21. 1663. Henry Hamiltoun contra William Hamiltoun Which holds olso in Adjudications by the late Act of Parliament come in place of Appryzings But Securities for sums have Been of a long time taken frequently in another way viz. by simple alienation titulo venditionis with a reversion which is but 〈◊〉 de retro vendendo ordinarly taken a part that if the Creditor were not satisfied he might force the debitor to pass from his Reversion and so his Reversion stood absolutely which gave the occasion to these Kinds of Securities and also because during Popery all Annualrents for the use of sums were discharged as Usury and therefore Creditors bought Annualrents and gave Reversions to the debitors which was the same thing in another convoy As to these Wodsets in this place and that first as to the Constitution of Wodsets And next as to the destitution thereof 2. As to the Constitution of a Wodset it must be according to the thing or Right impignorat for a Tack or Liferent An Assignation to these or any other cessible right may be given in Wodset for security and under Reversion But the ordinary Wodset is by Infeftment of Property or of Annualrent the conception whereof is not under the name of Impledging Impignoration Hypothecation or the like but in the terms of Disposition or Infeftment whereby the property of the thing Wodset passeth and is established in the Wodsetter But under Reversion to the Constituent whereby it hath two parts the Infeftment and the Reversion The Infeftment in Wodsets is in all points like to other Infeftments whether they be Infeftments of Property or of Annualrent or whether they be publick holden of the Constituents Superior or base holden of himself so that all the specialities of Wodsets resolve in Reversion 3. A Reversion is a paction and condition or provision for redemption of any thing alienat upon such Terms as are agreed upon which of it self is no more then a personal obligation whereby the Wodsetter is oblieged until by that excellent Statute Par. 1469. cap. 27. It is declared that the Reversion shall be effectual not only against the first Wodsetter himself but all his Successors in the Wodset Lands whereby reversions are accounted as Heretable and real Rights affecting singular Successors in the same way that Tacks are made real Rights by the Statute thereanent The English by reversion do not understand a Right of Redemption but a Right of Survivancy or Succession as the reversion of an Office is a Title to that Office after the removal of the present Incumbent And that which we call a Wodset they call a Morgage for a Gage is a Pledge which is really ingaged And Morgage is a Pledge the Redemption whereof dieth or is extinct if it be not used at the time and in the manner agreed upon by the parties of that with them in their Morgages not only Clauses irritant or 〈◊〉 legis Commissoriae are valide But if the provision for Redemption be for a definite time that being elapsed the Morgage becomes irredeemable by their common Law what remeid may be had in the Chanclery upon equity I know not 4. Before we come to the Solemnities requisite for Constituting Reversions it is necessary to distinguish the several kinds thereof Reversions are either Legal arising from Law and Statute and not from consent of parties as are the Legal Reversions of Appryzings and Adjudications or they are Conventional by the consent of parties which are either Incorporate in the body of the Wodset-right or a part they are also either principal Reversions or eiks to Reversions and they are either solemn and perfected or only inchoat such as Promises Bonds and Conditions for granting Reversions 5. Legal Reversions require no other solemnity then what is requisite to the legal constitution of the right whereupon they follow The common solemnities requisite for Reversions and other Writes of old was only the Seal of the granter without necessity of his Subscription But by the Act of Par. 1555. cap. 29. It is required that all Reversions Bonds and Obligations for making of Reversions be not only sealed but subscribed by the granters own hand and if he cannot write by his hand led at the pen by a Nottar or otherwayes they make no faith unless the same by consent of parties be registrat in the Books of a Judge Ordinar or that it be a Reversion within Burgh contained in the Instrument of Resignation and Seasine of Lands by the Bailie and Town-clerk And by the Act of Par. 1579. cap. 80. Reversions Assignations and Discharges thereof and eiks thereto or other Writes of great importance are ordained to be subscribed and sealed by the principal parties or if they cannot write by two Nottars before four designed witnesses else to be null and of no faith But the matter of Reversion is perfected by the Act of Parliament 1617. cap. 16. ordaining all Reversions Regresses Bonds or Writers for making Reversions Assignations and Discharges of the same to be registrat in the Register of Seasines and Reversions within sixty dayes of their dates otherwayes to have no effect save only against the granters thereof but not against their singular successors acquiring perfect and lawful Rights But this is not requisite in Infeftments of burgage-Burgage-lands within Royal Burghs nor in Reversions incorporat in the rights of Wodset Upon consideration of the inconvenience insecurity of burgage-Burgage-lands the Lords by Act of Sederunt ordained the Burghs to take sufficient Caution of their Town-clerks present and to come to insert in their Books all Seasines given by them of Tenements within Burgh and all Reversions or Bonds for granting Reversions Assignations thereto and Discharges thereof Renunciations and grants of Redemption and that within sixty dayes after the giving of Seasine or presenting to them of the Reversions or others foresaids under the pain of the damnage of parties acquiring bona fide for onerous causes that they may incur by such latent rights declaring that such Seasines and Reversions not insert in manner foresaid to be esteemed as latent and fraudulent keeped up of purpose to insnare lawful purchasers which Act of Sederunt is dated February 22. 1681. So that as by the first Act Reversions are made effectual by this last they are made evident that acquirers may be secured against latent Reversions and by the registration or being in the body of the Wodset the necessity of sealling is taken off and for the most part in desuetude It is also consequent from this last Act that not only formal and solemn Reversions in the body of the Wodset or registrat are effectual against singular successors but also Bonds and Writes for making of Reversions otherwayes there needs no ordinance to registrate these for the purchasers security if of themselves they could affect purchasers But promises of Reversion are no wayes effectual against singular successors unless they have been brought into write at least by Decreet before these
Water rising in Fountains there drying of Nets erecting of Tents and the like Yet doth the Shoar remain proper not only as to Jurisdiction but as to Houses or Works built thereupon and as to Minerals Coals or the like found there and so is not in whole common but some uses thereof only Nor doth it follow that these uses are not common to all men because they are denyed to enemies for as for these we may take away that which is in their power in some cases so much more may we detain from them that which is ours and as we pursue their Persons and Goods in their own much more in our bounds The Shoar in the civil Law is defined to be so far as the greatest Winter Tides do run Inst. de rerum divisione § 11. which must be understood of ordinary Tides and not of extraordinary spring Tides But the use of the Banks of the Sea or Rivers to cast Anchors or lay Goods thereon or to tye Cables to Trees growing thereon or the use of Ports which are industrial or Stations made by Art or fortified for security are not common to all men but publick to their own people or allowed to others freely for commerce or in some cases are granted for a reasonable satisfaction of Anchorage Portage or other Shoar dues which oftimes belong to private persons by their proper right or custom or by publick grant So also Ways or Passages in the Land are common to all and may not be justly refused by one Nation to another and being refused have always been accompted lawful to be forced as Plutarch relates of Simon who going to Lacedemon forced his passage through Corinth And Agesilaus returning from Asia craved passage through Macedon and while they craved time to consult of an answer he conceiving delay to be a denyal said consult you but I will pass but to take away all questions whether these were by might or right we have a divine Example of Moses Numbers 20. Verses 17 and 19. where Israel in their way to Canaan craved passage of Edom by the high ways and offered payment even for their Water which was to be understood of their standing Water as Wells which were rare and precious there and did the like with the Ammonites and upon refusal forced it by War There is also in Property implyed an Obligation of Commerce or Exchange in case of necessity for without this property could not consist seing by the division inferred there through every man cannot have actually all necessars without Exchange which being denyed in cases of necessity or where there is no common Authority may be taken by force as these who pass through the Territories of others if by their opposition or otherways they be short of provision they may lawfully take the same for Money as is implyed in Moses offer to Edom yea there is implyed in property an Obligation to give in cases of necessity to these who have not wherewith to exchange and cannot otherways preserve their life but with the Obligation of Recompence when they are able for humane necessity doth also infer this but it must be a real and not a pretended and feigned necessity So David being hungry eat the Shew-bread though appropriat to God And the Disciples being hungry eat the Ears of Corn and this is the ground of the Obligation to aliment the poor which though it also floweth from the Obligation of Charity yet as hath been spoken before that Obligation hath no determinat bounds but is left to the discretion of the giver not of the demander and so can be no warrand for taking by force and without consent 7. The Community that is of Grass and Fruits growing upon the high-ways followeth the Community of the ways themselves But the common use of natural Fruits brought forth without industry even in proper Fields as of Nutts Berries or the like Or the promiscuous use of