Issue succeed failing Males of that degree it is by the course of Law that they succeed and because they succeeed not in solidum but in equal Portions they are called Heirs-portioners and though they succeed equally yet Rights indivisible fall to the eldest alone without any thing in Lieu thereof to the rest As first Dignity of Lord Earl c. 2. The principal Manse being Tower Fortalice c. which doeth not extend to houses in Burghs nor to ordinary Country-houses the former being divisible the latter falls under division as pertinents of the Land whereupon they stand and are not as separata jura or distinct Rights 3. Superiorities are accounted indivisible and befal only to the eldest Daughter and her Issue and thereby all the Casualities of the Superiority either preceeding or following the Defuncts death as Ward Relief Marriage of the Vassals Heirs Nonentry Liferent Escheat c. The reason is because the Vassals condition ought not to be worsted and made subject to many Superiors by such Successions Craig lib. 2. dieg 14. excepteth the Superiority of Feu Lands the Feu Duties whereof are divisible amongst all the Heirs-portioners yet the former reason of the indivisibility of the Superiority in respect of the Vassals Interest reacheth Feu Superiorities as well as others and it is hardly conceivable how Superiorities should belong to the eldest and yet the Feu Duties divide to the rest seing the Superiority as being Dominium directum is the only Title for poynding the Ground or pursuing the Possessors or Intrometters with the fruits thereof It seems for the reason adduced the Superiority and therewith the Feu Duty befalleth to the eldest yet so because the Feu Dutie is constant and liquid and is not like the other Casualities of Superiority which are illiquid and accidental therefore the other Heirs-portioners ought to have Compensation for their parts of the Feu Duty in or off other proper Lands Or if there were moe Superiorities of Feu Lands so that some of the Superiorities might befal one Heir and others to other Heirs no particular Superiority being divided or the Vassal made Vassal to many Superiors I conceive it would be allowed or otherways the eldest Co-heir would be dicerned to infeft the rest in Annualrents out of the Fee correspondent to their share of the Feu Duty A Vassals Heir though the Defunct had taken Infeftment of more Heirs-portioners was not found oblieged to take Infeftment of some of them severally but either of all jointly or the eldest July 30. 1678. Lady Luss contra Inglis How far Heirs-portioners succeed passive and are lyable for the Defuncts Debt shall forthwith appear 12. Heirs Male and of Tailzie and Provision succeed not by Law but by the tenor of the Infeftment or Provision and therefore have that benefit and no more which is so provided to them or which is accessory thereto whereby any Right or Security of Lands or others befalling to these Heirs which is thereafter acquired by their Predecessors though the same be acquired to him and his Heirs whatsover yet the same will befall with the principal Right to which it is accessory to the Heir Male or of Tailzie or Provision As if a Proprietar Infeft himself or his Heirs
himself and the heirs of the first Marriage and thereafter resigned and Infeft himself and the heirs Male of the second Marriage which failling his nearest heirs whatsomever these heirs Male the second Marriage failled And therefore not the Daughter of the first Marriage only but she and the Daughters of a third Marriage Succeeded by the second Infeftment as his heirs whatsomever substitute to be his heirs of the second Marriage Craig hath the Case but otherways observed lib. 2. dieg 14. Where a person had provided his Lands to the heirs of three several Marriages of each whereof there survived a Daughter The question was which of the Daughters should succeed Whether the first as having the first Provision or the last having the last Provision The parties were three Sisters Aikmans In which the Lords admitted all the three Sisters as heirs Portioners and so confounded the Provisions being all equal and about the same thing which must be the Reason and not that which is there rendered Because the Defunct notwithstanding of these Provisions in Favours of heirs might have Disponed effectual to a Stranger And so likewise to his own Children of another Marriage For that Reason would have excluded the Daughters of the first Marriage and preferred the Daughter of the last Marriage And as hath been shown Tailzies of Provisions upon an anticedent onerous obligation Such as is Marriage hinder the Fiar to dispone or provide the same to his heirs of Lyne representing him simplie and must fulfil his Obliegment Albeit his Disposition to Strangers not so representing him will be effectual And therefore Craig in that same place observeth in the case of Isobel Barron who being heir to her Father of his first Marriage by which it was provided that the heirs of the Marriage should Succeed to all Lands conquest during the Marriage And thereafter having a Son of the second Marriage who was his Fathers heir of Lyne to whom his Father Disponed or provided a Tenement acquired during the first Marriage Yet the said Isobel as heir of that Marriage recovered that Tenement from her Brother as heir of Lyne But the main difficultie remaineth when the obliegment in favours of the heirs portioners are un-equal for when they are equal whether they become extinct by confusion or not it is alike But if they be so extinct when they are un-equal there will not be an equal suffering or abatement but the greatest obliegment will be extinct as well as the least Neither can such obligations be wholly extinct by confusion but only pro rata So that if there be three heirs Portioners for example the obliegment granted to every one of them can only be extinct for a thirdpart because they are but heirs in a third part and as to two third parts each two of them are debitors to the third And if the obligation exceed the value of the heritage such of them as find themselves losers if they enter heirs may abstain and renounce and they or their Assigneys may pursue any of the rest that shal enter for fulfilling of the Defuncts obliegments but if they be considerat when all the obligations joyntly exceed the value of the Estate they will all Renounce and Assigne there obliegments and their Assigneys will be preferred according to their dilignece without consideration of the priority or posteriority of the obliegments but if they happen to enter or when their provisions are not Personal to themselves nominatim but as they are heirs of Provision and therefore necessarily require that they must be heirs before they can obtain their Provisions then the obliegments or Provisions of each Portioner are extinct as to their own proportion but they have like Action against the others heirs portioners for there proportion as other Creditors have the point will be clear by example if three Sisters were provided by the Father to un-equal Portions The first to 15000. Merks the second to 12000. Merks the third to 6000. Merks and the Defuncts whole Estate had only been worth 18000. Merks All of them entering the case would be thus The eldest would succeed to 6000. Merks of the heritage for her part and the second would be lyable to her for 5000. Merks as the third of the her provision to whom she would also be lyable for 4000. Merks as the third of the seconds Provision which being compensed the second would be lyable to the first in an 1000. Merks dc claro In like manner the first would be lyable to the third in 2000. Merks and the third would be lyable to the first in 5000. Merks which being ballanced the third would be debitor de claro to the first in 3000. Merks So the Interest of the first would be 6000. Merks as her own portion and one out of the Second and Three out of the Thirds Portion being in all a 10000. The second falleth 6000. as her share out of which she is lyable in 1000. Merks to the eldest and the youngest is due to her de claro 2000. Merks whereby her interest will be 7000. Merks the youngest Portion will be 6000. Merks out of which she is due to the eldest 3000. Merks and to the second 2000. So there will remain only free to her 1000. Merks This may clear the case as to liquid Sums and as to Dispositions or Provisions of Lands or other obliegments in facto These or the Interest or Value will be the same way effectual amongst the Heirs Portioners as if they had been made to Strangers Except where the same Disposition or Provision is made to divers of them For then either being equally oblieged to others as representing the Defunct the same become void and in-effectual protanto As was found in the case of the Sisters Aikmans But since the Act of Parliament 1621. against fraudulent Dispositions the first Disposition or Provision constituting that Party Creditor may give ground to Reduce a posterior Disposition of the same thing to another of the Heirs Portioners as being without a Cause onerous after contractiong of the first debt but that will not hold in Bands for Sums of Money all which will have their effect as is before said Neither will it hold when the Provision of Lands provideth the Party provided to be Heir for thereby the party cannot Quarrel that Predecessors Deed Otherwayes the first Obliegment or Disposition to any of the Heirs Portioners nominatim may Reduce any posterior Disposition to others of the Heirs Portioners Two Daughters being served both Heirs Portioners to their Father in some Teinds but one of them Succeeding to her Brother who was Infeft as Heir to his Father in Lands excluding the other Sister who was not Sister German to her Brother by both Bloods and both being pursued for their Fathers Debt they were not found lyable equally but proportionally according to the Interest they Succeeded to the one being only immediat Heir to her Father in a Right of Tiends wherein her Brother was not served
and Infeft the other being equally and Immediately Heir to her Father in these Teinds and mediatly Heir to her Father by being Heir to her Brother who was Heir to his Father being Infeft in the Lands by precept of Clare Constat without Service June 10. 1673. Christian White contra Janet White 16. Other heirs not being Heirs-portioners are lyable for the Defuncts Debt in solidum except heirs substitute in Bands who are only lyable quoad valorem in the sums in these Bonds July 3. 1666. Fleeming contra Fleeming 17. Heirs are not conveenable at the Creditors option as in the case of heirs and Executors but they have the benefit of an order of discussing Thus first Debts and Obliegments relating to any particular Lands or Rights and no other do in the first place affect the heirs who may succeed in these Lands or Rights before the heir general So an Obliegment oblieging the Defuncts heir of Line or Tailzie so soon as he should come to his Estate was found to affect the heir of Tailzie who came to that Estate without discussing the heir of Line Hope de Haeredibus Lyon contra Sir Robert Scot. Nicol. de haereditariis actionibus inter eosdem So an Obliegment oblieging a Debitor and his heirs Male succeeding in such an Estate and not all other heirs was found to burden the heir Male before the heir of Line or Executors July 22. 1662. Margaret Anderson contra Andersons So likewise an Obliegment to infeft a Party in an Annualrent out of Lands designed was found to affect the heir of Provision in these Lands without discussing the heir of Line Nicol ibid. Edmonstoun contra Edmonstoun This was also the opinion of the Lords though there was no decision in it February 19. 1611. Laird of Blair contra Fairlie And in these Cases the heir of Tailzie or Provision will have no Relief against the heir of Line or other nearer heirs of Blood who otherwise and also Executors must be discuss'd before heirs of Provision or Tailzie General Obliegments not relating to particular Lands do first affect the heirs of Line who are heirs general 2. The heirs of Conquest July 21. 1630. Fairlie contra Fairlie 3. Heirs Male must be discuss'd before heirs of Tailzie or Provision not being so near of Blood Hope de haered Dunbar contra Hay of Murkill the like must follow as to heirs of Marriages who are also heirs of Blood and must be discuss'd before other heirs of Provision or Tailzie who therefore are only lyable in the last place the rest being discuss'd unless they become oblieged to relieve the heir of Line November 22. 1665. Lawrence Scot contra Boswel of Auchinleck 18. But an heir of Tailzie was not found to represent the Defunct in Obligations contrary to the terms of the Tailzie as to which heirs of Tailzie are as Creditors and Strangers as when the security of a Sum was by way of Tailzie payable to the Creditor and the heirs of his Body which failing to a Person named his heirs and Assigneys whatsoever the Creditor being oblieged to do no Deed hurtful to the Tailzie and the Debitor oblieged not to pay without the consent of the Person named that Person was found to have Interest to obtain Declarator that the sum was unwarrantably payed by the Debitor without his consent or order of Law by consigning it to be imployed in the same terms and therefore the Debitor was ordained to make up the Security again as at first reserving to Creditors how far they could affect this Sum for the first Fiars Debt or whether the terms of the Tailzie would exclude the Fiars Debts or Deeds for his necessary use or only unnecessary and voluntary Deeds Feb. 3 1674 Drummond contra Drummond And in like manner a Father having granted two Bonds of Provision to his two Daughters payable to them and the heirs of their Body which failing to return to the Father and his heirs the one of them having died without heirs of her Body but having assigned her Bond to her Sister the Assignation was found ineffectual as being done on design to disappoint the Tailzie made by the Father of the return of the Provision in case the Daughters had no Heirs of their Bodies and so was done without any onerous Cause or just Consideration January 31. 1679. Jean Drummond contra Drummond of Rickertoun 19. And likewise heirs of Marriage are heirs of Provision and partly Creditors and therefore may quarrel Deeds fraudulent or meerly gratuitous done by the Defunct whom they represent in prejudice of their Provisions as was found in the forementioned Case of Isobel Baron observed by Craig who being heir of a Marriage to whom all Lands conquest during the Marriage were provided the Father having disponed a Tenement acquired during that Marriage to his eldest Son by another Marriage yet that heir of the Marriage did recover the same from that Son albeit the heir of the Marriage did represent her Father and yet not simply but according to the provision by the Contract of Marriage which being an onerous Contract uberrimae fidei the Father Contracter can do no Deed contrary thereto but upon an onerous Cause or just Consideration and therefore if he sell any thing falling within such Provisions the heir of Provision cannot quarrel that Stranger but is oblieged to fulfil to him but might quarrel the same if it were meerly gratuitous much more might heirs of a Marriage quarrel Deeds prejudicial to their Provision in favours of the Children of other Marriages without which the great trust of these Contracts would be eluded whereupon Parties rely and make Matches and give Tochers and therefore take Provisions to the heirs of the Marriage either of definite Sums or of all or a part that the Contracters have or shall acquire during the Marriage by which the whole Estates of Citizens are ordinarily conveyed or otherwise Contracts of Marriage bear particular Lands or Sums to be provided to the heirs or Bairns of the Marriage and also the conquest during the Marriage which clause of Conquest will reach only to what the Father had more at his Death then the time of the Contract and is ordinary both in the Contracts of Citizens and others which therefore should not be elusory but effectual according to the true meaning of the Parties which is not to bind up the Father that he cannot do Deeds for Causes onerous or rational Considerations but that he can do no other Deeds meerly gratuitous and arbitrary in prejudice of such Provisions for though by such Provisions when fulfilled he himself must become Fiar and so may dispone yet he is also Debitor and so cannot effectually dispone against the import and meaning of the Provision And therefore a Father by his Contract of Marriage having provided certain Tenements to himself and his future Spouse in Conjunct-fee and to the Bairns of the Marriage c. and the Wife having restricted her self to the half of the
it was free to the Heir as well to renounce when he pleased as to enter when he pleased July 10. 1631. Blair contra Broun but it is like the posterior Creditor hath been negligent otherwise that prae natura diligentia of pursuing and renouncing within the Year would have been accounted collusive and fraudulent and so would not prejudge the other Creditor doing diligence in the ordinary way General charges to enter Heir do evanish as incompleat diligences if the Party charged die before Litiscontestation or Sentence and though the fourty days be expired before the death of the Party charged yet the Charge useth not to be transferred or made use of against any subsequent Heir apparant but it is not consequent that if the Charger die before Litiscontestation or Sentence that the same should also become void because the Charger doth not necessitate the Party charged to enter or renounce in favours of the Chargers heirs but of himself And it was found that an Assigny might insist upon a Charge at the Cedents instance after the Cedents death though nothing followed thereupon during his life June 18. 1631. Prior of Archattan concra Captain of Clanronnald 23. A special Charge to enter Heir differeth from the general Charge in this That the general Charge is in lieu of the general Service for thereby the Creditor reacheth the Person of the apparant heir of his Debitor and his Estate or Goods established in his person unless he renounce and so the general Charge is the ground of Process and Decreet for Payment But thereby the Creditor cannot reach the Lands and Annualrents which are not as yet established in the Person of the apparant heir he not being specially served thereto or infeft therein And therefore that the Creditor may reach these he must use a special Charge which supplieth the special Service and Eutry This special Charge though it proceedeth upon Supplication without Citation yet it must be upon production of a Decreet at the Creditors instance not only cognitiònis causâ but for performance And it is competent in two Cases First upon the proper Debt of the Party to be charged For if the Debitor be unentered to some of his Predecessors and so their Rights not established in his Person in that Case the Creditor must charge his own Debitor specially to enter heir in the Rights competent to him by that Predecessor with certification if he enter not the Creditor shall have such Process and Execution against that Land and heretage to which he might enter as if he were actually entered therein whereupon Apprising doth proceed In this Case there is no necessity of an antecedent general Charge which only is used to the effect that the Debt may be established in the Person of the Debitors apparant heir passivè by a Decreet upon the general Charge The other Case is when the Debt is not the proper Debt of the Party charged but of some Predecessor to whom he may be heir in which Case the Debt must first be 〈◊〉 against him passive and then followeth the special Charge In this Case the special Charge cannot be till after Year and day because it presupposeth not only the Summons but also the Sentence upon the general Charge both which must be after Year and Day When the Debt is the proper Debt of the Party charged if the special Charge may not be at any time even within Year and Day or if it must be after the annus deliberandi This makes for the Negative That it needs not abide the Year of Deliberation because the intent of the Deliberation is not so much whether the Party charged will be heir as whether he will personally subject himself to the ground of that Charge For albeit he renounce not it will not make him lyable to any of the Defuncts Debts except it be by his fraud and collusion with one Creditor in prejudice of another And therefore seing he cannot deliberate whether he will be subject to his own Debt he ought not to have the benefite ofYear and Day before the special Charge be effectual Yet before the late Act preferring the diligence of the Defuncts Creditors to the heirs proper Creditors there was no reason to allow special Charges for the apparant heirs own Debt but more summar Execution than other Charges so to prefer the apparent heirs proper Creditors to be Heir The Act of Parliament which is the ground of the Charge to enter Heir and is only the rise of the special Charge insinuates an Exception if the heir be major But the custom of the Lords hath introduced the general Charge to constitute the Debt and allows both Charges against minors There is no necessity either of a general or special Charge as to real Actions which may proceed against apparant heirs as poynding of the Ground January 2. 1667. Oliphant contra Hamilton Neither in Declarators or Reductions 24. The remedy against both Charges to be heir is a Renounciation to be heir whereby the Renouncers Person and his proper Estate will not be lyable for his Predecessors Debt but only his Predecessors heretage This Renounciation useth to be offered by way of Exception in the Process upon the general Charge and if the Defender be not absent it is not ordinarily admitted by Suspension except in favour of Minors who though being apparant heirs they take a day to Renounce and fail therein yet they will be restored against the same by Suspension without Reduction January 25. 1628. Kennedy contra Mackdougal Spots Minors Nisbet contra Nisbet But if the Minority were controverse and not instantly verefied it must be by Reduction Spots Minors Mr. Thomas Craig Advocat contra Cockburn Renounciation to be Heir was admitted rebus integris though the Decreet and Charge were six years before July 20. 1626. Harvie contra Baron Yea it was admitted though there was an Adjudication and the Decreet supsended which was declared to stand and the apparant heirs Person and proper Estate were only freed Spots Restitution in integrim John Oliphant contra Mr. William Blackburn A Renounciation to be heir was not admitted with this quality Excepting to the Renouncer certain Lands whereinto he was appointed to be infeft by his Fathers Contract of Marriage and whereupon Inhibition was used before contracting of the Chargers Debt to the effect he might enter heir to those Lands January 23. 1627. Lady Ogilvy contra Lord Ogilvy But in the like Case Hope Inhibition Donald Thorntoun contra Bailzie June 15. 1615. and the like November 30. 1620. Adamson contra Hamiltoun the apparant heir was suffered to renounce to be heir to his Goodsire except as to those Lands which his Goodsire had disponed to his Father in his Contract of Marriage whereupon Inhibition was used which the Lords found a singular Title consistent with a Renounciation of the heretage ex titulo universali The Exception upon Renounciation to be heir is elided If the Defuncts Estate be burthened with the heirs
trafficking Burgesses and take themselves to a Country Life their heirs will have heirship moveable And therefore semel civis semper civis is not presumed Neither semel paerlatus semper praelatus for if a beneficed Person were deprived or demitted before the Death his heir would have no heirship moveable 10. The second Defense against Intromission with heirship moveable and which is also competent against Vitious Intromission is That the Defunct died Rebel and his Escheat was gifxted and declared before intenting of the Creditor's Pursuit June 10. 1663. Gordon of Lismoir contra Keith June 10. 1674. Lady Spenserfield contra Hamilton of Kilbrachmount December 22. 1674. Heirs of Seatoun of Blair contra Sr Alexander Seatoun And It is not necessary to alledge That the apparent heir had any Right or Tollerance from the Donatar For the Exception is equiparat to Executors confirmed against Vitious Intromission whereby Vitious Intromission is excluded albeit the Intromission was before another was confirmed Executor if the Confirmation was before intenting of the Creditor's Cause But it is no relevant Defense That the Defunct died Rebel and so had no moveables but that they were confiscat Neither was it sufficient that the Escheat was gifted not being also declared before the Creditor's Pursuit As was found in the said two first Cases 11. The third Defense is That the apparant Heir intrometted by a Gift to himself or to his behoofe or by a Right or Tollerance from a Donatar These being prior to the Creditor's Pursuit although posterior to his Intromission albeit not declared are relevant because the Donatar thereby is in possession and needs no Declarator Feb. 26. 1663. Cuthbirt of Drakies contra Monro of 〈◊〉 June 10. 1663. Gordon of Lismoir contra Keith July 4. 1674. Mr. William Innes contra George Wilson June 10. 1674. Lady Spenserfield contra Hamilton of Kilbrachmont Feb. 10. 1676. Grant contra Grant 12. The fourth Exception is When Moveables belonging to a Defunct remain in his House whereunto his apparant Heir hath Right by Infeftment wherein the Defunct had his Liferent or Tollerance if the Heir enter in possession of the House if at his entry he represent to any competent Judge that there are Moveables in or about the House belonging to the Defunct which he desires to be inventaried or that such as cannot be preserved may be sold that the price may be made forthcoming to all parties having interest if Inventary or Sale be made by warrant of that Judge the continuing of these Moveables in the House or the Sale of those which cannot be preserved will not infer Behaving as Heir Yet the making use of the things in the Inventary or the Sale of that which is not warranted yea the ommission out of the Inventary of Moveables of any considerable value was found to infer Behaviour January 25. 1632. Helen Scarlet contra John Paterson 13. The other ordinary member of Behaving as Heir is by Intromission with the Rents of Lands or Tiends whereunto the Defunct had Right by Infeftment or entering in possession of these Lands and Tiends unto which the apparent Heir would succeed which is the most direct Behaviour as Heir and is only competent against such persons as might be Heirs in that whereinto they immix themselves And so an Heir of line poslessing or intrometting with the Rents of Lands provided to Heirs male or to Heirs of Tailzie or Provision or the Intromission of these with the profits of Lands or Tiends befalling to Heirs of line will only infer Restitution or Reparation but will not infer a general passive Title making the partie lyable to all the Defunct's Debts 14. There are many Defenses which use to be proponed against this species of Behaviour As first it was an ordinary custom to shun this passive Title that the apparant Heir granted a Bond of purpose to adjudge the Defunct's Right upon the apparant Heirs Renounciation and then take Right to the Adjudication till the Lords by an Act of Sederunt Feb. 28. 1662. did declare that if apparant Heirs should in time coming take Right to any Appryzing or Adjudication of their Predecessors Rights for their own Debt and did 〈◊〉 thereby whether before or after expyring of the Legal they should be lyable as behaving as Heirs which hath always since been followed And therefore no Defense for such Rights will be sustained albeit it were a true Debt of the apparant Heirs and not a simulat Bond granted of designe to adjudge or apprise Neither is it a relevant Defense That the Lands or Teinds were appryzed or adjudged from the Defunct albeit Infeftment had followed thereupon if the heir apparant intromet without Right or Warrant from the Appryser or Adjudger within the Legal Feb. 21. 1663. Henrie Hamilton contra William Hamilton But it is a relevant Exception That the apparant heir's Intromission or possession was by Right from an Appryser or Adjudger though the Legal was not expired unless the Sum were fully satisfied by Intromission or otherways January 10. 1662. Barclay contra Laird of Cragievar The like though the apparant heir continued to possesse for some time after the Apprysing was satisfied by Intromission Feb. 26. 1663. Cuthbert of Drakies contra Monro of Foulis Yea Intromission with the Rents of the Defunct's Land by his apparant heir waselided by a Tollerance from a Donatar of Recognition albeit not declared till after his Intromission the apparant heir paying the single value of his Intromission July 17. 1666. Thomas Ogilvie contra Lord Gray But a Tollerance from Apprysers after their Intromission was not found relevant July 11. 1671. Sr. George Maxvell contra Maxvel Yet the apparant heir's Intromission was elided because the Defunct's Rights were improven though after the Intromission March 22. 1628. Roderick Farquhar contra Campbel of Kingingcluch And an apparant heir's Intromission was elided by a colourable Title though not valid whereby the heir of a Marriage being entered and infeft as heir to her Mother yet her Infeftment being reduced and her Father being found Feer in a dubious provision of Conjunct-fee the heir so served was not found liable as behaving as heir to her Father but only quoad valorem of her Intromission July 12. 1671. Adam Gairns contra 〈◊〉 Sandielands But it was not elided because the apparant heir past by his Father and was infeft as heir to his Good-sire though his Father was infeft that colourable Title was not sustained the apparant heir being in mala fide having the Evidents in his hands November 23. 1671. Rorieson contra 〈◊〉 Yet Behaving as heir was not inferred by the heir apparant's intrometting with the Rents of Lands which his predecessor had disponed in trust to a third party for the behoofe of the apparant heir and whereupon the Intrusted was infeft January 14. 1662. Nicol contra Home of Plandergest But Intromission by the apparant heir was elided by a Disposition by a Defunct to the apparant Heir's Son his Oye though without
would succeed at the time of the Disposition and so may seem to be immediat apparant Heir pro tempore for so a Disposition by one Brother to another or to a Brother's Son the Disponer for the time having no Children will not inferre this Title November 22. 1662. Lawrence Scot contra David Beswell of Auchinleck Nephew to umwhile Auchinleck December 22. 1674. Heirs of Seatoun of Blair contra Sir Alexander Seatoun The like though the Disponer was an old man the time of the Disposition and had little hope of Issue December 17. 1632. Lady Spenserfield contra Laird of Kilbrachmont The reason is because the Brother or Brother's Son is not alioqui successurus by the course of Law while the Brother's Children are in spe and therefore such are never called apparant Heirs neither is the presumption in them that the Defunct would in prejudice of his Creditors adventure simply to dispone to such while he had hope of Issue but all this holds in Oyes And it was so decided January 29. 1639. Lady Smeatoun contra Richardson of Smeatoun where an Infeftment was granted by the Good fire to the Oye reserving his Son 's Liferent And in the like Case the Father who was but Liferenter and his Oye Feer by the Grandfather's Disposition was found lucrative Successor February 23. 1637. Lightoun contra Laird of Kinaber But this Decision was stopped to be further heard 6. But here occurreth the Question If the Disposition be anterior to the Debt contracted but the Infeftment posterior to the said Debt quid juris The ground of Doubt is that though the Defender had a prior Disposition yet by the Infeftment only he was Successor seing Lands pass not by Dispositions but by Infeftments and therefore he was clearly Successor post contractum debitum and also ex causa lucrativa 2. If this were not the meaning the intent of the Law would be frustrate for it were easy to make Dispositions and to keep them up and in the mean time to contract Debts when the Creditors could not know the Debitor's condition and so contracted bonafide This Case was not decided but the like Case was formerly decided negativè that the Infeftment though posterior to the Debt did not inferre this Title being upon a Disposition anterior to the Debt February 23. 1637. Lightoun contra Laird of Kinaber The like was found where there was an Obligement in a Contract of Marriage to dispone Lands prior to the Debt contracted albeit both the Disposition and Infeftment were posterior to the Debt and did not bear expressly in implement of the Contract which was presumed seing no other Cause was showen July 27. 1678. Thomas Ferguson contra Lindsay of Wauchope For answer to the contrary Reasons the first is upon misapplication of the words post contractum debitum which are not to be referred to Successor thus successor post contractum debitum ex causa lucrativa but successor ex titulo lucrativo qui titulus est post contractum debitum So that if the lucrative Title be not after the Debt this Title takes no place As to the other reason the same inconveniency will be of Dispositions to Strangers which being keeped up Creditors may contract bona fide And yet Inhibition before Infeftment will not be effectual unless it preceed the Infeftment and the Disposition which will also be effectual against the apparant Heir But if there be fraud in keeping up such Dispositions which will be easilier presumed in the person of the apparant Heir than a Stranger it will be sufficient upon the common reason of fraud to reduce the Infeftment though the general passive Title be not inferred The like was found where there was an Obligement in a Contract of Marriage to dispone Lands prior to the Debt contracted albeit both the Disposition and Infeftment were posterior to the Debt and did not bear expressly in implement of the Contract which was presumed seing no other Cause was showen July 23. 1678. Thomas Ferguson contra Lindsay of Wauchope And lucrative Successor was not found inferred by the Infeftment of a Father to his apparant Heir after the Debt contracted seing there was an anterior Obligement in the apparant Heir's Contract of Marriage to grant the Infeftment and Inhibition thereupon Nicol. de haereditariis actionibus March 31. 1626. Ker contra Sterling 7. This Title can take no place first where the Party to whom the Right is granted is not alioqui successurus in that same Right because it cannot be praeceptio haereditatis where there can be no haereditas And so a Disposition to an heir of Tailzie of Lands not provided to that heir of Tailzie cannot inferre this Title though it may be reducible as without a Cause onerous Neither will a Disposition of tailzied Lands to an heir of line inferr this Title For in that case it cannot be praeceptio haereditatis albeit the Disposition will be reducible as without a Cause onerous But there is more reason that Rights acquired originally by Predecessors in name of their apparant heirs cannot infer this Title because the Predecessor himself never being Feer in that Right the apparant heir could not be his Heir therein Neither can such Rights be reducible by the Act of Parliament 1621. because the falling thereof will not make the Fee return to thePredecessor who never had it but the same can only be reached by a Declarator That it was acquired by that Predecessor's means after the Debt contracted and therefore ought to be affectable as if it were in the person of the Debitor or his heir which hath frequently been found relevant TITLE XXX Executorie Where of Testaments Codicills Legacies Relict's part Bairns part Dead 's part Confirmations and Office of Executorie 1. The Romans carfeulnesse to preserve the freedom of Testing 2. The ancient form of Testing amongst the Romans 3. The modern form of Roman solemn Testaments 4. Their nuncupative Testaments 5. Their military Testaments 6. Requisits for Roman Testaments 7. How far Sons in familia could Test. 8. Persons who could not Test. 9. Persons who could not be institute or substitute 10. Restriction of the freedom of Testing in favour of Children 11. The Legittimes ofChildren 12. The Falcidian portion 13. The difference of the Legittime and Falcidian 14. The Trebellianica 15. Fidiecomissa 16. Codicills 17. Institution of Heirs 18. Substitution 19. Substitutions vulgar and pupillar 20. Legacies 21. Legacies are void if the Legatar die before the Testator or if the Testament be void unless there be therein a codicillar Clause 22. The Kinds and Effects of conditional Legacies or Fideicommissa 23. Special Legacies 24. Conditions adjected to Legacies in Fideicommissa 25. The Inventary 26. Collation 27. Jus accrescendi 28. The Power of Testing with us may be restricted by Contract or Portion 29. It is restricted to Moveables and extends to no heritable Right 30. Wherein the Office of Executors consists 31. The nearest Agnats are Successors in Moveables to the