Pasturage in the Winter time accustomed in many places of Scotland are no part of this Community but are for the most part permitted as of little moment or disadvantage and therefore may be denyed without injury 8. The second step of real Rights is Possession which as it is the way to property and in 〈◊〉 cases doth fully accomplish it so it hath in it a distinct lesser Right then property which hath no other name then Possession though it be more facti then juris And seing Possession is a common precognit to the most of real Rights it fitly falleth in here to be considered both as it is a Fact and as it is a Right for as it is a Fact it is not only requisite to constitute real Rights but is also an effect thereof when constitute 9. Possession hath its name from its special kind for it is as much as positio sedium expressing the way of Possession of the Earth at first common by Families Nations or Persons by fixing or settling their Seats or Habitations there evidencing their affection and purpose to appropriat these Seats which therefore was not understood by their passing through it but by fixing in it and therefore Territories of old were called Possessions That we may take up aright the nature of Possession wherein it doth consist and how it is begun continued interrupted and lost we must first distinguish the several kinds of Possession And secondly collect the common nature wherein they agree And thirdly the point of Right thence arising As to the First The reason why the kinds and distinction of Possession are so much multiplied is because by positive Law and the custom of Nations Property and Servitude cannot be constitute but by Possession though it be not natural or necessary to these Rights but by the will and constitution of men therefore it receives diversification at their pleasure 10. So what men think fit to call or esteem Possession is enough to constitute Property seing without any thing such it may be constitute as afterward appears Hence ariseth the distinction of Possession in Natural and Civil the former being that which is and the latter that which is holden or repute such under which there are degrees as it cometh nearer to the natural Possession we shall proceed in order from the more plenary and plain Possession to these which are less clear 11. First then the clearest Possession is of Moveables and it is the first possession that was amongst men for so did the Fruits of things become proper and thereafter Ornaments Cloathes Instruments and Cattel become proper the possession whereof is simple and plain holding and detaining them for our proper use and debarring others from them either by detaining them in our hands or upon our bodies or keeping them under our view or power and making use of them or having them in fast places to which others had no easie access This possession of Moveables was so begun and continued and by contrary Acts interrupted and lost when others exercised the same
removed therein and their Possession needs not again be proven and their defences hindering the pursuer to obtain Possession would not be sufficient unless they offer to prove the pursuer himself was in Possession or others by his warrand June 19. 1610. Hector Monroe contra Laird of Balnagoun Neither will any other thing but real obedience by giving or at least offering the void Possession take them away though the Land lye waste But violent profites were also found competent against these who were not warned against whom Decreet of removing was not obtained to wit against any who suspended the Decreet and thereby hindered the defenders attaining Possession Hope Mails and Duties Ker of Fairnieherst contra Turnbul Yea a party obtaining Possession by a Decreet of removing after Litiscontestation in the reduction of the Decreet was found a violent Possessor and lyable to violent profites himself Hope Possession Gordon of Abergeldie contra Lord Forbes As to the quantity of violent profites by the custom of Burgh it is double Mail of the Tenements within Burgh Hope Mails and Duties Christian Buchan contra Marion Seaton But in Lands it is the greatest profites that the pursuer can prove he could have made And though in cases of violence the quantities and prices are ordinarly probable by the pursuers oath juramento in litem because he ought to have not the ordinary price but praetium affectionis as that which themselves accounted to be their loss yet here probation must be used But if it be not full the pursuers oath may be taken Violent profites are also sustained against all Defenders in solidum as in Spuilzie but when diverse compeared and proponed partial objections against removings and succumbed they were found lyable for the violent profites of the Lands in the exceptions severally Hope Mails and Duties William Wallace contra Alexander Blair Otherways partial exceptions are not here competent Hope exceptions Laird of Balnagoun contra Hector Monro Neither will any exception be admitted which was competent and proper in the Decreet of removing relative to Right or Possession But Suspension or Reduction ought to be intented thereupon The like as to violent profites against successors in the Vice March 22. 1623. Laird of Hunthil contra Rutherfoord 55. Succeeding in the vice is a kind of intrusion whereby after warning any person comes in possession by consent of the parties warned Or otherways against such there needs no warning but a summar Process as in other intrusions having the same probation for in both the possession must be proven which with the warning is sufficient but can have no effect till Decreet of removing be obtained against the Tennent warned Though Violent profites be the ordinary effect both in removing and succeeding in the Vice These will proceed as to attaining possession and no violent profites be obtained when there is any colourable Title which might have made the warned partie reasonably doubt of the pursuers interest or of his own Right Hope removing Walter Ord contra Tennents But this useth ordinarly to be so provided in the Decreet of removing and will be hardlie sustained thereafter by recanvassing the defences competent in the removing that it may appear whether there were a probable ground in them or not at least the defender would protest for the reservation as to the violent profites for if this were again sustained it would bring over-head all the many intricat defences competent in removings of which formerly And therefore in the removing pursued by the Earl of Argile contra Mcnaughtoun the Lords repelled the defences but declared that they would have consideration thereof as having probable ground to debate and would modifie the excrescence of the violent profites over and above the ordinary profites TITLE XX. WODSETS Where of Reversion Regress and Redemption 1. Infeftments for satisfaction of sums Principal and Annual or for relief are proper Feudal Impignorations consisting with the Disponers property 2. The Nature of Wodsetts 3. The Nature of Reversions 4. Kinds of Reversions 5. Solemnities requisite in Reversions 6. The effect of Clauses irritant in reversions 7. Reversions are stricti juris 8. Kinds of Wodsetts 9. Proper Wodsetts 10. The effect of Tacks after redemption containedin reversions 11. Improper Wodsetts 12. Regress 13. Discharges of Reversions 14. Wodsets become legally extinct by declarator of expiring thereof or by the order and declarator of redemption 15. The order of redemption of Apprizings or Adjudications 16. The order of redemption by conventional reversions 17. Premonition 18. Consignation 19. Declarators of redemption 20. The effect of declarators of redemption 21. Defences against declarators of redemption 22. Requisition 23. How far other rights may be reserved in redemptions or renounciations AWODEST as the word insinuats being the giving of a Wedd or Pledge in security it falleth in consideration here as the last of Feudal Rights For Pledges are the last of real Rights as before in the Title real Rights is shown where it was also cleared what was the ancient custom of Impignoration of Moveables which shall not be here repeated but only what is proper to the impignoration of Immoveables and Heretable Rights by the Feudal Customes and our own 1. That which doth most properly agree to the nature of a Pledge or Wodset with us is where any Inseftment or security is granted in security of a sum of Money or for relief of Cautionry or any other sum which bears expresly that the Land or Right is disponed for security or relief and therefore needs express no Reversion for it is necessarly implyed that so soon as relief or satisfaction is obtained the Infeftment granted in security ceasseth so that if the granter of the Infeftment or any other bound in the principal Obligation either make payment or the receiver thereof by his intromission be satisfied ipso facto the Infeftment is extinct Yea if the debitor granter of the Infeftment and Security should instruct compensation as it would extinguish the principal Bond so would it in consequence the Infeftment for security thereof This Infeftment being really a Pledge it is consistent with the Infeftment of Property in the debitor as two distinct kinds of Rights and thereby the debitor is not denuded even although the Infeftment for Security were publick by Resignation because it is not a Resignation simply in favorem but ad effecsum viz. for Security and therefore when the debt is satisfied the debitor needs not be re-invested but his former Infeftment of property stands valide Like unto these in all points are Infeftments upon Appryzing which are truly pignora praetoria whreby the debitor is not denuded but his Infeftment stands and if the Apprising be satisfied within the Legal it is extinguished and the debitor needs not be re-invested and therefore he may receive Vassals during the Legal and if he die the appearand Heir intrometting with the Mails and Duties during the Legal doth thereby behave himself as Heir as was found February