though she was not praeposita Negotiis but because she was Persona Illustris and her Husband out of the Countrey Hope Husband and Wife Mr. David Russel contra Earl of Argyle but a Wifes Bond for necessar Habiliments for her Body found to obliege her self and not her Husbands Executors and as to these she may contract Had. July 6. 1610. Eustacius Wise contra Lady Hallyrudhouse this must be understood where the Wife has an Aliment constitute by her Husband or other Right exempt from his Jus Mariti And it was so lately found in the case of Adam Garrns Merchant contra Elizabeth Arthur December 19. 1667. February 23. 1672. John Neilson contra Arthur But a Wifes account of Furniture to her Person not being great found valide against her Husband being subscribed by the Wife though she was minor being Persona Illustris February 20. 1667. Andrew Littlejohn contra Duke and Dutchess of Munmouth This Priviledge of Wives was extended to Obligations or Dispositions made by the Wife though before compleating of the Marriage being after Contract and Proclamation whereupon Marriage followed January 29. 1633. 〈◊〉 contra Brown The like specially where the Proclamation was not only at the Husbands Paroch Church but the Wifes July 8. 1623 Stewart contra Aitkin The like of a Disposition in favours of the Wifes Children after their Contract and one Proclamation July 5. 1611. Fletcher in Dundee contra Brown Yet Wives Obligations relating to their Delinquence are not void but only such as relate to their Contracting So a Wife was found oblieged to fulfil an Act of a Kirk Session under a Penalty that she should forbear an other mans company which was found not to affect her Husbands Goods but her own Hope Husband and Wife John Bell contra Executors of James Hogg and the Kirk Session of St. Cuthberts Here also are excepted Obliegements relating to Dispositions of Lands Annualrents or Liferents of which hereafter 13. As to the Husband and Wifes Interest in their Goods by our Custome without any voluntar Contract there arises betwixt them a communion of all Moveables except the Habiliments and Ornaments of the Wifes Body which though they be superfluous and the Husband insolvent are not Arrestable for his Debts the Husband hath the full and sole administration of all moveable Goods belonging or accressing to the Wife during the Marriage and the Rents and Profits of Heretable Rights as being moveable And therefore an Heretable Bond found to belong to the Husband Jure mariti because he was married before the Term of Whitsonday at which time it was payable June 15. 1627. Nicolson contra Lyell and a sum was found to belong to the Executors of the first Husband though the Term of Payment was after his Decease and not to the Wife or her second Husband Also a Legacy left to a Wife was found to belong to her Husband Hope Legacies Elizabeth Brown contra 〈◊〉 Likewise a Husband found to have right to a Bond blank in the Creditors name which the Wife during the Marriage put in the hands of a third Party who filled up his own name therein though the Husband and Wife were voluntarly separate February 11. 1634. Drummond contra Captain Rollo except Aliments duely and competently provided for the Wife which are not Arrestable for the Husbands Debt November 29. 1622. Thomas Edmonstoun contra Christian Kirkaldie and Alexander Barclay The like of an Aliment modified by Decreet Arbitral betwixt the Husband and a third Party though the cause thereof was founded upon the Husbands Right March 27. 1627. Westnisbit contra Morison yea the Husband himself found to have no access to a Sum provided to a Wife by her Father for her Aliment July 4. 1637. Tennant contra 〈◊〉 This communion of Goods by our Custome extendeth not to the Wifes Rights Heretable as Lands Annualrents Heretable Bonds nor to Liferents for as to these the Wife may obliege her self personally in Clauses relative to such Rights as Clauses to Infeft Clauses of Warrandioe and Clauses of Requisition of Sums for which her Lands were Wodset by her if the Wife be first and principally bound with consent of her Huaband but where the Wife and Husband were bound for Infeftment in Lands belonging to the Wife and both bound in the Requisition yet thereby the Wife was not found oblieged either for granting the Infeftment or in the Requisition because it appeared that the Money was not borrowed for the Wifes use December 19. 1626. Mathie contra Sibbald other ways such Obliegements are effectual against the Wife The like Hope Annualrent Agnes 〈◊〉 contra James 〈◊〉 where a Wife was found lyable to pay an Annualrent disponed by her and her Husband out of her 〈◊〉 Fee-Lands even during the time they were in Ward The like of an Annualrent disponed by a Wife and her Husband for which both were personally oblieged in respect she lifted the Rents of the Lands out of which it was to be uplifted Spots Husband and Wife Walter 〈◊〉 contra Margaret Chisholm The like of a Clause of Requisition in a Contract of Wodset granted by the Wife upon her Lands stante matrimonia Hope Husband and Wife Agnes Gordon contra Elizabeth Gordon And this is the difference betwixt these and other Personal Obliegements of the Wife stante matrimonio which even though the Husband consent are 〈◊〉 and obliege her not yea a Renunciation of a Tenement by a Wife without consent of her Husband being absent though he ratified it at his return was found null Spots Husband and Wife Helen Melvil contra So that the Husbands Right Jure Mariti to the Rents and Annualrents of the Wifes Rights which are not Alimentary cannot be evacuate without the Husbands consent though the Wife may dispose of the Right it self to take effect after the dissolution of the Marriage In Heretable Rights of Wives Bonds bearing Annualrent though without a clause of Infeftment are comprehended for these remain Heretable 〈◊〉 〈◊〉 relictum by the Act of Parliament 1661. cap. 32. And therefore a provision by a Father to his Daughter bearing Annualrent five per cent found not to fall under the Husbands 〈◊〉 Mariti June 28. 1665. James 〈◊〉 against 〈◊〉 Edgar July 4. 1676. John 〈◊〉 contra Bruce The Marriage without any Contract is a legal Assignation to the Rents and Profits of the Wifes Lands and other Heretable Rights during the Marriage so that without his consent the Wife cannot alter the condition thereof in prejudice of his Right during the Marriage Jus Mariti is so effectual as to the moveable Goods of the Wife that though a Life-renter in her second Contract of Marriage reserved a part of her Life-rent Lands to be solely at her own disposel and that the Husband in the same Contract of Marriage renounced his Jus Mariti thereanent yet that Renunciation was found to be his Jur. Mariti and so the profits of her Life-rent were affected by his Creditors it not being constitute
the Minors deed found void notwithstanding December 19. 1632. Maxwel contra Earl of Nithisdail but this was not extended to necessar Furnishing of Cloathes taken on without consent of Curatours which was sustained by reply February 5. 1631. John Inglis contra Executours of John Sharp 34. The Civil Law seems not to extend the consent of Curators as necessary to concur with the Minor making his latter Will but only to deeds among the living because Law hath rejected all ties and hinderances of full Liberty in Testaments of Defuncts in the disposal of their Goods and therefore if a Minor having Curators do in his Testament say quaestionem Curatoribus meis 〈◊〉 faciat eam nam ipse tractavi in that case Curatours are lyable for Restitution of what they have of the Minors Goods by Fraud but not for a compleat Diligence l. 20. § 1. ff de liberatione legata And by our Custome Minors having Curatours may Test without their consent and therefore a Minor making his Curator his Executour and universal Legatar though the Minor was with the Curator when he Tested and Died shortly after and his nearest Relations were not acquainted whom he had named in a former Testament it was sustained here no threats nor importunity was alledged November 30. 1680. Stevinson contra Allans There are other two Priviledges of Minors which cannot be so conveniently spoken to as in this place the one is that Minors are restored against Deeds done by them in their Minority to their Enorme Lesion The other is Minor non tenetur placitare super haereditate Paterna As to the first Minority and Lesion are the ordinary ground of Reduction but because they are facti and abide Probation they are not receivable by exception if he who pursues the Minor can instantly instruct his Pursuit but if he take a Term to prove the Minor may take the same Term to prove his Minority which doth not acknowledge the Libel or free the Pursuer from Probation thereof Or if the Minoritie be instantly verified as sometimes it is by sight of the Minors Person There is no difference as to the Restitution of Minors though the Deed be done with consent of Curators nor did it exclude a Minor because his pretended Curators had received the Money in question and so were liable to the Minor for misimploying it as behaving themselves as Curatours upon pretence that his Lesion could not be known till they were discust they not being in this Process July 2. 1667. Lord Blantyre contra Walkinshaw But this Remeid is not competent for every small Lesion but it must be Enorm which is in Arbitrio Judicis Neither is a Minor restored against Lesion which falls not by Levitie but by Accident as by Ship-wrack the Minor being a Trading Merchant Hope de Minoribus William Edgar contra Executours of Edward Edgar neither because he was bound conjunctly and severally for ware with another Merchant who was in society with him in Trading June 20. 1678. George Galbraith contra Patrick Lesly because Trading Merchants and others exercising Trade requiring peculiar skill capacity and understanding are held rather to design to deceive then to be deceived as was found in the case of a Nottar Publick July 14. 1636. Gardner contra Chalmers Neither was a Minor restored upon his judicial Confession upon Oath upon point of Fact and swearing never to come in the contrair November 28. 1626. Mr. Thomas Hope and Mr. Thomas Nicolson contra Mr. James Nicolson Neither was a Minor restored against his Promise upon Oath to quite twentie Chalder of Victual provided to him by his Contract of Marriage as not lesed by keeping his Oath which is conform to the Authentick Sacramenta puberum November 1626. Sir Robert Hepburn contra Sir John Scatoun And it was found relevant against Restitution of a Minor of a Bond granted for a Debt of his Fathers whom he Represented not that he swore to perform the same February 10. 1672. Mr. George Wauch contra Bailzie of Dunraget But a Minor hath not the priviledge to reduce a Disposition of Land without Authority of a Judge as in the case of Pupils unless he also alledge Lesion February 2. 1630. Sir John Hamiltoun contra John Sharp The like though the Minor had no Curatours December 13. 1666. Janet 〈◊〉 contra Stevenson Neither is Restitution competent unless Reduction be intented within the age of twenty five compleat for with us Majority comes at the age of twentie one compleat and there are four years allowed to Minors to intent Reductions which therefore are called Anni utiles Nicolson de Minoribus James Goodlet contra Doctor Austine and others Laird of Craigie contra Dunbar A Minor was restored against his Contract of Marriage wherein he was oblieged to Infeft his first born Son in Fee of his whole Estate which was very considerable having gotten but ten thousand Merks of Tocher March 7. 1623. Laird of Barganie contra his Son The like where a Minor getting but a thousand Merks of Tocher provided five thousand Merks to his Wifes Father in case of no Succession but not restored against that part of his Contract providing all his Means acquired and to be acquired in Liserent to his Wife June 4. 1632. Alexanderi Donaldson contra And a Minor Woman was restored against the Exorbitancies of her Contract of Marriage November 22. 1674. Margaret Mcgill contra Riven of Gairn but here she was only restored to a suitable Liferent but not against that provision in her Contract providing her Lands and Sums to the Heirs of the Marriage 〈◊〉 failzieing to the Mans Heirs The like as to the Heirs of a Woman who had Land worth twelve hundred Merks yearly the Husband being of a more honourable Birth Nicolson de Minoribus Slemen contra Ker. The like where the Wife Disponed her Lands to her Husband whose means were altogether unanswerable Spots Husband Fleming contra Mr. Robert Hog Minors are also restored against Judicial Acts to their Lesion as against a Decreet of Exoneration of his Tutors with concourse of his Curatours before the Lords in foro contradictorio December 1. 1638. William Stuart contra Robert Stuart Hope universal and lucrative Successour Knows contra Knows and Watson and against a Defence proponed by an Advocat without special mandat which did homologat a Deed in Minority February 14. 1677. Duke and Dutchess of Bucleuch contra Earl of Tweeadale In which case it was found that accepting an illiquid Right for a Liquid was no Enorm Lesion inferring Restitution But Restitution is excluded Si monor se majorem dixerit Nam deceptis non decipientibus jura subveniunt as where the Minors Bond bore expresly that he was Major and that the Creditor knew not he was Minor by his Aspect or otherways nor did fraudfully induce him to insert his Majority February 23. 1665. Kennedy of Achtifardel contra Weir It is also eleided if it be proven that the Deed in question was profitable as
in gratification or preference of one Creditor to another who hath done more timeous Diligence by Inhibition Horning Arrestment Compryzing or other lawful mean duly to affect the Dyvers Lands or Goods or Price thereof the meaning is that when these Diligences are not compleat but Inchoat and the Creditor is in cursu diligentiae the Debitor or his Trustee cannot prevent the course of that Diligence by preferring another Creditor doing less Diligence For if the meaning were of Appryzing perfected by Infeftment or Arrestment by Decreet to make forthcoming there needed not this remeid for these Diligences being compleat would exclude any other posterior Disposition or Diligence Yea Inhibition if the Executions were compleat and Registrat would of it self be effectual to Reduce ex capite inhibitionis But if these Diligences be only Inchoat as if the Inhibitor had begun his Execution but had not compleated it at all the Mercat Crosses requisite any Disposition Infeftment or other real Right made to another Creditor medio tempore less vigilent is anullable thereby December 15. 1665. and February 27. 1667. Mr. John Eleis contra Keith and Wishart Or if Lands be Denunced to be Appryzed or Summonds of Adjudication be execute Rights thereafter made to other Creditors doing less Diligence in cursu diligentiae with the first are thereby reducible although done before the Decreet of Apprysing or Infeftment But Inhibition Apprysing or Adjudication Inchoat have no effect as to Moveable Rights not being as the Statute requires Diligences duely to affect that subject Neither doth the laying on of Arrestment affect Heretable Rights and so cannot hinder the Debitor to Dispone these to lawful Creditors doing less Diligence But Horning is a Diligence relating both to the Moveable Estate by single Escheat and the Heretable Estate by Liferent Escheat and therefore after the Charge of Horning it is effectual February 12. 1675. Veach contra the Executors of Ker and Pallat. July 18. 1677. Murray of Kilor contra Drummond of Machany January 25. 1681. Bathgate contra Bogil It hath not been yet cleared by practice if insisting in Processes for constituting Debts be comprehended under other lawful means duely to affect the Debitors Lands or Goods But this Statute will not 〈◊〉 Dispositions or other Rights made in favours of these persons who have used the most effectual Diligence duely to affect the Subject because this prevents Expences prejudicial both to the Debitor and Con-creditors and is not contrary this Statute Neither will Dispositions or other Rights for equivalent Causes Onerous made to Creditors be anulled if not done in cursu diligentiae but if the Con-creditor insist not in his Inchoat Dillgence till it be compleat he hath not the benefit of the Statute vigilantibus non dormientibus jura subveniunt and therefore a Disposition was not Reduced at the Instance of a Creditor who had Appryzed before the Disposition but for several years had neither obtained Infeftment nor charged the Superior February 8. 1681. John Neilson contra Ross of Pittendreich But how long this negligence must be to exclude it must necessarily be in arbitrio judicis But this Clause of the Statute will not anull Dispositions made to buyers for a just price payed where the price was not an anterior Debt due to the buyer for there there is not preference of one Creditor to another but a lawful Bargain in Commerce where the buyer neither doth nor can know Inchoat Diligences but only such as are compleat and Registrat except in the case where the Subject becomes Litigious which is not to be extended to every diligence in prejudice of Puchasers of Lands whereby Rights would become very uncertain especially when Irredeemable Rights are purchased but against the purchasing of Bonds Annualrents or Wodsets it may be more extended as in the former case February 8. 1681. Neilson contra Ross of Pittendreich This Defence was also sustained that the Disposition was for a price payed and for no anterior Debt And in the former case Bathgate contra Bogil the Disposition after Horning though it was in the terms of sale was only anulled because it was granted for anterior Debts due to the buyer Fraud is no vitium reale affecting the Subject but only the committer of the Fraud and these who are partakers of the Fraud as is clear by this Statute bearing an exception of lawful Purchasers not partakers of the Fraud But where the Right purchased hath evidence of Fraud in it self the Purchaser though for a just price payed is thereby partaker of the Fraud and so may be excluded as if the Right acquired bore for love and favour or if it be betwixt conjunct persons the Purchaser must instruct the Cause Onerous as when the Right purchased was from one Brother to another December 28. 1679. Gordoun of 〈◊〉 contra Ferguson of Keroch January 24. 1680. Andrew Crawford contra James Ker. Eightly Though the manner of Probation by this Statute be by the Oath of the Purchaser or Write Yet the Narrative of such Rights being betwixt conjunct Persons albeit it bear Causes Onerous must be otherways astructed wherein Witnesses and other Exidences will be received which is not only sustained As to Dispositions by Parents to Children but by Brothers and Sisters to Brothers or to Good-Brothers and Good-Sisters yet not to two persons Marrying two Sisters or two Brothers where there is but affinitas affinitatis It hath also been extended to Uncle and Nephew where other Circumstances concurred January 18. 1678. Kinloch of Gourdy contra Mr. George Blair December 18. 1673. Creditors of Tarsapy contra Laird of Kinsans The like effect is in Rights acquired in name of Children in the Family who have no visible Estate for these are held fraudulent and may be affected for the Fathers Debt as hath been frequently decided This Case only remains whither a notour Bankrupt may prefer one Creditor to another though neither have done Diligence The Tenor of the Statute favours the Negative annulling Alienations by Bankrupts not being for an equivalent and necessar Cause and therefore it is not safe to purchase from such even by buying 16. Spuilzie is the taking away of Moveables without consent of the Owner or Order of Law oblieging to Restitution of the things taken away with all possible profits or Reparation thereof according to the estimation of the Injured made by his juramentum in litem Thus things Stollen or Robbed though they might be Criminally pursued as Thest or Robbery Yet may they be civily pursued as a Spuilzie Spuilzie inurit labem realem whereby the Goods may be recovered from Purchasers bona fide November 21. 1677. James Key contra Leonard Carnagy and others The profit of things Spuilzied are called violent profits because they are not such ordinary profits as the Persons Spuilzied used to make of the Goods but such as he might have made thereof Where the things Spuilzied have profits as Horse Oxen or other Cattel and Instruments or other
is indirectly more then the ordinary Annualrent and so falls under the Act 1597. and on the other that improper Wodsetts are there exprest and proper Wodsetts seem ex proposito omitted and in proper Wodsetts all hazard lyes upon the Wodsetter Of setting the Land of dead poor and waste we shall leave this to every mans private judgement till publick judgement cast the ballance but all proper Wodsetts before 1661. are restricted to the Annualrent by the Act of Parliament 1661. cap. 62. If upon offer of security the Wodsetter will not quite possession he is countable from the offer as hath been often decided since that Act. There uses also in Wodsetts and Reversions to be included a condition to set the Wodsett Lands for such time to begin after redemption which if it be far within the true worth is Usurary and is declared so Parl. 1449. cap. 19. That Lands provided to be set for Tacks not near the true worth the same shall not be keeped yet such a Tack was sustained seing the Wodsetter had not his full Annualrent by reason of a Liferent reserved in the Wodsett and the Wodsetter was the Constituents Brother and so like to be for his Portion natural whereof the Tack was a part June 21. 1662. Laird of Polwart contra Home but in other cases such a Tack was found null by the said Act but not by the Act betwixt Debitor and Creditor February 15. 1666. my Lord Ley contra Porteous 75. This much for Usury of Annualrent by Contract or Pactions it is also due of the Law and by the obligation of recompense and reparation and in the Civil Law in all Contracts bonae fidei it is due ex mora by the delay of the Debitor which is understood after he be required for the same or that the Term is past nam dies interpellat pro homine and in other Contracts by litiscontestation but our custom hath little use of that distinction neither followeth it that rule but where Annualrent is not agreed first ordinarly it is not due till Horning be used against the Debitor and that by a special Statute 1621. cap. 20. Yea though the Horning was not registrat and so null as to Escheat it was found valid as to the Annualrent July 16. 1673. Isabel Ker contra Parochioners of Moramside but it was found not competent by way of special Charge in the Suspension of the principal Debt but ordinarly by ordinary action July 2. 1629. Purveyance contra Laird of Craigie where Dury his opinion is That if the Charger had raised Horning upon the Act of Parliament it would have been sustained summarly and is now ordinarly sustained summarly by a special Charge when the sum is charged for or suspended but it being once due it not only continueth during the life of the person denounced but still thereafter till payment July 4. 1642. Huntley contra Heirs of Mr. John Manson 2. Annualrent provided by a Bond for one year though it express not for all years thereafter yet continueth due till payment Decemb. 2. 1628. Blair contra Ramsay The like where one Term was only in the Bond Spots usury Keith contra Bruce and where Annualrent was promised for a time by a Letter it was found still due till payment January 13. 1669. George Home contra Seaton of Menzies 3. It is due by use of payment only without express paction March 4. 1628. Forrester contra Clerk 4. Annualrent is ordained to be due to Cautioners by their Principals for sums payed by them as Cautioners by the Clause of relief as being damange and interest though the Bond bear no Annualrent by Statute of Session Decemb. 21. 1620. Hope usury Torry contra Dowhill Dec. 4. 1629. 〈◊〉 contra Johnstoun where the Clause of relief bare only to relieve the Cautioners of his Caution and not of all damage The like though there was no further distress against the Cautioner but registration January 24. 1627. I. Wauchton contra L. of Innerweek and this was extended to co-principals having Clause of mutual relief of cost skaith c. Novemb. 15. 1627. Black of Largo contra William Dick. 5. Annualrent is due without paction by Tutors and Curators to their Pupils of which formerly in the Obligations betwixt them 6. Annualrent was found due without paction by an Heir-male for the Portion of the Heir-female though not required for many years and that still from the term of payment July 5. 1610. Calhound contra L. of Luss. The like by a husband who was oblieged to his wife for the Annualrent of the Tocher payable by the Father though the Tocher was never payed Hope Husband and Wife Baird contra Gordoun Spots Usury Mr. John Skeen contra Mr. John Hart. 7. Annualrent was found due for the price of Lands possest by the buyer without paction Hope Usury Mr. James Stirling contra Mr. David Ogilvy February 17. 1624. Dury of that ilk contra Lord Ramsay the like though the delay of payment was not the Debitors sault November 14. 1628. Cuming contra Cuming Spots Usury Home contra Laird Rentoun Annualrent was not found due without paction for a sum lent to an old man on condition that if he died without Heirs the Creditor should become the Debitors Heir and yet he having Heirs Annualrent was not found due Decemb. 11. 1662. George Logie contra Logie But the Lords do sometimes allow Annualrent or an equivalent expense among Merchants and they did so in a Provision by a Father to his natural Daughter payable at her Marriage which was found so favourable not to hasten her to marry that Annualrent was allowed her seing the condition was in her power June 25. 1664. Margaret Inglis contra Thomas Inglis The Romans allowed Annual till it equalled the Principal but no further but our custom hath no such restriction Yet we restrict the English double Bonds to the single Sums and Annualrent thereof but no further then till it be equivalent to the Principal seing by the tenor of such Bonds it appears the meaning of the Parties that no more should be demanded in any case January 2. 1679. Sir Alexander Frazer and Leyes Burnet contra Sir James Hamiltoun Annual upon Annual is condemned of all when it is comprehended in the first paction but it is ordinar by posterior Contracts to accumulate Annualrents and make it a Principal and so both that which was first Principal and that which was once Annual bears Annual so also Annual by vertue of the Act of Parliament if Decreet follow thereupon and Horning will bear Annual seing there is no limitation but this will not be extended to Annuals in time coming after the Horning and last Annualrent payed by a Cautioner by the said Statute of Session will bear Annual because to him it is a Principals Annualrent was also found due without paction for money expended by the Custom of Bourdeaux Decemb. 8. 1677. Antonieta Peron contra Morison To return to Location all things may
are designed there is no relief by other kirk-Kirk-lands except these who had Feus of other parts of the same Gleib seing by the foresaids Statutes the Feuars of old Manses or Gleibs are to suffer Designation or to purchase new Manses and Gleibs so that these old Manses and Gleibs do not infer relief This relief is not debitum fundi affecting singular successors as was found June 1675 Schaw contra Hamiltoun of Munckland But when the Designation is of Temporal Lands the whole Heretors of Temporal Lands are to contribute for a recompense thereof proportionally Par 1649 cap 131 revived Par 1663 Session 3. cap. 20. Gleibs are Teind-free Parl. 1578. cap. 62. The like where they are Arable or Grass Par. 121. cap. 10. And a Gleib was found Teind-free though lately mortified voluntarly without Designation or Process and though not mortified to a Paroch Church but a Chappel seing Divine Worship was accustomed to be therein June 9. 1676. Alexander Burnet contra William Gibb 41. There is another division of Infeftments into these which are granted to one Person and his Heirs and to more Persons and their Heirs which are of diverse sorts sometimes as Conjunct-infeftments and sometimes conceived in favours of Fathers and after their decease to Children or relations therein nominat Conjunct-infeftments are called Conjunct-Fees whereby the Fee is disponed joyntly to more persons and their Heirs which may be to three or more persons who by the Infeftment become all Fiars joyntly and equally whence there ariseth a Communion by which they do possess the Fee pro indiviso until division thereof be made which doth not comprehend an Infeftment to an Incorporation as to a Town or Colledge or to the use of the Poor who do not thereby become joynt Fiars but have only a share of the benefite according to the distribution appointed These Infeftments are not conceived to Heirs seing Incorporations are perpetual and die not neither doth the publick use fail therefore such Infeftments require no renovation Superiours will not easily be induced to accept Resignations from their Vassals in favours of Incorporations and publick uses by which all the Casualities of their Superiority cease or to grant Confirmations thereof having the same effect Nor can they be compelled to grant such Infeftments upon the Vassals Bonds granted of purpose that Adjudication may be used thereupon that thereby the Superiour may be compelled to receive the Incorporation yea though without design an Incorporation should become Creditor to a Vassal in a debt truly borrowed either from the Incorporation or their Cedent The question is whether an Adjudication thereupon might force the Superiour to receive the Incorporation for a years Rent Craigs opinion is in the Negative and I have not heard such a case come to be debated And though Custom hath oblieged Superiours to receive man and Wife in Conjunct-Fee which abate their Casualities during the life of two persons the consequence would not be good to reach to an Incorporation that never dies though the Act of Parliament introducing Appryzings and Adjudications be generally in favours of all Creditors It were more just that Incorporations should pitch upon a person and assign their debt to him expresly to the effect that the Lands might be adjudged to him and his Heirs for the use and behove of the Incorporation or such other uses as were designed which would be effectual against all singular Successors especially if the Trust were exprest in the Seasine but the Superiour would have all his Casualities by the death neglect or delinquence of the Trustee and his Heirs I shall not pre-determine my self or others in the case but leave it to publick determination Conjunct-Fees by the Custom of England are always so understood that the survivers have the whole benefite so long as any of them are alive but we do only extend this survivancy to Conjunct-infeftments to Husband and Wife which bears ordinarly to the longest liver But though that were not exprest it would be understood as implyed and generally it resolves in the Wife but as a Liferent and the Husband is understood to be Fiar unless it be evident that the Right was originally the Wifes and a Liferent only designed for the Husband and therefore if no Heirs be exprest or only generally their Heirs the Husbands Heir is understood in Heretable Rights Nam potior est conditio masculi and the Wife is only Liferenter but with greater power then by a separate Liferent June 24. 1663. Elizabeth Scrymzour contra Murrays And a Wife having charged upon a Bond granted to her Husband and her and the longest liver was found not to have right to uplift the sum or to insist therefore without concurse of the mans Heir or he being called that if the sum were insecure it might be consigned to be re-imployed to the wife in Liferent and to the Heir in Fee December 10. 1671. Katharine Ross contra Laird of Hunthill Yea a Clause in a Bond bearing a sum borrowed from a Husband and wife and payable to the longest liver of them two in Coniunct-fee and to the Heirs betwixt them and their Assigneys whilks failing to the Heirs and Assigneys of the last liver was found to constitute the Husband Fiar and the Wife Liferenter albeit she was last liver whereby her Heirs of Line failing Heirs of the Marriage became Heirs of provision to the Husband and lyable to his debts January 29. 1669. Graham contra Park and Gerdan January 23. 1668. John Justice contra Mary Barcley his Spouse And a Clause in a Contract of Marriage oblieging the Husband to take the Conquest to him and his future Spouse and the Heirs betwixt them whilks failing the Heirs of the Mans Body whilks failing the Wifes Heirs whatsomever was found not to constitute the Wife Fiar but Liferenter and the Husband Fiar whereby failing Heirs of the Marriage and of the Mans Body the Wifes Heirs of Line were Heirs of provision to the Man February 20. 1667. Cranstoun contra Wilkison For by this Clause of Conquest it is evident the means were to come by the Man yet an Obliegement by a Man bearing that whatsoever Lands or sums of Money he should purchase during the life of him and his future Spouse their present debts being first payed that the wife should be secured therein in Conjunct-fee and in case of no Issue or Children the one half thereof to be disponed as the Wife should think fit was found to make the Conquest divide betwixt the Heirs of the Man and the Wife and that her power to dispone the half was not a personal Faculty but did make her Fiar in that half and took off the presumption of the preference of the Husband seing no mention was made of the Heirs of either party June 27. and 28. 1676. Earl of Dumfermling contra Earl of Callender Conjunct-Fees to Husband and Wife and the Heirs of the Marriage do imply a restriction upon the Man not to