Cheislie Feb. 21. 1666. Lord Borthwick contra his Wodsetters Feb. 21. 1666. Ogilvie contra 10. But where in Wodsets there is a condition of the Neversion that a Tack should be granted for years after redemption that Tack was not found taken away by the Act Debitor and Creditor but that if it were in the terms of the old Act Par. 1449. cap. 19. far within the true avail it were usurary and null February 15. 1666. Lord Lie contra Porteous February 17. 1672. Douglass of Mortoun contra and Verner In which case the Tack was sustained if it were not much within the worth of the Land as it was the time of granting the Wodset albeit it were much within the worth the time of the redemption because there is a just design in such Tacks to incourage the Wodsetter to meliorat the Wodset Lands and be at expences therefore seing he will retain the same after the Redemption for the old rent they were worth when wodset and the rent exprest in the Tack will be presumed to be the true rent unless the contrary be proven But such a Wodset granted to a Brother for his Portion wherein the Wodsetter was excluded from possession during a Liferenters life the Tack was sustained Jan. 21. 1662. Laird of Polwart contra Home 11. But if there be a Back-tack of the Land granted by the Wodsetter to the Reverser or for his behove or a Provision to count for the profites of the Land or to hold the Land at such a Rent it is an improper Wodset 12. A publick Wodset which is holden of the constituents Superior requireth beside the reversion a regress which is an obliegement upon the Superior to receive and enter the reverser his vassal again upon the redemption The necessity whereof is because by the Infeftment though of Wodset the constituent is denuded and the Superior hath a new Vassal in whose place he is not oblieged to accept any other but by his own consent Craig lib. 2. dieges 6. moveth this question Whether a publick Wodset being redeemed and the Reverser re-seased therein it would be accounted Heretage or Conquest And though it seem Conquest because it is a new Infeftment and not the old yet he well resolveth that if it return to the person or heirs of him who was first infeft if it was Heretage before it remaineth so but if an Assigney to the Reversion and Regress be insest it is truly Conquest 13. It remaineth now to consider the destitution of Wodsets and how they cease and this is either by consent or by Law by consent either when the Reversion is discharged whereby the Infeftment becomes irredeemable and ceaseth to be a Wodset which Discharge of the reversion is not effectual against singular successors unless registrat conform to the said Act of Parl. 1617. cap. 16. Or otherwayes by voluntary redemption of the Wodset which must be registrat by the said Act or else it prejudgeth no singular successor yet it is not effectual to denude the Wodsetter unless if the Wodset were base there be a resignation ad remanentiam in the reversers hands as Superiour or if it be publick that the granter of the Wodset be re-seased and a renunciation without a new Infeftment is not sufficient Hope Alienations Kinross contra Durie November 23. 1627. Dumbar contra Wilson But if the reverser or his predecessor was infeft a renunciation may exclude the renucers Right but will not establish it in the person of the Reverser but he must brook by his own right Hope Alienation Hamiltoun contra Mcaddam where Wodsets are taken holden of the Superior Regresses are also taken from the Superior and new Infeftment thereupon to the granter of the Wodset But when Neversions are carried by Assignations Apprisings or Adjudications to these who were never infeft they must not only have a renunciation from the Wodseter but a Procuratory of Resignation that thereby they may be infeft in which case the Wodset-right is not extinct but conveyed and the Wodsetter is their Author and may not resuse Procuratories of Resignation or Charters for Confirmation upon the redemption And if the wodset-lands be not ward he must grnt Precept of Seasine for infefting the reverser holden of the Wodsetter and if Infeftments follow thereupon and the Seasine be registrate there is no necessity to registrate the renunciation or grant of redemption so that a renunciation or grant of redemption being registrate excluding posterior Deeds of the Wodsetters who yet continues in the Fee and the Casuality will fall by his Death or Deeds Voluntar Redemptions are not so safe being used against Pupils and Minors whose Tutors and Curators ought to proceed Legally in Infeftments So likewise in a Wodset to a man and his wife and their heirs A voluntar Redemption by the husband was not found sufficient to to prejudge the wife who consented not July 14. and 17. 1610. Lord Cathcart contra 〈◊〉 14. Wodsets are taken off Legally when the Reversion is Legally annulled as by declarator of expyring thereof for thereby the Infeftment becomes irredeemable but is chiefly by a Legal Redemption which doth require an Order of Redemption and a declarator thereupon which must be diversly used in Legal-reversions and in Conventional-reversions 15. The Order of Redemption of Apprizings and Adjudications by vertue of the Legal Reversion is valide by Premonition and Consignation and Instruments taken thereupon wherein there is not appointed a determinat time upon which the Premonition must be made or a determinate place where the Consignation must be made nor the person of the Consignator but the premonition may be upon any number of dayes sufficient for the Consignation Yea though it were the same day of the Premonition as Craig observes But if the Creditor be personally apprehended the Consignation must be in the way most to his advantage which therefore he may prescrive being either near the place of Premonition or the Lands Wodset or the Paroch Kirk where they lie which Craig accounteth competent places or if he choose any other more advantages to the Consigner it will be sufficient But if he choose none the Premonisher must either Consign that day where he finds the Creditor or if not that day Or if he used Premonition at his dwelling-house he must Consign either at the Appryzers dwelling-house or Paroch Kirk where the Lands lye as said is if the Creditor be out of the Countrey or have no certain abode Letters of Premonition will be obtained from the Lords periculo petentis for Premonition upon sixty days at the Cross of Edinburgh and for Consignation to be made in Edinburgh Yea the Order was sustained for redemption of an Appryzing near expyring albeit the Consignation was only at Edinburgh and not at the Paroch Kirk where the Lands lay or at the debitors dwelling-house he being out of the Countrey Feb. 22. 1631. Murray contra Lord Yester But where the party was in the Countrey this Order by summonds of
Parliament 1617. But even Wodsets cannot be transmitted without resignation 9. But where it is said that the resignation must be by the Vassal or his Procurator this question ariseth if the Assignation be made by him who is not truely Vassal but with consent of the true Vassal quid juris Craig lib. 3. dieg 1. shows that in his time this question was not clearly determined nor is he positive in it but this far if the resigner had no Title no consent could be sufficient yet if he had a colourable Title the consent of the true Vassal might validate it If the true Vassal be consenter to the Procuratory of resignation either expresly bearing that the disponer with consent c. constitute his Procurators Or if he be consenter to the disposition by being exprest in the entry thereof which is holden as extensive to the whole disposition and so as repeated in the same will be as valide as if the consenter himself had granted the disposition or Procuratory for the Act of the disponer though more express and amplified is no more but his consent and so the other consenting doth the same materially which he would do if he were disponer formally but if his consent be adhibite after the resignation is made it is meerly personal and cannot have influence on the resignation which was before it or if he but permit or give license to the disponer or which is alike if he consent that the disponer dispone in so far as may concern the disponers right these will not be sufficient warrand for the resignation but if he give warrand or consent to the resignation it is sufficient neither is there neces sity to distinguish whether the disponer have a colourable Title or not se ing it is the consent of the true Vassal and the resignation as flowing from and warranted by that consent which transmitteth the right and therefore an Infeftment of an annualrent granted by a person not Infeft was found valide because a consenter thereto was Infeft and so it did exclude a valide right flowing from that consenter to a singular successor thereafter viz. a Tack Decem. 15. 1630. Jean Stirling contra Tennents 10. Resignation how necessar soever to transmit an Infeftment yet because the Procuratory and Instrument of resignation may be lost therefore the Vassal possessing fourty years by vertue of an Infeftment mentioning such a resignation the same will be valide without the production of the procuratory or Instrument of resignation which therefore is presumed thence presumptione juris Par. 1594. cap. 214. 11. As to the effect of resignation there is no doubt but when the same is truely made and Infeftment follows conform the resigner is fully divested and the acquirer is fully invested and if there be conditions or provisiions whether bearing express clauses irritant that the acquirers Infeftment shall be null and the disponers Infeftment shall revive or he have regress how far these are effectual till by resignation or judicial process the same be recovered is more fully cleared before Title Infeftments It is no less evident that before resignation be made the disposition or procuratory operats nothing as to the real right which notwithstanding remains fully in the disponer though he be personally oblieged to perfect it albeit there be no such express obliegement in the disposition yet by the nature thereof the disponer is oblieged to Infeft himself if he be not Infeft and to Infeft the acquirer Hope alienations William Gladstanes contra Laird of Mckerstoun Yea the disposition of property being accomplished carrysall real right of the Land or Bonds for granting real right in favour of the disponer or his authors neither assigned nor mentioned in the disposition July 1. 1623. Craigy Wallace contra John Chalmers Yea a liferent carryeth the reversion in the disponers person as to the Liferenters Liferent use that ther eupon he might redeem a Wodset So likeways a disposition of Lands immediatly before a Term not expressing an Entry nor Assignation to the rent was found to exclude the disponer therefrom though Infeftment followed not till after the Term Spots Mails and Duties Andrew Caldwal contra Robert Stark And generally it carrys Mails and Duties as including virtually an Assignation thereto July 15. 1629. Inter eosdem And though the Disposition or Procuratory cannot constitute a real right yet it doth sufficiently exclude the Disponer or his Heirs from troubling the Acquirers Possession thereupon 12. The Main question then is what is the effect of a resignation when done and accepted by the Superiour and no Infeftment following thereon where in that case the right standeth whether in the Disponer Acquirer or Superiour and whether the resigner be fully thereby denuded or if he may not grant a second resignation whereupon the first Infeftment being recovered will be effectual This is very learnedly debated by Craig in the forementioned place where he sheweth that the common opinion was that the second resignation with the first seasine will be preferred though the Lords had decided otherways in the case of a Citizen of Perth who making a second resignation in favours of his Son though after the first resignation by the space of twenty years yet Craig approveth the old opinion concerning the resigner never to befully divested till the acquirer were invested this is clear that by the resignation the Fee falls in Non-entry ' and is in the superiours hands and while the resigner resigning in his own favours bereceived or the resignation past from Or otherways the acquirer be infeft the superiour hath the Non-entry duties of the Lands resigned if the Infeftment be not delayed through his own fault It is also clear that by the superiours acceptance of the resignation in 〈◊〉 there is upon him a personal obligation to Infeft that person in whose favours the resignation was made and therefore though the resigner dieuninfeft his heir by a single service hath right to that asother personal rights and thereupon may compel the superiour to infeft him yea as Craig observeth in the fore-cited place the Lords upon supplication without Citation will grant Letters summarly upon sight of the Instrument of resignation and warrand therefore to charge the Superiour to Infeft the party in whose favour it was made who may not receive another resignation or nfeft an other party or else his obliegement may make him lyable to the obtainer of the first Resignation pro 〈◊〉 inter esse if he be not in mora in doing diligence to get his new Infeftment expede recenter but the real right will be carryed by the first Infeftment though upona posterior Resignation and so posterior Decisions go along with Craigs opinion not only in the case of the first publick Infeftment upona second Resignation but which is much more after a Resignation made a base Infeftment flowing thereafter from the Resigner and being but a short time before the publick Infeftment upon the Resignation yet was preferred
his Marriage which was dissolved within year and day by the Wifes death was found void seing the Father persisted not therein but Infeft his second Son July 15. 1678. Lord Burley contra Laird of Fairny And a Tocher payed within the year was 〈◊〉 to be repayed without any Deduction for the Wifes intertainment during the Marriage but only for her Cloathes which were before the Marriage and her Funeral Charges which was after the Marriage was Dissolved February 23. 1681. Janet Gordoun contra Thomas Inglis But Gifts given to the Married Persons by the Friends of both were divided equally the Marriage being dissolved within year and day January 14. 1679. Wauch contra Jamison But if a living Child was born the Marriage was found valide though both Mother and Child died within the year Spot Husband and Wife Stuart contra Irving The reason why the Child must be heard cry is to make certain its lively ripeness and not to leave it to the conjecture of the Witnesses and therefore it sufficed not though they did declare that the Child was living immediately before the Birth and appeared lively and full ripe when it was born but that it was stifled in the Birth as was found in the case of Sandelands and Thores yet a Wifes Infeftment was found valid till her Tocher was repayed though the Marriage Dissolved within the year July 20. 1664. Petrie contra Paul But where a Marriage continued a year and a part of the next day after the year the Tocher was found not to return Nam in favorabilibus dies ceptus habetur pro completo February 25. 1680. George Waddel contra George Salmond 16. Marriage Dissolveth by Divorce either upon wilful non-adherence or wilful Desertion or by Adultery and the party injurer loseth all benefit accrueing through the Marriage as is expresly provided by the foresaid Act of Parliament concerning non-adherence 1533. cap. 55. But the Party injured hath the same benefit as by the others Natural Death as was found March 21. 1637. Lady Manderstoun contra Laird of Rentoun But if Divorce follow upon Impotency all things return hinc inde because in effect there was no Marriage as was found Earl of Eglintoun contra Lady Eglintoun 17. By the Dissolution of Marriage there ariseth to Married Persons not only these Rights which by voluntar Contract are Constitute to either and which are not proper here but also these which by Law and Custome are Competent without any special Convention or Covenant and these are either upon the part of the Husband or more frequently upon the part of the Wife To the Husband is Competent the Life-rent of the Wifes Heretage which because it is peculiar unto these Nations it is said to be the Courtesie of Scotland or England To the Wife ariseth her share of the Moveables which is the half where the Man hath no Children in familia and the third where there are such and her Terce which is the third part of his Lands during her Life But of Reversions Heretable Bonds Dispositions or Rights of Lands without Infeftment and of Teinds or Tacks or Tenements within Burgh the Relict hath no Terce These Rights of Terce and Courtesie fall in to be considered amongst the Feudal Rights and the Relicts third or half of Moveables in the Succession of Moveables wherein it is a Concomitant and regulat according to that which is proper Succession either of Children or others though as to the Wife it be rather a Division of that Community of Goods Moveable that was Competent to the Married Persons during the Marriage and therefore shall be insisted on no further here but left to these places And we shall proceed to the next kind of Obediential Obligations and Natural Rights which interveen betwixt Parents and Children Law and Custome hath favoured and priviledged Wives in many cases propter fragilitatem sexus they are free from obliegements for sums of Money and from personal Execution by Horning or Caption if it be not for Criminal Causes their Contracts of Marriage are preferable to other Personal Creditors February 8. 1662. Thomas Crawford contra Earl of Murray their share of their Husbands Moveables is not burdened with the Husbands Heretable Debt December 28. 1668. Margaret Mckenzie contra Robertsons July 19. 1664. Elizabeth Scrimzour contra Murrays yea gratuitous moveable Bonds granted by a Husband payable at his death whereby the whole Executry would be exhausted and the Wife have no share having no other provision the same were not found to affect the Wifes share But otherways such Bonds granted in Leige Poustie without fraud were found to come off the hail Head and not off the deads part only December 8. 1675. Thomson contra Executors of Eleistoun And a Wife was found not excluded from her share of her Husbands Moveables by a gratuitous Disposition by her Husband to his Brother of all sums that he should have at his death January 10. 1679. Grant contra Grant In like manner the Infeftments and Provisions of Wives are effectual although the Tocher which is the mutual cause thereof be not payed she not being oblieged therefore her self though the Contract bore that the Tocher being payed it should be imployed to the Wifes use July 5. 1665. Mackie contra Stuart The like though the Contract bore that the Husband should imploy the Tocher for the Wife in Life-rent albeit the Tocher was lost through the Fathers Insolvency June 11. 1670. Margaret Hunter contra Creditors of John Peter The like though the Contract bore that the Wife should have no benefit while the Tocher should be fully payed if the Tocher could be recovered by the Husbands diligence November 21. 1671. Mary Menzies contra John Corbet On the same ground a Contract of Marriage bearing the one half of the Tocher to the Wife failing Children albeit conceived passive and not that the Husband was to pay the same or do diligence therefore yet the Husband was found lyable to pay the half of the Tocher although it was not recovered unless he had done the diligence of a provident man which was found implyed in his Duty and Trust as Husband the Wife being in potestate viri July 14. 1676. Jean Lockhart and Raploch her Spouse contra James Bonar And though Husbands have no communion in the Habiliments and Ornaments of the Wife which cannot be affected for his debt yet she hath her share of the Habiliments of the Husband which falls in his Executry and he is oblieged to pay all Accompts for her Habiliments suitable to her quality But where the Wife had an Alimentary Provision for her Habiliments Ornaments and her other Uses the Husband having furnished them and received that sum was not found lyable to repay the same to her Executours February 2. 1667. Executours of the Lady Piltoun contra Hay of Balhousie Wives have not only a half or third of their Husbands Moveables when they survive but have their Aliment till the next Term after the Husbands