are not wakened every five years for such prescrive in ten years by the Act 9. Par. 1669. The exceptions of removing at the instance of the Master of the ground are very frequent and various for it is ordinarly proponed and sustained that the Defenders are Tennents by payment of Mail and Duty to a third party who is not warned nor called neither are they put to dispute their Masters Right to be valide which holdeth whether his Right be an Infeftment Liferent-right or Tack and though the Tennent hath been put to condescend what the Right is and that in specie it is a valide Right though he needs not dispute the particular defects of it nor the competition of it with any other Right That hath been done that the pursuer might know how to quarrel their Masters Right but I have never observed that Litiscontestation has been made or a Term assigned to Tennents to instruct their Masters Right therefore this defence is but dilatory and should not be sustained unless instantly verified by Tacks or Discharges from the alledged Master which would be repelled if the Tennents have interverted the pursuer or his authors Possession or if the pursuer were singular Successor not presumed to know any interest but of the Possessors if the Tennent produce his Masters Seasine with his Tack or Discharge it would instruct this Dilator which is sufficient upon the not calling the Tennents Master for his not being warned is proper for himself to alledge and the partie will in the same Process get warrand to cite that Master who must defend himself upon his own Rights and therefore this defence was sustained to Tennents though they condescended upon no other Right to their Master but tacite Relocation December 2. 1628. Mr. Walter Whitefoord contra Laird Johnstoun It hath also been sometimes sustained that the defenders were Tennents by payment of mail and duty to an Appryzer though not Infeft Hope hic Crawfoord contra Brown This exception is also elided by this reply that the defenders had acknowledged the pursuer by payment of Mail and Duty Nicol hic Lady Evandale contra her Tennents It is also elided by alledging that the defenders Masters Right was reduced at the pursuers instance December 12. 1622. Spading contra Fleming The like where his right was reduced at the instance of the pursuers author Spots hic Maxwel contra Tennents of Glassock Earl of Nithisdale contra his Tennents The exceptions against removing upon the defenders own right are either in respect of his right to the Land in question or to the other Lands brooked by him pro indiviso with it For the first there are as many such defences as there are rights competent for defending possession and they are either founded upon the benefite of a possessory judgement which how conpetent may be seen at large Title Infeftment 13. § 82. which needs not to be repeated Or if that be not competent the defender must found himself upon the point of right which ordinarly infers a competition of rights But in either case the defence will not be sustained upon any right if the possession was not attained there upon bat upon the pursuers right which Possession must be restored and the defender left to his action upon the others right as accords as if after redemption of a temporary right whereby the defender entered in Possession he should defend upon another right which will not be sustained in this possessory judgdement against him or his Successor from whom he had the Possession November 22. 1677. Sir Archibald Stuart of Castlemilk contra Duke of Hamiltoun The exception pro indiviso is very pregnant and taketh not only place in solemn removings but in the Action to find Caution for Mails and Duties or to remove though the Excipient had taken Tacks from the Pursuer December 6. 1623. 〈…〉 contra Carmichael Yet it was not found relevant to stop removing from the pursuers part of a Coal-heugh in Lands undevided because the Coals are divisible by measure as they are raised out of the Coal-pot Spots removing Hugh Somervel contra Dickson Neither was it found sufficient to maintain a Relict in possession of a House which could not be divided whereof she had a third part and possest the other two thirâ—s pro indiviso but the Fiar having the two thirds was to be preferred to the Poâ—â—ession paying her the third of the Mail upon condition that if he seâ— the Tenement she should be preferred giving as much Mail as another January 26. 1665. Legan contra Galbraith The last exception against removing is obedience by voluntary removing conform to the warning and leaving the Land void and red at the Term without necessity of a renunciation in write March 2. 1637. Keith contra Simpson The like the defender finding Caution to desist from the Possession Nicol. de migrando Wallace contra Mitchel But the alledgeance of obedience was not found relevant upon an exception bearing that the Land was left void and red at the Term seing that it bore not that the Possession was offered to the Charger in respect that at the time of his removing another party entered in his Vice January penult 1624. Greenlaw contra Adamson But the obedience must be full according to the warning by the defenders removing himself his Family Sub-tennents and Cottars Goods and Gear So that the pursuer may enter in Possession and therefore Decreet would be obtained against the principal Tacks-man and the Letters still put to execution against him till all these be removed and if the pursuer please he may pursue them to remove without other warning then what was made to the principal Tacks-man So it was sustained against a Son upon a warning against his Father even after his Fathers death January 26. 1630. Hoom contra Hoom. As to the last point concerning the effects of Decreets of Removing it is not only the attaining Possession of the Land it self but sometimes also the Corns growing thereupon as being a part thereof being a Possession violent Hope Spuilzie John Elliot contra Lord Balcleugh Yea of the Hay of that Cropt though separate and Stacked by the person removed Hope Spuilzie Sir James Balmuire contra Williamson But the main effect is the obtaining the violent profites of the Land until the possessors obedience and that both against these who are warned and against these who succeed in the vice of warned or removed Tennents 44. Violent profites are so called because they are such profites as are due by and for violent Possessioa whatsoever way it be by warning and removing ejection intrusion or succeeding in the Vice and they are opposite to ordinary profites which were due by tacit Relocation or were formerly accustomed to be payed Violent profites are pursued for by a several Action after the Decreet of removing is obtained Wherein the Decreet of removing is both a sufficient Title and probation of the violent Possession against the parties
Campbel 18. Recognition is not inferred by an alienation to the Vassals appearand heir by the ordinary course of Law as by a father to his eldest son because the fee will befall to the son after the fathers Deceass Neither was it inferred by an alienation granted by a Grand-father with consent of his son to his oye who was alioqui successurus by the course of Law Hope recognition Adam Rae contra Laird of Kellie Yet recognition was found incurred by a Vassals Infeftment to his eldest son his heirs and assigneys the son having Disponed the major part to strangers seing the father who was Vassal did not bind up his son from Disponing by a Clause irritant neither did the son purge the alienations made by him during his fathers life July 15. 1674. Sir Charles Erskin contra Forbes of Achintoul And recognition was found incurred by the Infeftments of ward-Ward-lands by a Husband to his Wife in Fee failing heirs ofhis Body albeit the Wife did not acept or make use of the same but brooked by a prior conjunct Infeftment February 14. 1678. Knock contra Lady Knock. And recognition was found to be incurred by an alienation by the Vassal to his Brother who for the time was his appearand heir but not necessarly by the ordinary course of Law seing the Vassal might have had Children of his own and so his Brother could not be called alioqui successurus unless it were by accident Spots recognition Kings Advocat and his Son contra Earl of Cassils and Collane The like July 29. 1672. Lord Hattoun contra Earl of Northesk 19. It is more questionable whether recognition is incurred by a conditional alienation bearing if the Superiour consent or saving the Superiours right Craig following Baldus in the said three Dieges l 3. declareth that if such Clauses be insert bona fide they infer not Recognition But contrariwys if they be done fraudulently as when the Vassal Seaseth and Possesseth a powerful Person whom the Superiour cannot easily Dispossess or his Enemy concerning whom there can be no doubt of the Superiours will or if the Superiour have declared his will upon the contrary But for clearing further of the Point distinction would be made of the Nature and Tenor of the Clause which may either be suspensive or resolutive of the Property or Fee in the former case Tradition is only made of the Possession but the Property is suspended till the Superiours will be known as if the Vassal Dispone and possess another without Seasine there could be no recognition or though he Possess him by an Instrument ofPossession bearing expresly that he should have no right to the Property till the Superiours consent were obtained this were a suspensive Clause like to the addictio in diem in the Civil Law by which only Possession and not the Property was transmitted for that time and so till the purification of the condition it could be no alienation But when the Clause is only resolutive not hindering the transmission of the Property but resolving or annulling the same though transmitted in such an case such Clauses do not exclude recognition because there is truely there an alienation without the Superiour consent which is only to be disannulled by his disassent much less can such general Clauses as Salvo jure cujuslibet or Salvo jure Superioris avoid recognition 20. Recognition was found not excluded or burdened by Inhibition against the Ward-vassal before the gift and Declarator of the Deed inferring recognition seing the Creditors inhibiting did not pursue reduction before Declaratorof recognition December 16. 1680. John Hay contra Bethark and Laird of Balagarno 21. Neither was recognition excluded because the Deeds inferring recognition was done when the Disponer was drunk not being to stupidity impeding reason July 29. 1672. Lord Hattoun contra Earl of Northesk 22. To come now to the Superiours consent it may be either antecedent concomitant or consequent to the alienation and it may be either express or tacite all which will be sufficient to avoid recognition albeit many of them will not be sufficient to make a valide Infeftment if the same be granted by the Vassal to be holden from him of the Superiour which by our custom is null till it be confirmed whereunto an anterior consent or Homologation in any ways will not suffice Craig in the forementioned Dieg. 3. relates the opinion of the Feudists whereunto he agrees that if the Vassals Fee be granted to him his Heirs and Assigneys whatsomever that thereby ther is granted a general antecedent consent of the Superiour to his Vassal to and Assigneys whatsomever that thereby there is granted a general antecedent consent of the Superiour to his Vassal to alienat or assign to whom he pleaseth But the contrary was found in the case of the Lady Cranagie contra Lord Cranburn Feb. 5. 1633. And that the Disposition to Assigneys did only importa power to Assign the Disposition before Infeftment taken thereupon 23. There is no question but the Superiour Confirmation is sufficient even the Kings Confirmation though without a novo damus albeit it may pass in Exchequer without the knowledge advertency of the recognition incurred it was found sufficient being done before the Donatar of recognition was Infeft Hope recognition Rae contra Laird of Kellie Which Confirmation doth secure against recognition falling by thatInfeftments Confirmed but doth not secure against recognition upon other subaltern Infeftments not Confirmed which are not considered to be known by the King or his Officers without a novo damus and so imports but a passing from recognition by the Infeftment Confirmed but not to import an absolute Ratification pro omni jure February 6. 1673. Lord Hattoun contra Earl of Weims The like was found February 23. 1681. John Hay contra Creditors of Murie And a Donatar of recognition having granted Precept of clare constat acknowledging the Vassals right was found thereby excluded albeit the Precept did bear to be in obedience of Precepts out of the Chanclery June 24. 1668. Andrew Gray contra Howison and Gray But the Superiours consent is not inferred by granting Charters for obedience upon Appryzing though before any Infeftment of the Donatar Hope recognition Laird of Lugtoun contra Laird of Lethendie 24. The Superiour consent also by Homologation is sufficient to avoid recognition as if it were express consent as if the Superiour require the new Vassal or Sub-vassal to perform the Services due out of the Fee for thereby he acknowledges him Vassal as is observed by Craig in the case betwixt the Laird of Calderwood and Maxwel of Calderhead Or if the Superiour should pursue the new Vassal for the avail of his Marriage Liferent-escheat or other Casuality of the Superiority 25. Recognition being incurred so openeth and returneth the Fee to the Superiour that no Debt or Deed of the Vassal doth burden the same but these only which before that time were established by consent of the Superiour or Authority of Law