Debitor whom the Creditor brought home from abroad that he might prevent the diligence of an other Creditor who had denunced that Debitors Lands to be Apprized upon sixty days but upon return of the Debitor this Creditor denunced upon fifteen days and so did first Apprize yet the first Denunciation and last Apprysing was preferred Hope de dolo Sir Hendry Wardlaw contra Thomas Dalyel And the Liferent Escheat of a Vassal was excluded because the Superior upon whose Horning it fell had taken payment of the Debt and had not acquainted the Vassal that he was Denunced that he might have relaxed within the year as was found in the same case Ibidem Though this case and that of latent insufficiency be rather lata culpa quae dolo equiparatur for the difference betwixt dolus lata culpa is that dole est magis animi and oftentimes by Positive Acts and lata culpa is rather facti and oftentimes by Omission of that which the Party is oblieged to show A Discharge was found null as to an Assigney to a Bond granted by one Brother to another the Discharge being of the same date with the Bond which could have no construction but that the Brother by assigning the Bond might deceive December 4. 1665. Thomson contra Henderson And a Discharge by a Son to his Father of a Sum provided to him by his Contract of Marriage without satisfaction But upon agreement betwixt the Father and the Son the time of the Contract that the Sum in the Contract should be Discharged gratis was found fraudulent and null as to the Sons Creditors who Traded with him even after the Discharge January 21. 1680. Isobel Caddel contra John Raith And a Liferent by a Husband to his Wife of his whole Estate providing she disponed the half to the Children of the Marriage was found fraudulent as to that half and the Creditors of the Husband preferred to the Children therein December 23. 1679. John Erskin contra Carnagies and Smith But where the Liferent was but suitable to the Parties a clause therein that so much of it should be applyed for the Aliment of the Children that clause was not found fraudulent in prejudice of the Husbands Creditors but was sustained to the Children it flowing only from the Mother November 16. 1668. Wat contra Russel 12. Under Fraud Simulation and Collusion are comprehended Simulation occurs mainly in two cases in Dispositions retenta possessione for although the Disposition be delivered and that there be Instruments of delivery of the Goods Disponed yet if the natural Possession be retained the Disposition is presumed simulat and others affecting the things disponed by Legal Diligence or by natural Possession are preferred Simulation in Gifts of Escheat and Liferent are very frequent and easily presumed retenta possessione Vide Tit. 25. § 12. 13. Collusion occurs chiefly when the Debitor or common Authour opposes some Creditors and concurs with others that these may attain the first compleat Diligences which imports direct Fraud or if he oppose one though he do not concur with an other but only not oppose that other his opposition is holden as Fraudulent 14. Fraud gives remeid by Reparation to all that are damnified thereby against the Actor of the Fraud either by anulling of the Contract or other deed elicit or induced by Fraud or by making up the damnage sustained by the Fraud at the option of the injured and so Fraud was sustained at the instance of a Seller to anull a Bargain of sale of Wines delivered to a Skipper upon the Buyers order because the time of that order the Buyer knew himself to be insolvent which might appear by his Books and though the Wines were Arrested by a Creditor of the Buyers in the Ship and a Decreet for making forth-coming recovered yet the Wines were ordained to be restored to the Seller December 22. 1680. Magnus Prince contra Peter Pallet 15. Reparation of Fraud is not only competent to the Party defrauded but also to his Creditors or Assignays for which the Romans had a peculiar remeid Per actionem Paulianam for anulling all deeds in fraudem Creditorum in imitation whereof the Lords of Session made an Act of Sederunt in July 1620. against unlawful Dispositions and Alienations made by Dyvers and Bankrupts which was Ratified by Act of Parliament 1621. cap. 18. By this Act of Sederunt the Lords declare that according to the Power given to them to set down Orders for Administration of Justice meaning to follow and practise the good and commendable Laws Civil and Canon made against Fraudful Alienations in prejudice of Creditors against the Authors and Partakers of such Fraud that they wil Decern all Alienations Dispositions Assignations and Translations made by the debitor of any of his Lands Teinds Reversions Actions Debts or Goods whatsomever to any conjunct and confident Person without true just and necessary Causes and without a just price really payed the same being done after contracting of lawful Debts to have been from the beginning null by way of Action or Exception without further Declarator but prejudice to purchasers of the Bankrupts Lands and Goods for just and competent Prices or in satisfaction of their lawful Debts from the Interposed Persons But the Receiver of the Price from the Buyer shall be holden to make it forthcoming to the Creditors and it shall be sufficient to prove by Write or Oath of the Receiver of the Disposition from the Bankrupt that the same was made without a true and just Cause or that the Lands and Goods being sold by him that bought them from the Dyver that the most part of the Price was converted or to be converted to the Bankrupts profit and use And in case the Bankrupt or interposed Person shall make any voluntar Payment or Right to any Person he shall be holden to make the same forthcoming to the Creditor having used the first lawful Diligence and he shall be preferred to the Con-creditor who being posterior to him in diligence hath obtained payment by the partial favour of the Debitor or his interposed Confident and shall recover from the said Creditor what he hath so obtained But what the interposed Person hath payed or assigned to the Bankrupts lawful Creditor before preferable diligence done by others shall be allowed to him and he shall be lyable to make forthcoming the rest of the price Yea the saids Bankrupts and interposed Persons and all others who shall give Counsel and Assistance in devising and practizing the Fraud shall be holden infamous incapable of Honour Dignity or Office or to be Witnesses or Assyzers This excellent Statute hath been cleared by Limitations and Extentions in multitudes of Decisions occurring since relating to defrauding of Creditors which being of the greatest importance for Publick Good and Security We shall distinctly and in order hold forth the several Cases that have been decided in this matter First then though the Statute be only in favours of anterior
The question is also moved here whether the thing Depositat may be detained for the necessary and profitable expenses wared upon it though Law and most Interpreters fovour the Negative upon the same ground that compensation is excluded but the Affirmative is preferred because as the contrary action is competent for the Melioration so much more the exception being a part of the same Contract and therefore the Lord Balmerino having by his own Missive and Back bond acknowledged that the Estate of Jedburgh was Disponed to him in trust to the behove of the Earl of Somerseat all the expense on the Land or for Somerseat in contemplation of the trust was found competent against Bedford who had adjudged Somerseat's Right And in all cases in the Law where Action is competent Exception is also competent and so with us if instantly verified Amongst the Romans there was an Edict of the Pretors in deposito to this effect that Depositars should be oblieged to restore or make up the single value But in things Depositat through the present occasion of Tumult Fire falling of Houses or Ship-wrack in the case of not due Restitution for the double l. 1. ff depositi wherein there is much utility to secure persons Depositating of necessity in these deplorable cases but it hath not been allowed by our Customs as yet 56. It may be questioned if any thing be Depositate to more Depositars whether they are lyable in solidum So that the Deponent may crave Restitution or Reparation from every one for the whole value or for his share only The Civil Law is clear for the Affirmative that all are lyable in solidum l. 1. § 43. eodem and upon good reason because it is fidelity in preserving one Individual thing that is undertaken which therefore de natura rei must obliege every person to the whole seing he is not oblieged to restore a part of the thing Depositat but the thing it self yet if the Depositars be all solvendo they are free paying their part the thing depositat being Money l. 22. si duo haeredes ff depositi but in this case there were not more depositars but more Heirs of a Depositar And in this Depositars and Con-tutors differ that the diligence of these even as to their Con-tutors being greater then of the other this being consequent to the nature of Depositation will no doubt be followed by us In deposito in the Law the Deponent hath beneficium juramenti in litem or to prove the particulars or quantities wanting and their value secundum praetium affectionis because of the exuberance of Trust in this Contract l. 1 § 26. ff depos but not the Depositar in the contrary action l. 5. eodem where the reason is added because there is no breach of Faith nor Trust but Damnage and Reparation in question The Depositar also detaining being condemned becomes infamous l. 1. ff de his qui infamia notantur Hence it is from this Trust that if a Chest or other continent sealed be Depositat action is competent for all that was therein shown or not l. 1. § 41. eodem and therefore in such cases the Deponents Oath in litem must be taken or else this Interest perisheth which is suitable to our Custome before mentoned in the case of Inn-keepers and there is good reason and equity pro pretio affectionis but I have not observed it questioned or decided This being a Contract of greatest Trust Restitution is to be made cum omni causa as Fruits and Birth and Annualrent post moram l. 2. C. depositi but Annualrent with us is not due sine pacto but may be made good by modification of expense by the Lords There is a frequent case of Depositation of Writes before delivery thereof which therefore suspende their effect until the Terms of the Depositation appear which is unquestionable by the Oath of the Party receiver of the Write both that the Write was not delivered but depositat and also upon what terms 57. Pledge either signifies the thing impignorat or the Contract of impignoration in the same way as Pignus in the Law is taken and it is a kind of Mandat whereby the Debitor for his Creditors security gives him the pawn or thing impignorat to detain or keep it for his own security or in case of not payment of the Debt to sell the Pledge and pay himself out of the price and restore the rest or the Pledge it self upon payment of the Debt all which is of the nature of a Mandat and it hath not only Custody in it but the power to Dispone in the case of not payment but if the profite of the Pledge be alloted for the profite of the Debt which is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 it is a mixt Contract having in it a Mandat and the exchange of the Usufruct or use of the Pledge for the use of the Debt 58. This Contract hath this special in it that it is not meerly to the behove of the Constituent as ordinarly Mandats are but it is to the behove of the Hypothecar for his security and so ends not with the death of either party nor is Revockable as other Mandats but passeth to Heirs and Assignays and therefore requireth greater diligence then Mandats viz. such diligence as prudent men use in their Affairs but obliegeth not for the lightest fault l. 23. ff de reg juris This is also singular in Wodsets or Impignorations that thereby there is constitute a real Right in the Pledge which no Deed nor Alienation of the Constituent can alter or infringe which is not so in Mandats or things Depositat neither in Location whereby there is only a Personal Right and if the property of the thing be Alienat from the Constituent the Personal Right hath no effect as to the thing about which it is Constitute but there is here a real Right of which hereafter among other real Rights 59. We shall not insist in the manner of the sale of Pledges prescribed by the Roman Law and the Intimations or Denunciations requisite to be made to the Debitor that being wholly changed by our Customes for in Wodsets of Lands the Wodsetter hath a Disposition of the Property but with a Reservation or Paction to sell back again to the Debitor upon payment of the Debt and so the Wodsetter cannot by vertue of the Impignoration sell the Lands and pay himself but all he can do is to affect the Wodset Lands by legal diligence as an other Creditor and if any other prevent him in diligence they acquire the Right of Reversion and no posterior diligence of his can take it away or capacitate him to acquire the full property of the Pledge or to alienate it simply to another The like is in the Impignoration of Moveables which cannot be thereby sold but the Creditor may affect them by his Legal Diligence by Poynding thereof 60. In Impignoration either of Heretable or Moveable Rights the