Succession 9. The Judicial Law in the case of the Daughters of Zelophehad Num. 6. 27. Determineth the order of Succession in Lands or Immoveables to stand as a perpetual Statute to the Children of Israel Thus the first degree of Succession is of all the Sons whereby the Daughters and their Descendents are excluded but the Sons do not Succeed equally For the first born had a double Portion of all that the Father had Deut. 21. 17. By which the eldest Son had twice as much as the other Sons So that the Heritage being divided in one Portion more then there were Sons of these the eldest had two and each of the rest one As if there be two Sons it divides in three whereof the elder hath two third parts and the younger one third part If there be three the Heritage divides in four parts whereof the eldest hath two fourth parts which is the half and each of the rest hath one fourth part 10. This Right of primogeniture was so secured that the Father could not preser any other Son thereto Deut. 24. v. 16. Failling Sons the inheritance passes to the Daughters equally For though the Text expresseth it to passe to the Daughter in the singular number Yet it is cleared by the context that all the Daughters are therein included for the Daughters of Zelophehad though more in number are found to have the said Right and to get an Inheritance among their Fathers Brethren by which it appeareth that the Right of Representation had place there for all the Daughters of Zelophehad were but to have that share which their Father would have had if he had been alive among his Brethren for they claiming the Right of their Father whom they show not to have been in the company of Corah thereby forefaulting his right So then right of Representation must take place amongst all descendents So that the Children of the Sons though these Sons survive not their Father would exclude the surviving Daughters or would come in with the surviving Sons not equally and in capita but in stirpes whereby they would succeed to the shares of their pre-deceased Fathers by Right of Representation 11. The third degree of Jewish Succession is failing Descendents the inheritance passeth to the Defuncts Brethren and these failing to his Fathers Brethren and these failing to the nearest Kinsman of his Familie that is the nearest Agnats on his Fathers side where all the male Agnats of the same degree are understood It doth not appear whether in this Collateral 〈◊〉 there be place for Representation and though there be no mention of the Succession of Women or their Issue but only of Daughters Some have thought from the paritie of Reason in everie degree failing the Males the Females are to Succeed and to exclude further degrees of Males as if there be no Brothers but Sisters these should exclude the Fathers Brother It may be also thought strange that in all this course of Succession there is no mention of the Succession of Parents 12. In answer to these doubts as to the first I conceive that in Collateral Succession there is also place for Representation so that the Brothers Sons as representing the Defunct Brother their Father would exclude the Fathers Brethren And so of the rest because it is said if there be no Brethren the Inheritance shall passe unto the Fathers Brethren which 〈◊〉 unto the nearest Kins-man and if there be no Right of Representation the Cousin-german or Father Brothers Son would exclude the Nephew or Brothers Son for Uncle and Nephew are never understood by the name of Cousins or Kinsmen but have that special nominate relation of Uncle and Nephew or Father and Brother Son and therefore the Brothers Son as representing the Brother must succeed and exclude the Fathers Brother 2. Cateris paribus Succession will certainly descend to the Brothers Son and not ascend to the Fathers Brother 13. As to the second doubt Ihold that only Daughters and their Issue do succeed and no other Females or their Issue the reason is First from the Text where failling Sons Daughters are exprest but failling Brothers Sisters are not substitute but Uncles 2. The Division and Succession and the Land of Canaan was Typical and was not to passe from Tribe to Tribe and therefore Daughters succeeding are appointed to Marry in their own Tribe because ordinarily they were to be Married when their Fathers succession did probably appear but this could not have been if Fathers Sisters and these of further degree had succeeded 14. As to the third concerning Succession of Parents it is sure Mothers and all Cognats by the Mother side being ordinarily of other Tribes and Families were for the reason now adduced excluded from the Succession The Text is clear that only Kins-men in the Family that is on the Fathers side succeed But the reason why there is no mention of Fathers c. May be because the Land of Canaan being Typical is fixed to Tribes and Families it uses not to passe by Testament or provision or to be acquired further then by Wodset to return at the Jubile Therefore among the Jewes Lands passed by the ordinar course of Legittime Succession and so came from the Fathers to the Children which presupposes the Father to have been pre-deceased and could not succeed By this Tract of the Jewish Succession it is clear that GOD by his Positive Law altered the effect of Equitie and of his Moral Law in succession For it hath been now shown from that place if Children then Heirs That all Children must needs be Heirs not by the Judicial Law but by Equity And yet by the Judicial Law not all Children are Heirs but Sons exclude Daughters and Females are excluded by Males of a far distant degree which necessarily infers that for expedience the course of Succession may be altered The like must also be in other effects of Equity which are in our power 15. The order of Succession in the Civil Law did exceedingly varie being in many points different in the Ancient Law of the twelve Tables in Honorarie Law introduced by the Edicts and Customs of the Pretors who had Authority to Supply and Correct the Ancient Law and in the Imperial Constitutions especially in the Novel Constitutions of Justinian they did all agree in this that the chief mean of Succession is the Will or Testament of the Defunct which they held so Sacred That all Pactions or Provisio s which might any way hinder the Free Liberty of Testing or any Act whereby Defuncts might be Restrained or Constrained in the free Disposal of their Estates were not only null but exclusive of such Persons from having any interest in the Defuncts Inheritance Yet were the Romans so sensible of the Natural Obligation of Parents to provide their Children that their midle Laws necessitat Fathers either to institute ther Children or expresly to exhaeridat or disherish them expressing their delinquencie of Ingratitude the kinds
whose hands the same now is From what time How By what Service By whom and through what cause It is needless to be Curious concerning the number of the heads of this Brieve some parts thereof not being distinct but explicatory of the former 29. These Brieves are accordingly direct to the Judges ordinary where the Land or Annualrent lyes as to Sheriffs Bailiffs of Royaltie or Regality or Bailiffs of Burghs-royal But if there be just exception against the Judge ordinary of the place or if the Lands or Annualrents lye in divers Jurisdictions and so be represented Warrand will be granted upon Supplication to the Lords that the Director of the Chancerie issue Brieves to other Persons and frequently in the case of diverse Jurisdictions they are directed to the Macers 30. By Vertue of this Brieve the Judge ordinary or Delegat to whom they are direct citeth Persons to be members of inquest upon 15. dayes And 〈◊〉 the Brieves at they Mercat Cross unless they be Served at the 〈◊〉 Court when all the Free-holders are oblieged to be present and then the Brieve may be served without further delay conform to the Act of Parliament 1429. cap. 27. and Par. 1503. cap. 94. where it is left arbitrary to summon the Inquest on what dayes the Judge server of the Brieve pleaseth or presently if they be Persons of Inquest present in the Tolbooth un-summoned But in all cases the Brieves must be proclaimed publickly at the Market Cross in plain Market where most confluence of people is gathered so as it may come to the knowledge of the partie before whom it should be served And then that the said Brieve be thrice cryed plainly together which is by three several Oyesses with a loud and audible Voice before the reading of the Brieve and the Sheriffs Precept thereupon and each Oyes to be at as great distance from other as the time required to give the said Oyes thrice and that the Officers of the Town be present But if the Brieve come to be served so near Whitsunday or Martinmass that there does not intervene a Market day the Brieves may be proclaimed upon any week day the Officers and six others of the Town being present Yet either the day of Compearance or the day of Citation is numbered as one of the fifteen July 27. 1626. Mackculluch contra Mackculloch There is no necessity to Summon any Defender in lieu whereof is the publication of the Brieve by Proclamation at the Market Cross. Yet upon the Supplication of the partie interessed Warrant was granted by the Lords to the Director of the Chancerie that no Brieves should be issued for serving Heirs to such a Defunct unless they contained a Clause to cite the Supplicant who was Donatar to the Defunct's Bastardrie Spots de haereditarijs actionibus Mackculloch contra Laird of Martoun 31. The Inquest being called consisteth ordainarly of 15. Persons against whom like Exceptions are competent as against Witnesses And though Craig lib. 2. dieg 17. regrateth that any person is admitted to be one of the Inquest whose Rent exceedeth not 40. lib. though they be not pares curiae nor Con-vassalls with the partie to be served neither of the vicinity or Neighbour-hood contrary to the Intent and Ancient Custom of these Services Yet he acknowledgeth that it was so ordainarly especially in the Service of Noblemen and Custom hath containued the same hitherto But those of the Neighbour-hood were fittest because as Craig observeth in that place Inquests are in the middle betwixt Judges and Witnesses partaking part of them both for two or more of them of their proper Knowledge will be sufficient for Witnesses in the matter of fact and upon their declaration all the rest will Serve affirmativè without any other Testimony And it is like they have been of old sole Judges in Brieves the Judge ordinary having no more power but to call and order them And they are yet with the Judge ordinary or Delegat as Judges for they must serve and do sometimes seal the Service with him 32. The Inquest being settled the Heir apparant gives in his Claim craving to be served Heir to his Predecessor in such Lands or Annualrents and therewith the Brieve and Executions thereof together with the instructions of the same 33. The Brieve and Claim are as a Libel against which any partie compearing and found to have Interest may propone their Exceptions which are many more than those contained in the said last Act of Par. 1503. cap. 94. And first against the Executions as being blotted in the date or other Substantials and so null which thereby may not be mended as other Executions as the Name and Sir-name of the Followers and of the Defender the name of the Land and Cause upon which the Brieve was purchased Which was found not only to extend to the blotting of the Brieve but to the Executions thereof July 27. 1623. Mackculloch contra Martoun Or as not proclaimed upon fifeen days which also will be relevant by way of Reduction Or that the Defunct was Bastard and had no lawful Issue Or that the pursuer of the Brieve is Bastard and so incapable of Succession wherein if the proponer be more special and pregnant than the apparant Heir in his alledgence of being nearest and lawful Heir he will be preferred Exceptions also are Competent as to the point of Right by proponing and instructing that the Defunct was denuded of the Fee but Exceptions upon paralel Rights that the Defunct had not a good Right are not competent here And also Exceptions upon the age of the apparent Heir or his being forefault or Rebel c. are here competent and likewise Objections and Debates upon Instructions and Writs adduced for proving of the Claim and Head of the Brieve In which cases if there appear difficultie or intricacie the Lords upon supplication will constitute Assessors or grant Advocation of the Service and after discussing of the points in jure will remit the same either to the same or to other Judges delegat But no Objection or Exception will be admitted unless it be instantly verified because this Brieve is no Brieve of Plea Par. 1503. cap. 94. and therefore cannot admit of terms to prove Exceptions 34. The Debates upon the Brieve being discussed the Pursuer thereof must prove and instruct sufficiently the Heads of the same As first that the Defunct died last vest and seised as of Fee at the faith and peace of our Soveraign Lord which comprehends first the Death of the Defunct which is ordainarly proven by the Knowledge of the members Notorietie or common Fame without necessity to instruct the same by ocular Witnesses who saw the Defnnct die or buried But in case of the Defunct's Death out of the Countrey or if it be dubious or controverse the testimony of Witnesses or proper knowledge of two at least of the Inquest or Testificats from abroad especially from the Magistrats of the Place where the Defunct died
January 29. 1673. Stewart contra Stewart But Conquest is only understood of what the Husband acquired more after his Contract of Marriage than what he had before And therefore if he acquired Lands Annualrents Sums or Goods if he instruct That he had as much or a part thereof before as he sold the superplus will only be counted Conquest And though he have not disponed on any thing he had before 〈◊〉 〈◊〉 he contract Debt for purchasing the Conquest it will be burthered with the Annualrent of the Debt as was found in the former cases And the like December 20. 1665. Lady Kilbocho contra Laird of Kilbocho June 27. 1676. Earl of Dumfermling contra Earl of Callender The like was found in a Provision of Conquest of all the Husband 's Goods and Geer acquired during the Marriage to the Wife for her Liferent use which was found to be with the burthen of the Husband's Debt contracted before or after and so to import only Liferent of the free Geer December 23. 1660 Jane Smith contra Margaret Muire And where a Husband was obliged to imploy a definite Sum for himself his Wife and Bairns of the Marriage and also his Conquest and having acquired a Tenement during the Marriage to himself and his Heirs whatsoever that Tenement was applyed to the definite Sum primo loco and the superplus as a Conquest January 4. 1672. Beaty contra Roxburgh So much for the Being and Interest of Heirs As for the proving and instructing who are Heirs the most ordinary by way of Retour or Infefment as Heirs or by a Service though not Retoured but those Instructions must be repeted in every several Process For so an Heir active was found not to be instructed by a Decreet at his instance as Heir against the same Defender and in the same Matter without reproduction of the Instructions Feb. 22. 1629. Stewart contra Wilson neither was it instructed passivè by a Decreet of the Comissars by production of the Defender's Seisine without 〈◊〉 thereof Had. Neither was it instructed passivè by the Kings gratuitous Restitution of the apparant Heir of a forefault Person which made him capable of his Father's Rights but not Heir nor Successor to him Hope forefaliure Halyburton contra Lord Balmerino Neither by a Bond wherein the Party designed himself Heir or at least apparant Heir which relateth nothing to the benefit of Succession January 24. 1626. Laird of Glenkindie contra Crawfoord Neither by an Award of a Town Court recognoscing a Burgess Heir to his Predecessor Spotswood Heirs Gudelet contra John Adamson TITLE XXVIII Behaving as Heir 1. Gestio pro Haerede described 2. The time when this passive Title was introduced 3. The reasons of introducing it 4. The latitude used in this Title 5. This Title not competent after the Intromette's Death or where there was any colour able Title 6. Behaving as Heirs by Intromission with Heirship only competent against Heirs of Line 7. Intromission of Tutors or Curator's infer not gestionem against the Pupills or Minors 8. Cases inferring gestion by Intromission with the Heirship moveables 9. Exceptions against this member of the Title As first The Pursuer must instruct that the Defunct was either Barron Prelat or Burgess by Infeftments of Lands or 〈◊〉 10. The 2. Defence against Intromission with Heirship Moveables and vitious Intromission That the Defunct died Rebel and his Escheat gifted before intenting the Creditor's pursuit 11. The 3. Defense That the apparant Heir intrometted by a Gift to himself or to his behoofe 12. The 4. When Moveables belonging to a Defunct remain in his House whereunto his apparant Heir hath right by Infeftment 13. Gestion by intrometting with Lands Tiends or Tacks wherein the Intrometter might be Heir 14. Defenses against this member 15. Gestion by intrometting with the Defunct's Charter Chest. 16. Item by intromission with Sums due to the Defunct or doing any Deed that may transmit the Defunct's Right 17. This passiive Title excluded unless established in the behavers in the behavers life-time 18. How far Heirs Portioners behaveing as Heirs are lyable and whether behaving as Heir excluds the benefit of 〈◊〉 and relief competent to Heirs actually entering GESTIO PRO HAEREDE is the apparant Heirs disorderly Entry and immixing himself with the Heritage without order of Law and therefore it gives him no Right nor Active Title as Heir but makes him only Heir 〈◊〉 whereby he represents the Defunct in all his Debts and Burthens and is lyable for them all 2. This passive Title as Spots observes was but introduced by the Lords of Session and was not before the institution of the Colledge of Justice the apparant Heir being only lyable for restitution of the single value formerly As was found in the case of an Heir's Intromission with the Heirship moveable November 14. 1546. Janet Seatoun Lady Dirlton contra Anna 〈◊〉 3. The reason of introducing this passive Title is in favour of Creditors that they be not un-satisfied or shifted by the heirs of the defunct Debitors who if they might continue possession of their Predecessors Means and Estate and be but countable would rarely enter and hundle up their Intromission and with time ascribe it to singular Titles abstracting their Predecessors Rights And therefore it is an expedient Custom that they should either enter legally and for good and all or that they should wholly abstain Especially seing the Law allows them a year to enquire into the condition of the Desunct's heretage whether it will afford them losse or gain during which time they may deliberat and if they abstain can be troubled by none So that though it may seem rigourous for a small Intromission to make the Intrometter lyable for all the Defunct's Debts how great soever Yet it being so easie to abstain and the hazard known the Expediency and Favour of the Creditor proponderateth the wilfull Disadvantage of the Debitors Heir 4. In this Title the Lords have always taken great Latitude and sometimes have found smal Intromission not relevant to infer this Title in odions 〈◊〉 November 6. 1622. Laird of Dundas contra Hamilton of Peill Where a Decreet of Spulzie of Tiends being obtained against Peill's 〈◊〉 and never insisted in till in his time he was convened as Heir to his Father who had behaved himself as Heir to the Good-sire in so far as he had entred and dwelt in the house of Peill and there being in the house the Goodsire's best Board standing Bed and brewing Caldron he used the same by eating at the Board lying in the Bed and brewing in the Caldron and desivered the Good sire's Beiff Pot to a Flesher for Flesh furnished to the Defender's Father the Defenders Mother having keeped possession of these Heirship Goods for five years before 5. Yet this Condescendence was not found relevant in this Case The passive Title was not established before the Defender's Father's Death As the Lords lately found That these passive Titles quae sapiunt
doth remain and both are compatible Hope Successor Lucrative Gray contra William Burgh 2. This passive Title is not only extended to Dispositions of Lands bearing expressly a lucrative Title as for Love and Favour c. but though the Narrative thereof bear expressly a Cause onerous which being betwixt the Disponer and his apparant heir proves not and therefore the Cause onerous must be proven aliunde Vide Title Reparation upon Circumvention where the Narrative of Writs amongst conjunct and confident Persons proves not the Cause to be onerous And though there be a Cause onerous instructed it will not be sufficient unless it be equivalent to the worth of the Lands to substain it against Reduction but if the Cause onerous be considerable the heir will not be lyable simply or personally but the Right may be reduced and the heir may be lyble in quantum est lucratus And therefore an apparant heir having accepted the benefit of a Disposition and Infeftment granted by his Predecessor to a third Party but to the apparant 〈◊〉 behoofe the Lords before answer ordained the Cause onerous of the Disposition to be instructed reserving to their consideration how far the apparant heir should be lyable personally thereby January 14. 1662. Nichol Harper contra Hume of Planergest The like of a Disposition of Lands by a Mother to her apparant Heir though it did bear a Sum of Money which did not prove betwixt Mother and Son February 15. 1676. Patrick Hadden contra George 〈◊〉 The like was found of a Disposition by a Father to his Son and apparant heir though the Son offered to prove it was for equivalent onerous Cause seing the Disposition it self did bear for love and favour and other good Considerations November 22. 1671. Beaty contra Roxlurgh But Bonds of Provision by Parents to Children infer no passive Title though the Children be Heirs apparant As when the Bonds are granted to the eldest Son or Bonds of Provision or a Tocher to Daughters when there are no Sons though in that Case the Daughters might be esteemed heirs apparant although truly they be not for a man is ever understood to be capable of having a Son and therefore Daughters are little more heirs apparant than Brothers Yet Bonds of Provision or Tochers are reducible by anterior Creditors if the Defunct had not a visible Estate sufficient for these Portions and his whole anterior Debts And therefore accepting a Tocher did not make a Daughter lyable as lucrative Successor though there was no Son yet the Daughter and her Husband were found lyble to the Father's anterior Creditors for what was above a competent Tocher suteable to the Parties December 23. 1665. Dame Rachel Burnet contra Lepers Neither will taking Bonds in the name of the Daughters or assigning Bonds to them make them lyable as lucrative Successors And yet the accepting of Assignations to heretable Bonds by a Father to his eldest Son in which the Son would succeed as Heir may inferre this passive Title December 2. 1665. Edgar contra Colvil But where the Father in his Contract of Marriage provided his Son to several Bonds which before any Creditor pursued were payed and cancelled and it did not appear by the Contract whether they were heretable or moveable the Lords did not sustain the passive Title but found the Son lyable in quantum 〈◊〉 and did presume the Bonds to be heretable unless they were proven to be moveable January 7. 1679. Hamilton of Burdowie contra Mr. Andrew Hay But a Disposition of Lands to the eldest Son was found to make him lucrative Successor although by his Father's Contract of Marriage with his Mother his second Wife the Father was obliged to infeft the eldest Son of the Marriage in the said Lands which did import a Succession seing the Obligement contained no determinate time and so might be performed by the Father any time in his life November 29. 1678. Hagens contra Maxwell The like was found in a Disposition of Lands or Annualrents to the eldest Son of the Marriage seing these were provided to the Heir of the Marriage February 22. 1681. Grizel More contra Ferguson The Disponer's Bairns Portions are not a Cause onerous being granted after the Creditors Debts albeit undertaken and secured by the apparant Heir bona fide before any Diligence at the Creditors instance not being payed before the Pursuit ibid. because the Heir may suspend upon double Poynding and will not be made to pay both the Bairns and Creditors 3. This Title is extended to Dispositions granted in the apparant Heirs Contracts of Marriage which in many respects is accounted a Cause onerous July 8. 1625. Gray contra William Burgh Where the Son was not liberat though he offered to renounce the Lands he had by Contract And it was found that Lands being disponed and resigned by the Father in favour of the Son by his Contract of Marriage though they were for the present wadset and disponed with that burthen and thereafter redeemed by the Son by his own means so that there remained nothing in the Father but the Superiority and the 〈◊〉 yet the Contract of Marriage was found onerous as to the Wife 's Luerent And in respect the Son was Minor and presently revoked the Disposition and renounced all other Rights except that of the Wadset which he had redeemed he was liberat of the passive Title and the Lands declared redeemable by any Creditor anterior to the Contract January 14. 1634. Mr. David Courtney Minister contra Weems of Lothoker In the like Case where Lands were disponed by a Father to the Son in his Contract of Marriage for a Tocher payed to the Father for some Debts and Bairns Portions far within the worth of the Land the Son was not found lyable in solidum as lucrative Successor nor yet the Pursuer put to a Reduction but the Son was in hoc processu put to compt and pay the superplus of the true price of the Land June 17. 1664. Lyon of Murask contra Bannerman 4. This Title takes place not only in universal Dispositions of the Predecessor's whole Estate but a Disposition of any part thereof is sufficient seing the least as well as the most is praeceptio haereditatis 5. This Title is extended also not only to Dispositions made to and accepted by the immediate apparant Heir but also to the mediate apparant Heir so that he be alioqui successurus by the course of Law necessarly as what is granted to the eldest Son of the apparant Heir Because the ground of this Title being to prevent Deeds in favour of the Disponer's Successors prejudicial to the Disponer's Creditors whose Debts are anterior the reason holds as much where he dispones to his Oye who by the course of Law is to succeed to him as to his Son 2. It is Praeceptio haereditatis in the Oye aswell as in the Son And therefore the Rule in this Title is not that the Accepter be that Person who
effect is that it be without Collation Which is so much the more evident that oftimes Children are provided to be Bairns of the House after the rest are likewise provided So that when that Condition is not adjected the meaning is that without consideration of the Tocher or former Provision the Children by that Clause should have equal share It was so found Spots Test. Elizabeth Carsen contra Agnes and Marion Carsens 46. Collation then hath only place amongst Children where it is not prohibite expresly or implicitely by the Father providing that Child to be a Bairn in the House But Collation hath no place as to the Wife because Tochers in such Provisions being as inter vivos of its own nature it is no part of the Executory but is done by the Husband in 〈◊〉 potestate who is dominus omnium bonorum at least hath plenam administrationem notwithstanding the Communion of Goods in the Wife But Collatio is only a Remedy introduced in Law to keep Equality amongst Children who have an equal Interest in their Father and his Moveables but it is not introduced to keep an Equality betwixt the Wife and them Neither doth it design an Equality in all things but in Provisions or Tochers in Money which must be accompted to those who got the same But Land disponed to a second Son for Love and Favour not bearing for his Portion or in satisfaction thereof was not found to exclude him from his share of the Bairns part with his Sister nor to require him to collate what he got in Land January 14. 1677. Duke and Dutches of Balcleugh contra Earl of Tweedale Hence ariseth another Branch of the former Question Whether if all the Children be forisfamiliat and provided but have not discharged their Portion natural or Bairns part or accepted the provision in satisfaction thereof If in that case they will have access to a Portion natural in prejudice of the Relict and Legatars I say if they be all provided because if some be in the Family unmarried and unprovided the Relict and Legatars will be no more prejudged if all the Bairns come in or only some of them because many or few they will have all the Bairns part and no more The former Case Ross contra Kelly seems to bring in the Children though all forisfamiliat to a Legittime with the Relict because there was but one Child and she married and tochered Only it is observed that her Provision was in satisfaction of her Mother's part so that albeit she was married yet it appears that she was not provided ex bonis paternis but only ex bonis maternis And therefore it remains yet unclear and there seems much reason that the Wifes interest being a division of her Communion of Goods she should not devide with them who are out of the Family and provided unless they had a Provision to be Bairns in the Family By the common Practick also Commissaries divide Executory in two where there is a Wife and the whole Children married and so presumed to be provided It was so found where there was but one Child married and provided though not exprest in satisfaction But the Child was admitted to a Third offering to confer February 18. 1663. Dumhar of Hemprigs contra Frazer And where a Defunct had only two Daughters besides his Heir the one in her Contract of Marriage getting a Tocher in full satisfaction of her Portion natural and Bairns part and the other in her Contract being provided to be a Bairn in the House was found to have the whole Right to the Bairns part and to the Deads part and Office of Executory excluding the other who was found to succeed to no part as being renounced in favour of her Father and returning back from him by his Succession but that it accresced to the other though she was not Executrix nominat but dative And therefore the Confirmation of her sole Executrix was sustained January 27. 1680. Agnes Sandielands contra Rachel Sandielands There is an other considerable difference betwixt the condition of the Wife and Children introduced by the Act of Parliament 1641. revived Par. 1661. cap. 32. whereby Bonds and Provisions bearing Clause of Annualrent which before were heritable and so fell not within Executory now are moveable as to the Bairns nearest of Kin Executors and Legatars only excluding the Relict and are disposeable by Legacy or Nomination and at the Defunct's disposal by Testament or any Deed on Death-bed And they are exhaustible by Debts of the same nature which Debts of that nature do not exhaust the Relicts part which is inferred by a necessary consequence from the foresaid Act of Parliament 1641. For seing thereby Wives have no Share of their Husband's Bonds bearing Annualrent as they have not the benefit so they ought not to be burthened with such Bonds unless the Husband or Wife die before the Term of Payment of the Annualrent or that the Bonds become moveable simpliciter by a Charge or Pursuit for Payment thereof whereby the Creditor's mind is presumed to make the Sum simply moveable In which Case the Wife hath both the benefit and burthen of such Bonds in her Share July 14. 1664. Elizabeth Scrymgeour contra Murrays Yet the Wife hath her Share of the Annualrent of all Bonds though heritable due before Dissolution of the Marriage but no Share of the said Annualrents after nor of the Stock June 24. 1663. inter eosdem In this Case a Bond being payable to the Husband and Wife the longest Liver of them two but bearing no Annualrent the Relict was found to have her option either to lift the whole and re-imploy it for her Liferent use or to have the Half of the Stock seing it bare no Annualrent but not to have both the Annualrent of the whold and the Half of the Stock But Bonds which exclude Executors are heritable quoad creditorem but moveable quoad debitorem Because the Creditor excludes his Executor whereas the Debitor's Executor is not excluded but lyable But Bonds bearing Clause of Infeftment are simply heritable both as to the Debitor and Creditor for by these the mind of the Creditor appears to exclude all others but his Heir except as to the bygone Annualrents 48. Heirs are excluded from the Bairns part though in the Family because of their Provision by the Heritage except two Cases First if the Heir renounce the Heritage in favour of the remanent Bairns for then the Heir is not to be in worse case than they but they come in pari passu both in heritable and moveable Rights which is a kind of collatio bonorum which will hold when there is no Bonds but heritable Bonds 49. Secondly If there be but one Child in familia and so both Heir and Executor that Child hath not only the Heritage but the whole Bairns part and so abates the Relict's part and Dead's part Nic. Division of testaments Kennedy contra his Father's Relict The like without
receive him 12. Terce is the third of the Tenements in which the Husband died infeft as of Fee provided to his Wife surviving by Law or Custom though there be no provision or paction for that purpose The original hereof as hath been shown before amongst the interest of Marriage is from that obligation upon the Husband to provide for his Wife which therefore positive Law hath determined to a third of his Moveables if there be Children in the Family and if there be none to a half but in either case she hath a third of his Tenements And though as Craig observeth by our ancient custom Terce extended only to a third of the Tenements a Husband had the time of the Marriage yet since it extends to a third of those he stands infeft in as of fee the time of his death and so when he is denuded before his death the Terce is excluded Yea a base Infeftment without possession granted by a Husband to his Creditor was found to exclude his Wife from a Terce of that Land January 27. 1669. Bell of Belford contra Lady Rutherford This provision of Law is more equitable and proportionable then ordinarly are their provision by Contract of the Husband who being carried with affection doth oft-times provide his Wife to the prejudice of their Children and ruine of their Estate which this Terce keepeth alwayes proportionable and maketh the Wife sharer of the Industry and Fortune of the man and therefore more careful over it and upon the contrary giving out but small Provisions to their Wives at their Marriage when oft-times they do but begin to have Estates which they increase not according to the increase of their Fortune but the Law doth more fitly order the Wifes Provision to be increased or decreased according to the condition of the man 13. The Terce taketh place ordinarly where the Husband died infeft as of Fee and it hath no effect till the Widow take Brieves out of the Chancelery directed to Sheriffs or Bailies to call an Inquest of fifteen sworn men and thereby to serve the Brieve which hath two Heads the one That the bearer was lawful wife to the defunct the other that he died in fee of such Tenemnts This is a pleadable Brieve and hath no retour but Service alone is sufficient enough to give the Wife interest that other Liferenters have It was specially statute That where the Marriage was not questioned in the Husbands life and the Widow was holden and repute his lawful Wife in his Time no exception in the contrary shall be sustained in the service of the Brieve but she shall be served and injoy the Terce till it be declared in a petitory judgement That she was not lawful Wife Par. 1503. cap. 77. 