Law rejected pactum legis commissoriae which we call a Clause Irritant whereby it is provided that if the Debt be not payed at such a time the Reversion shal be void Our Custome doth not annull such Clauses but by Act of Sederunt November 27. 1592. it is declared that the Lords would decide in all Clauses Irritant in Infeftments Bonds and Tacks according to the express words and meaning thereof precisely yet the Lords allow such Clauses to be purged by performance before Sentence declaring the Clause irritant committed In which Process though it be committed long before yet by payment at the Barr it will be purged even though the Party after the irritancy get Possession Hope Clause irritant John Edgar contra Gordoun of Earlestoun Yea though the Wodsetter had obtained a Decreet of Removing two years after the failzie against which Reposition was granted paying all Damnage and Interest July 8. 1636. Cleghorn contra Ferguson And albeit the Money was not ready to purge at the Bar so that the Failzie was declared yet it was superceeding Extract for a time that it may be purged in the mean time February 7. 1628. Pringle contra Ker. But where the Requisition was on nine score days there was no time granted after the Decreet to purge July 19. 1625. Nairn contra Naper This Clause is so odious that it was elided by the Wodsetters Possession of a part of the Lands and thereby getting a part of the Annualrent March 18. 1629. Barcley contra Stevinson The like by accepting of payment of Annualrent after Failzie Hope Clause irritant Nasmith contra Kinloch The like by payment of Annualrent or by compensation therewith ibid. Barns contra Barcley The reason of the Law and our Custome is because Impignoration is a permutative Contract wherein equality is meant and required and Clauses irritant are redacted to equality respect is not had to the Terms and Expressions of the Contract but to the thing truely done and therefore though sale of Lands with Reversion be exprest yet if there be not a competent equivalent price and that it be not a real and proper sale but only a Wodset under that conception the Clause irritant hath no further effect then is before exprest but if it be a true sale and competent price the Clause irritant is not penal but hath its full effect but otherwise it is still purgeable till declarator which therefore is necessar even though the Clause irritant bear that the Reversion shall be null without declarator for the remeeding of the exorbitancy of such Clauses irritant 61. Impignoration is either express by the explicit consent of parties or implicit which is introduced by Law without consent of parties of such tacite hypothecations there have been many in the Civil Law as in the Ware for the price in Houses for expenses in Preservation or Melioration or for Money lent for that use to a Wife in the Goods of her Husband for her Tocher To Pupils and Minors in the Goods of their Tutors and Curators for their Duty and Administration to Pupils in the Goods of their Mother being their Tutrix or in the Goods of her second Husband if she did not make an accompt and procure a new Tutor before her Marriage to Legators in the Goods of Executors To the Fisk for their Tribute or their Contracts to Cities in the Goods of their Administrators But our Custome hath taken away express hypothecations of all or a part of the Debitors Goods without delivery and in the tacite legal hypothecation hath only allowed a few allowing ordinarly parties to be preferred according to the priority of their legal diligence that Commerce may be the more sure and every one may more easily know his condition with whom he contracts and therefore Goods sold were not found under any hypothecation for the price June 14. 1676. Thomas Cushney contra John Crystie Yet with us there remains the tacite Hypothecation of the Fruits on the Ground in the first place and they not satisfying the Goods on the Ground belonging to the Possessour for the terms or the years when the Cropt was on the Ground but not for prior or past years and therefore all Masters of the Ground or their Assigneys having right to the Mails and Duties have interest to recover the rents thereof from all intromettors with the Fruits Rents or profits thereof though upon a Title unless their Title be preferable or at least have the benefite of a Possessory Judgement This was extended to Intromettors though they bought the Corns which grew on the Ground in publick Mercat at Zule albeit the Heretor had Poynded a part of the Crop for the Rent of a prior year unless at the Term of payment Candlemas there were sufficient Fruits on the Ground to satisfie the Rent March 29. 1639. Dam Mary Hay contra Archibald Elliot Secondly It is extended to Intromettors with the Cropt and Goods of the Ground though they lawfully Poynded the same from the Tennants for their just Debts Nic. in quibus causis pignus c. Earl of Wintoun contra Barcley unless they left as much upon the Ground as might satisfie the rent besides the Houshold Stuff July 25. 1623. February 3. 1624. Hay contra Keith The like wherein the present Cropt was not accompted but left for the subsequent Rent of which the Terms were not come June 29. 1624. Polwart contra Thirdly It is extended that thereby the Master of the Ground may summarly stop Poynding unless sufficient Goods be left to pay the Rent beside the plenishing of the House February 3. 1624. Arrocks Bairns contra Keith Fourthly This is extended against the Donatar of the Tennants Escheat intrometting thereby who was found lyable though no Action was moved by the Master of the Ground for seven years in the said case Hay contra Keith The like is sustained as to the Goods of the Possessours of Houses invecta illata for House-mailes for all intromettors therewith are lyable and the Goods may be stopped from Poynding for the Possessours Debt without Deforcement being invecta illata But this extends only to one year or two Terms Mail December 7. 1630. Dick contra Lands But the Hypothecation of the Fruits of the Ground is greater then of the Tennants other Goods for the Fruits are lyable according to the value thereof for the rents though there remain other Goods sufficient to pay the Rents on the Ground seing there remained not sufficient Fruits to pay the same March ult 1624. Lady Down and her Spouse contra Laird of Down This Hypothecation of the Fruits for the Rent was extended to a Town setting their Customes even against the Sub-tacksman not bound to the Town who were preferred to the Tacksmans Creditors in a double Poynding January 31. 1665. Anderson and Proven contra the Town of Edinburgh It was also extended to the seller of Fishing against the Donatar of the Tacks-mans Escheat who was found lyable to restore
may be conditionally if the price be payed by such a day or if any other offer not a better Price in such a time or with condition not to sell without consent of which in order 65. As to the First Though giving of Earnest be very ordinary in Bargains of sale and others yet it is no less dubious what the Nature and Effect thereof is some holding it to be to the effect the Bargain may be evident and certain for though sale be perfected by sole consent yet it is not always evident to the parties and the witnesses whether it be a Communing or a Contract and therefore to make it sure to both Merchants who may not hazard upon dubious Interpretations do give Earnest as an evidence of the Bargain closed and perfected But others think that the effect and intent of Earnest is that the giver of the Earnest may resile from the Bargain if he please to lose his Earnest and the taker may resile if he return the Earnest with as much more The Civil Law l. 17. C. de side instrumentorum instit de empt vend in principio And many Interpreters seem to favour this construction Yet many Texts in Law adduced by Wezenbecius Faber and others are for the former opinion and they do Interpret the contrary places not to be of sale perfected but of an antecedent promise or paction to buy or sell It hath not oft occurred so far as I have observed to be decided with us which of these opinions is to be followed with us but the former seems to be preferable because ordinarly with us Earnest is so inconsiderable that it cannot be thought to be the meaning of the parties to leave the Bargain Arbitrary upon the losing or doubling thereof so was it found February 24. 