14. The Brieve being thus served the Sheriff or Bailiff must also if it be demanded ken the Relict to her Terce which is ordinarly done by the Sun or the Shade That is whether the division shall begin at the east or the west and so the division of the Tenements proceed by Aikers two befalling to the Heir and one to the Relict wherein there ought to be Marches set and Instruments taken thereupon which is as a Seasine but this division being most inconvenient except the whole interest were used to be set in Aikerdale it is not exclusive of other divisions by the worth of the Lands or the Rent so many Rooms being designed for the Tercer the rest remaining for the Fiar This way of kenning would be valid and much better but it is not necessary to divide at serving the Brieve to constitute the Terce for the Service giveth sufficient Title to the third of the Mails and Duties of every Room March 5. 1632. Relick of Veatch of Dawick contra 15. But that thereby she cannot remove possessors is because she brooketh the Terce pro indiviso with the Heir till it be be kenned or otherwayes divided and the Terce being served gives right not only to the years thereafter but preceeding since the Husbands death November 20. 1624. Tennants contra Crawford and Flemming and so the Tercer may pursue the Heretor or other intromettor for all by-gones of the third of the Duty not as they were at the Husbands death but as they were bettered by the fiar Feb. 13. 1628. Countess of Dumfermling contra Earl of Dumfermling and that without deduction of Factor-fee March 27. 1634. inter eosdem The Tercer being served hath interest to pursue for Commission to cognosce pasturage Lands what Soums they may hold that she may have the third Soum or else to divide January 18. 1628. contra Mackenzie The division of the Terce from the two thirds may be in the most convenient way wherein all Dwelling-houses or Kilns and Barns and other Houses for service will come in as they may be most conveniently divided This is the most ordinary way of Terces by Service as said is when the Husband died infeft in Fee 16. Terce takes place not only in Lands but also in Annualrents wherein the Husband died infeft as of Fee Novemb. 30. 1627. Tennants of Easthouses contra Hepburn but not to the Terce of Annualrents of Bands whereupon no Infeftment followed June 24. 1663. Elizabeth Scrimzeour contra Murrays It is also extended to Infeftments of Teinds Feb. 13. 1628. Countess of Dumfermling contra Earl of Dumfermling But it is not extended to Tenements or Lands within Burgh or holden Burgage neither to Superiority or Feu-duties or other Casualities thereof nor to Tacks ibidem neither to Patronage or Advocation of Kirks neither doth Terce extend to Reversions If the Fiar whose Land is lyable to a Terce die and his Wife have right to another Terce which is called the lesser Terce though the Husband died infeft as of Fee of the whole Tenement she hath not a third of the whole but a third of these two thirds which were unaffected with the greater Terce till the former Tercers death Craig lib. 2. dieges 22. proposeth two cases in which the Relict will have a Terce though the Husband died not infeft as of Fee The first is if the Husband infeft his appearand Heir in his Estate if there be no Liferent provided to his wife by a Contract in that case the Relict will have a Terce which is most just albeit it will not proceed summarly by a Brieve which bears only warrand for a Terce of the Tenements in which the Husband died infeft as of Fee But it may proceed by Reduction or Declarator and would not only have effect against the appearand Heir but against any gratuitous Disposition reserving the Husbands own Liferent for such deeds would be found fraudulent and contrary to the nature of the obligation of Husbands to provide their Wives unless there remained Tenements out of which a reasonable Terce might remain to the Relict according to her quality The other case is when a Father by his Sons Contract of Marriage is oblieged to infeft his Son
in Fee in certain Lands if the Sons Relict be no otherwayes provided she may claim a Terce of these Lands though the Father did not perform his obliegement which may be construed as fraudulent and in her prejudice 17. Terce is excluded by all wayes whereby the Marriage was dissolved upon adultery or desertion or by the death of either party within year and day without Children or may be found null of which formerly amongst Conjugal Interests Tit. 4. And also by whatsoever way the Husband is sine frande divested the Terce is excluded as by a Crime inferring Forefaulture or Recognition by the Husband or his Superiour though not declared before his death or by the Ward and Non-entry of his immediat Superiour There was one decision observed by Spotswood and Hope betwixt the Relict of John Cranstoun and Crichtonn That an Apprising without Infeftment did exclude a Relict from her Terce it were hard to sustain that in all cases even though there were a Charge against the Superiour upon the Apprising which as it would not exclude the Superiour from the Ward Non-entry or Relief So neither should it exclude a Relict from her Terce unless she had a Conjunct-fee or Life-rent by consent equivalent to a tertia rationabilis And though our custom hath far deborded from the ancient design of Terces whereby a reasonable Terce was appointed and if any voluntary Liferent were granted Craig observes that it was ever understood to be no more but for clearing and securing the Tercer against the trouble and difficulty of recovering possession by a Service and therefore was alwayes retrenched unto the Terce Yet now not only real voluntary Provisions are sustained though of the Husbands whole Estate and Conquest albeit granted in aestu amoris with this temperament only That if the Heir have no other Estate the Liferenter must intertain and educat him according to his quality by Act of Parliament which is more extensive then a simple aliment but she is also lyable super jure Naturae to aliment her other Children if they have no provisions But Custom hath so far proceeded as not only to allow voluntary provisions how great soever but therewith to add a Terce of any other distinct Tenement unless the voluntary Liferent were accepted in satisfaction of the Terce which indeed were reasonable in many cases The voluntary Liferent being oftimes small and suitable to the Estate the parties have when they Marry but cannot make a rationabilis tertia if by Conquest their Estate should grow great neither is it reasonable that though the voluntary provision be never so great that a Terce should be given though litle remained to the Heir only because by Ignorance or negligence the clause in satisfaction were not adjected Which satisfaction may not only be proved by Write but by Presumption from the design of parties in the Contracts of Marriage which are uberrimae fidei For suppose which is ordinary enough that a Liferent of Lands are provided by the Contract of Marriage yet some Lands are not mentioned but there is a Clause adjected for the Liferent of the whole Conquest were it rationabilis terlia to give the Wife a third of that which is omitted though she had a particular Liferent of more and the whole Conquest though never so considerable Yea it came lately to be 〈◊〉 whether a Liferenter Infeft in an Annualrent out of her Husbands Estate consisting of one Tenement lying Contigue the Annualrent being two thirds of the Rent thereof because it bore not in satisfaction of a Terce The Relict did also claim a Terce out of that same one Tenement which is yet sub judice But so far as I can understand by former Decisions it hath not yet been determined whether Relicts should have a reasonable Terce according to the Terms of the ancient Law inducing Terces Or whether she should have a Terce proportionable or suiteable or not though she be already suitably provided if she have not expresly accepted her former provision in satisfaction of her Terce Which Terce is most favourable when suitable and therefore takes place in the two cases before mentioned even beyond the Letter of the Law and therefore if it were unproportionable to the quality of the Husband and Wife who might have a great Estate in Money and little Land a voluntary Provision out of any Tenement should not exclude a Terce out of the remanent of the same Tenement or of any other Tenement unless the Relict were sufficiently provided before There is one Interloquter betwixt Jean Crightoun and Kirkhouse her Son wherein it was alledged that she was sufficiently provided to more then a Terce of her Husbands Estate which was repelled but the Case was in possessorio where the Relict was already served and kenned to a Terce and was pursuing the Tennents so that the Service and Kenning being a standing Sentence doth not determine what might be done in petiterio Neither was that allegeance proponed and offered to be proven but only alledged informative whereas the Defence proponed was that the Relicts provision was but a minut of Contract bearing to be extended with all Clauses requisite whereof there was a Process of Extension depending including the acceptance in satisfaction of the Terce as being ordinary but it was replyed that that Clause was omitted in the full Contract already extended But now by the late Act of Par. 1681. cap. 1. there is no place for a Terce where there is a provision for the wife of liferent unless a Terce be expresly reserved Craig proposeth another case whether the 〈◊〉 would have a Terce of Lands competent in Fee to her Husband and so possest by him though by fraud or neglegence he never Infeft himself which he says is the opinion of Litletoun and it is not without much ground though it hath not come to be decided with us voluntary Liferents in satisfaction being so ordinary for though the appearand Heir not entering cannot burden the Fee with his debt yet his jus apparentiae gives him or his Executors right to the Fruits during all his life whereunto it would be suitable enough that though his voluntary provisions to his Wife could not affect the Fee yet the legal provision of a reasonable Terce might By the Custome of England Relicts loose their Terces by falling in publick and atrocious Crimes as Treason Murder Witchcraft although they be restored by the King by way of grace because thereby the memory of their husbands and fame of their Children are disgraced I know no such Point to have been drawn in question with us Craig in the forecited place holds that if the Fiar Transact for his own or his Superiours Forefaulture or Recognition or obtain a Gift thereof it should accress to the Tercer whose provision is onerous importing Warrandice and therefore might be effectuall against the Fiar if he represent the Husband and in all distresses Relief doth import what the party distressed truly payed
Male or of Tailzie or Provision in Lands or Annualrents and thereafter acquire Reversion Apprisings Tacks or others further or better security of the same Lands to himself and his Heirs whatsoever these will accress to his Heirs Male or of Tailzie or Provision whether the Infeftment in their favours be anterior or posterior which is the more dubious Case for it cannot be thought that the Defunct having before provided such Lands or Annualrents to his special Heirs doth by acquiring new Rights mean to set his Heirs by the Ears to debate upon their several Rights Neither can his posterior Deeds be repute an alteration of the former Provision which can only be done by Resignation unless the Defunct debarred expressly his former special Heirs and obtained his Heirs whatsoever Infeft And though Heirs whatsoever do ordinarily signifie Heirs of Line who are heirs general and take place when the Right of no special heir appeareth yet the adequat signification thereof is not heirs general but heirs generally whether of Line Male Tailzie or Provision as is more clear passivè in the Defuncts Obliegment as if he oblieged himself and his heirs whatsoever By heirs whatsoever will be understood all kind of heirs in their order yea in some Cases only his special heirs if the Obliegment relate to Lands or others so provided as will shortly appear And therefore heirs Male or of Tailzie and Provision in respect of the heirs of Line are as Strangers and may come against their Predecessors Deeds in favours of his heirs of Line as if any person provide any Lands or Annualrents to his heirs Male or of Tailzie and thereafter dispone the same to his heirs apparent of Line his heirs Male or of Tailzie will in several Cases not be oblieged to fulfil that Provision and if such express Provisions be ineffectual to the heir of Line it seems a general taking a new Right in favours of heirs whatsoever should be less effectual But the difficulty is how special heirs can be served heirs in such Rights supervenient conceived in favours of heirs whatsoever which will be loosed if the heirs special may be comprehended and so served under the common Title of heirs whatsoever How far heirs of Tailzie or Provision may alter the Tailzie of the Fee or affect or burden the same is largely considered Title 13. § 58. which therefore needs not here be repeated 13. The common Interest of heirs passivè is that they are lyable for their Predecessors Debts for they are repute in Law as one Person with their Predecessors and so represent them not only active in their Estates and Goods but also passive in their Debts and Burdens Quem sequuntur commoda eundem incommoda sequuntur and this is common also to Executors as being heirs in the Moveables but as the Executors succeed only in Moveable Rights active so they succeed only in Moveable Debts passive yet the Creditor hath his option to pursue either or both of them whether the Debt be heretable or moveable and the heir hath relief against the Executor in so far as he is distressed for Moveable Debts so hath the Executor releif against the heir of the heretable Debts March 7. 1629. Falconer contra Blair Spots Executors Laird of Carnousie contra Meldrum But heirs and Executors differ in this that the Executor is only lyable secundum vires inventarli according to the Inventar of the confirmed Testament unless he disorderly intromet with more but the heirs are lyable in solidum though the Debt far exceed the value of the Estate Heirs are lyable for their Predecessors Debts but not all the same way First Heirs portioners though jointly they be lyable for their Predecessors Debts in solidum without benefit of Inventary yet severally each Heir-portioner is regularly lyable but pro rata parte though the proportion whereunto they succeed be more then the whole Debt February 7. 1632. Hoom contra Hoom. Spots Improbation Laird of Laars contra Dunbars John Duncan and the heirs of John Ogilvy 14. Yet one Heir-portioner was found lyable in solidum as Successors in his whole Estate by disposition post contractum debitum though there were other two Sisters the one of whom being called renounced the Pursuer condescending upon nothing unto which she could Succeed and the other having no means but being called passive Feb. 15. 1634. Peter Orr contra Elizabeth 〈◊〉 Neither did it avail that the other Sisters had received portions of money near to the value of the Estate by the Father in his Life but Action of Relief was reserved against them as accords March 21. 1634. Inter eosdem The reason thereof adduced is that the getting Portions in Money could be no 〈◊〉 〈◊〉 and so could not make the Receivers Lucrative Successors 〈◊〉 contractum debitum as the Disposition of the Lands doth Yea an heir portioner being convened without the other was found lyable in solidum because the other was found not solvendo and had disponed all right to the Defender January 29. 1642. Scot contra Hart. But here the matter was but of small moment and this was a doubt in the first Decision in this Case if some of the heirs Portioners should be insolvendo whether or no recourse might be had against them that were solvendo at the least to the value of their proportion which though it seem Equitable and is favoured by this last Decision yet it is not decyded in the former neither have I observed it decided since but in the pursuit Decem. 23. 1665. at the instance of Dam Rachel Burnet now Lady Preston contra Sisters of her first husband The Lords only discerned against the heirs portioners pro rata but with Reservation to the Pursuer to Insist and Dispute her Right against any of them for more if any of them proved insolvent But it seems the Portion of the insolvent would not reach the solvent above the value of their Succession Because the only ground they could be lyable on for more then their part would be in quantum lucrantur For as heirs they could not be lyable in solidum neither by our Law nor the Civil Law And if the Creditors Taciturnitie whereby the other heirs became insolvent did appear it would prejudge the silent Creditor and not the heir who did not know the debt and so could not prevent the others Dilapidation 15. There is a case occurreth oft-times amongst heirs Portioners when Several Obligations and Provisions are granted in their Favours by the Defunct whereby after his Decease they become mutual Debitors and Creditors and sometimes these Provisions exceed the Estate quid juris whether do these Obligations evanish and become extinct confusione because the same Persons become Debitors and Creditors or whether they do all stand and in that Case whether the first in Order will be preferred or if they all will be abated proportionally to the value of the heritage Thus Maitland observes December 20. 1550. That a Father Infeft