1628. contra James Riddel To this also suits the sense that Earnest is taken in the Scripture for Evidence and Assurance making the matter Fixed and not Arbitrary which at least evinceth that the Word hath been anciently taken so whatever hath been the Custome and Constitution of the Romans 66. Reversion or the Paction of Redemption though ordinarly it is used in Wodsets which albeit they be under the form of sale yet in reality they are not such there being no equivalent price yet may it be where there is a true sale and this paction is no real quality or condition of the sale however it be conceived but only a personal obliegement on the buyer which therefore doth not affect the thing bought nor a singular Successor though Reversion of Lands and Heretable Rights be made as real and effectual against singular Successors when it is ingrosled in the Bargain or duely Registrate yet that is not by the nature of the thing but by the Statute and takes no place in other cases as in Reversion of Moveables which are sold under Reversion but if impignorat the Reversion is a part of the Contract and is effectual against singular Successors As to the other Pactions adjected to sale sometimes they are so conceived and meaned that thereby the bargain is truely conditional and pendent and so is not a perfect Bargain till the condition be existent Neither doth the property of the thing sold pass thereby though Possession follow till it be performed as if the Bargain be conditional only upon payment of the price at such a time till payment the property passeth not unto the buyer but there are many other adjections which are exprest under the name of Conditions and Provisions which are not inherent as essential in the Bargain But extrinsick personal Obliegements the existence where of doth not annual the sale or suspend or annual the property in the buyer at least in his singular Successors as hath now been said in Reversions and is frequent in many other cases 67. In Sale there uses to be adhibit a Clause irritant or resolutive Clause that if such a thing or Condition were or were not in that case the Bargain should be null and void as if it had never been made and granted whence ariseth a very subtile Debate whether such Clauses whatsoever their Tenor be are effectual and follow the thing to singular Successors and do render the Bargain and Property acquired null in it self Or whether such be but personal Obligations only Which though they may annul the Property or Bargain if it remain in the hands of the Contracter cannot reach it if it be in the hands of a third party is the Question for clearing whereof it appeareth First That if such Conditions or resolutive Clauses do stop the transmission of Property and be so meaned and exprest then as is said before the Bargain is pendent and the Property not transmitted even as to singular Successors and the seller remains the Proprietar But if by the Contract and Clause the buyer become once the Proprietar and the condition is adjected that he shall cease to be Proprietar in such a case this is but personal for Property or Dominion passes not by conditions or provisions but by Tradition and otherways prescribed in Law so that these conditions however exprest are only the foundation upon which the Property might pass from the buyer if the thing bought remain his unless by Law or Statute it be otherways ordered as in Reversions of Lands Alienation of Fewdal Rights which become void and return if alienat and not payment of the Few Duty whereby the Few Right becomes void but all by Law and Custome and not by privat Paction 68. Secondly The doubt remains if such personal Conditions with such Clauses resolutive be in the body of the Bargain whether it be effectual against singular Successors who cannot but know their Authors Rights and therefore are in dolo mala fide if they acquire such Rights in prejudice of the conditions thereof and so ex dolo at least such Clauses will be effectual against the singular Successors But first this hath no force where the acquiry is not voluntar but necessar for satisfaction of Debt by Appryzing and other Legal Diligence in which ordinarly the acquirer doth not neither is supposed to know his Authors Right Secondly If the Bargain be so necessar that the Purchaser be a Creditor and hath no other probable way of payment in which though he see his Authors Right bearing such Clauses yet he acteth upon necessity for his own satisfaction Thirdly These who acquire such Rights without necessity and see therein such conditions in themselves personal though having resolutive Clauses do not thereby know that the third party hath the Right jus in re but only jus ad rem and therefore if they acquire such Rights the property is thereby transmitted and though there may be Fraud in the acquirer which raiseth an Obligation of Reparation to the party damnified by that Delinquence yet that is but personal and another party acquiring bona fide or necessarly and not partaking of that Fraud is in tuto but certain knowledge
Renunciation and therefore Acceptilation without any performance is sufficient and is the more solemn and secure way of Exoneration For where there are many Co-debitors the Discharging one Liberats not the rest if they be Co-principles unless the Discharge be impersonally conceived that the thing oblieged shall not be demanded or that the Renunciation or Discharge be granted to the principal Debitor for thereby the Obligations of the Cautioners being accessory are understood also to be Renunced But Acceptilation extinguisheth the Obligation as to all the Debitors because it importeth an acknowledgement of performance Acceptilation with us may be of any Obligation and requireth no Stipulation but as the acknowledgement of payment Liberats all the Debitors so the acknowledgement of any satisfaction which importeth payment or any thing accepted as equivalent hath the same effect and therefore we use more the Term of Satisfaction then Acceptilation which Satisfaction if it be upon grounds equivalent to payment or direct performance it is equiparat thereto in all points and hath the priviledge of payment made bona fide to Liberat though the Obligation be not performed to the party having the present and better Right but otherways neither the acknowledgement of payment or of satisfaction or any Discharge hath the priviledge of payment made bona fide which is mainly founded upon this ground that bena fides non patitur ut idem bis exigatur 6. Compensation is a kind of Liberation as being equivalent to payment for thereby two liquid Obligations do extinguish each other ipso jure and not only ope exceptionis for albeit Compensation cannot operat if it be not proponed as neither can payment yet both perimunt obligationem ipso jure and therefore are not Arbitrary to either party to propone or not propone as they please but any third party having interest may propone the same which they cannot hinder for instance if a Cautioner be distrest he can propone payment or compensation upon the like liquid Debt due to the principal Debitor which he cannot hinder and therefore a liquid clear Debt though bearing no Annualrent compenseth another Debt bearing Annualrent not only from the time Compensation is proponed but from the time that both Debts came to be due from which time it stops the course of Annualrent as is clear by many Laws in the digeste C. de compensationibus which is constantly followed by our Custome wherein positive Law for utilities sake hath influence to shun the multiplication of Pleas for otherways if compensation were rejected the Creditor would proceed to execution and the Debitor would be put to a new Action which is very inconvenient and therefore when a Debitor forbeareth to insist for a liquid Debt after the term is past it is presumed to be on that accompt that the Creditor oweth him the like or a greater sum frustra petit quod mox est restituturus but otherways compensation is neither payment formally nor materially for when a Creditor borroweth from his Debitor a sum and expresly obliegeth him to pay the same it is so far from being done for payment of a sum formerly due to the Debitor that there is an express obliegement to pay the same in numerat Money at a day and yet if that posterior Debt be insisted on it may be compensed with the prior If compensation be renunced it will be excluded by that personal objection which will take no place against other parties interest for thereupon Compensation would be admitted for a Cautioner for a Debt due to the principal though the principal should renounce Compensation or if the Compensation be indirectly renounced by giving a Bond blank in the Creditors name which is understood as done of intention that the Bond may pass to singular Successors without a formal Assignation or Intimation but by filling the parties name who gets the Bond who charging thereupon will not be compensed by any Debt of the party to whom it was first granted Nic. hic November 14. 1621. Findlayson contra Gardine February 27. 1668. Henderson contra Birny And on the same ground a Bond of Corroboration bearing a general exclusion of Suspension was found to exclude Compensation though the Bond was granted under Caption without any Transaction or abatement June 28. 1672. Robert Murray cantra Spadie of Assintully Compensation is described by Modestinus debiti crediti contributie l. 1 ff de compensationibus which description is neither clear nor full It is not clear whether the Contribution be by concourse of two Debts or by proponing of the Compensation Neither is it full by expressing what kind of Debts are compensible for they must be commensurable and liquid being considered as Fungibles indecernable in the value or in the Individuals as Money Wine Oyl Grain c. Or if both Obligations be in general as if either party be oblieged to deliver a House a Sword c. for then no speciality being exprest the Obligations are commensurat and so compensible But Obligations of a particular body are not compensible by Money and therefore Money depositate being demanded cannot be compensed by a Debt due to the Depositar because the Money depositat was not delivered as a Fungible to be restored in the same kind but in the same individual and likewise acceptance of Depositation imports so much trust for ready delivery that Compensation is understood to be renounced l. pen. C. depositi Upon the same ground Compensation is not relevant upon sums secured by an Heritable Infeftment whereby Lands or Annualrents are Disponed for these sums for though Impignoration be intended yet the Contract being in the form of vendition with a reversion the sum lent becomes the Debitors as the price of the Land or Annualrent and is no more the Creditors unless there be a clause of Requisition that he may return to his Money or pass from his Infeftment or a clause to repay upon a simple Charge and therefore till the Requisition or Charge there can be no compensation except upon the bygon Annualrents due by the Infeftment which remains still moveable and compensible January 2. 1667. Oliphant contra Hamiltoun But Compensation was sustained upon liquid sums though Appryzing was led thereupon unless it were cled with Possession and expyred June 18. 1675. Leys Burnet contra Forbes of Blacktoun The like was found as to a sum Appryzed for but not upon a Wodsett requiring Requisition unless Requisition were made November 12. 1675. Home of Plandergast contra Home of Linthil But by a liquid Debt is not understood a Debt for which there is a decreet or quae habet paratam executionem for Restitution but it is sufficient that the Debt it self is liquid of the same kind with the Charge And therefore Compensation is competent against sums due by Registrat Bonds upon sums due by Bonds though not Registrat yea though not Registrable Compensation is also competent upon Debts which are not liquid so soon as they become liquid either
obliegement to pay it yearly or termly without mention of Infeftment made the provision or Bond Heretable and not to descend to Executors Children or Wives but to Heirs only yea though the Bond bore but five per cent which was alledged but an alimentary clause June 28. 1665. Jean Pitcairn contra Isobel Edgar till the Act of Parliament 1641. revived Parl. 1661. cap. 32. whereby such Bonds as were or should be made after that Act 1641. bearing only a clause of Annualrent and no obliegement to Infeft the Creditor in an Annualrent were declared to be Moveable as to the Defuncts Children or nearest of Kin but not as to the Wife or Fisk to fall undersingle Escheat and that because many have their Estates and Stocks in Money and take obliegement for Annualrents for the profit thereof without purpose to exclude their younger Children therefrom But Wives are excluded because they are ordinarly provided by their Contracts of Marriage but before this Act all such Bonds were to all effects Heretable yet so assums destinat for Annualrent though de facto they bore none are Heretable quoad the party who destinat as when a Tocher is oblieged by a Wifes Father or Brother to be payed to her Husband who is oblieged to imploy it upon Annualrent This sum as to the Husband is Heretable and excludes his Executors But as to the Debitor who was neither oblieged to pay Annualrent or imploy it it is moveable and so would affect the Debitors Executors and exhaust his moveables but would only belong to the Creditors Heirs January 19. 1637. Robison contra Seatoun July 25. 1662. Barbara Nasmith contra Jaffray This was so far extended that when the Destination was by a distinct article or Bond yet the Executor might be compelled to assign or repay the sum to the Heir Spots juramentum de calumnia Margaret contra Janet Watson Idem de haeredibus Executors of David Seatoun contra Thomas Robison Bonds also become Heretable by distinct superveening Rights as by a several Disposition of the Debitors of his whole Goods and Lands with obliegement to Infeft and also by a superveening Appryzing But even the compleat Heretable Rights themselves containing also personal Clauses of Requisition become moveable by the Requisition or Charge which is pro tempore a passing from the infeftment and taking the Creditor to the personal obliegement yet so as when ever he pleaseth to pass from the Requisition or Charge it convalesceth and is not excluded by interveening Rights and was found moveable by a Charge though but against one of the Cautioners not only as to him but as to all the Debitors seing thereby the Creditor had taken his option January 24. 1666. Collonel James Montgomery contra Stuart But the shewing the Defuncts mind to require is not sufficient to make the sum moveable unless it be done habili modo So a Requisition being disconform to the clause of a Requisition was found not to make the sum moveable January 18. 1665. Stuart contra Stuart Yea a Charge upon a Bond of Corroboration accumulating the Principal and Annual in a former security by Infeftment and bearing but Derogation of the former security was found to make the whole sum moveable and to belong to the Executor without necessity to instruct a warrand to give the Charge which was presumed albeit the Defunct upon death-bed exprest that the sum belonged to his Heir June 25. 1672. Executors and Heir of Sir Robert Seatoun But sums were not found Heretable because a Disposition of Land did bear as the condition of the Reversion that the Land should not be redeemed or the Acquirer denuded till he were satisfied of all sums due to him or which should de due to him by the Disponer neither yet when the sums are in the dispositive clause to be contracted thereafter but only sums which are the anterior causes of the Disposition for thereby the Creditor doth not make such sums jura fixa nor are they the causes of the Disposition February 18. 1676. Thomas Wauch contra Doctor Jamison Sums are also Heretable when Executors are expresly excluded and a Charge or Decreet for such sums will not make them moveable July 13. 1676. Christy contra Christy The reason is because the mind of the Creditor by calling for his Money is not to retain it in his hands as moveables but to make it a fixed right for his Heir seing he excludes his Executors And for the like reason Wives charging for their Heritable sums the Stocks whereof is not in their Husbands power are not presumed thereby to make them moveable and to fall in the power of their Husbands And if any party in his Process or Charge should so declare his intent it would not make the sum moveable But Requisition or a Charge will make sums which were Heretable by Infeftment or Destination moveable And so likewise will a Decreet for payment Decem. 13. 1676. Mr. John Fairholm contra Mr. Francis Montgomery Sums consigned by an order of Redemption do not thereby become moveable till declarator of Redemption or till the Creditor accept of the Confignation and insist for the consigned sums which if he do not his Executor cannot recover the same but his Heir to whom the Wodsett right belongs For it is not in the power of the debitor to alter the condition of his Creditors sum and to make it either Heretable or Moveable without consent of the Creditor or authority of a Judge but the Consignet may take up his sum Consigned and pass from his order January 21. 1673. Thomas Nicol contra Lowrie June 18. 1675. Laird of Lie contra Foulis of Blacktoun The Requisition and Charge may not only be past from expresly but tacitly by taking Annualrent after the Charge if it be for Terms thereafter as in the last case Spots Assignation Denaldson contra Donaldson Requisition or a charge makes Bonds Heretable even after the Act 1641. moveable as to the relict The like is when they become otherways simply moveable But sums only Heretable by Destination for Annualrent are moveable till the first Term of payment of the Annualrent be past though the Term of payment of the Principal be not come yet if the first Term of payment of Annualrent be past the sum is Heretable July 31. 1666. Sir Lodovick Gordoun contra Sir John Keith And if the Debitor die before that time they affect his Executors June 29. 1624. Smith contra Relict of Peter Sanderson or by the Creditors death before the first Term of the Annualtent they fall to his Executors and Wife February 12. 1623. Wallace contra Mcdowal And generally all Rights and Obliegments having a tract of Future time are Heretable as to the Executors who are thereby excluded though they no way relate to Infeftments or Lands as Pensions Tacks c. But as to the 〈◊〉 where the distinction is betwixt Moveables Liferent Rights and Heretable Rights The first being carried by single Escheat the next by
granted after the Liferent Escheat fell in prejudice of the Superiour and Donatar July 3. 1624. Moor contra Hannay and the Earl of Galloway And extended to a Tack or Few of Ward-Lands not Confirmed by the Superiour in prejudice of his Donatar of the Ward March 13. 1627. Laird of Ley contra Blair And extended to the profits of a Procurator-Fiscals place wherein the incumbent served three years without interruption though his Right was reduced thereafter and declared null ab initio February 17. 1624. Thomson contra Law It was also extended to one who having a posterior Right of Reversion first redeemed and possessed thereby as to bygones before the Citation though he had not possest so long as to give him the benefite of a possessory Judgement November 18. 1664. Guthrie contra Laird of Sornbeg It was also sustained against a Minor reducing upon Minority and Lesion yet the possessor by vertue of his Contract was secure as to bygons before Citation here there was a probable cause of contracting for an onerous consideration though not fully equivalent February 16. 1666. Earl of Wintoun contra Countess of Wintoun Upon this Title a Tennent was liberat from removing upon a warning by a Fiar after the death of his Father the Liferenter in respect he set the Tack without mention of his Liferent and was reputed Fiar and therefore the Son was put to a new warning February 16. 1669. Hamiltoun contra Harper Possession bona fide was found to Liberat an Appryzer from being countable to the other Appryzers within year and day July 17. 1675. Bailzie Baird contra Bailzie Johnstoun It was also sustained against the Donatar of forefaulture January 28. 1679. Laird of Blair contra Lady Heslehead It was also sustained upon an Infeftment for relief whereby the rents were to be imputed in satisfaction both of the Principal and Annual February 8. 1676. Margaret Scrimzour contra the Earl of Northesk Yea it was sustained though the possessors Title was forged he being a singular Successor not accessory to or conscious of the forgery even after improbation of his Title was proponed by exception but not sustained but reserved by way of Action in which the Title was found false yet the bona fides was extended to the rents spent till he was put in mala fide by probation of the forgery but he was found lyable in quantum lucratus for getting more price for the Land in question then he payed to his Author therefore December 10. 1677. Dick of Grange contra Sir Laurance Oliphant But no unlawful Possession is valid in this case if it be vitious violent clandestine or momentany But it is not so evident when a possession is accounted momentany sure little time will suffice in Moveables but in Lands more time is required a year or term or less time may suffice This Right is different from the possessory Judgement competent upon Infeftments which require longer time and because it is an effect of Infeftments Tacks or the like we shall speak thereof in that place If the Possession bona fide be by vertue of a colourable Title though perhaps null in it self upon informalities in the Law requisite or upon Inhibition interdiction or want of power in the granter it is effectual Yet when by a common or known Law the Title is void materially in this case the possessor is not esteemed to possess bona fide it being so evident ignorantia juris non excusat As if a Relict should possess Lands or others the Marriage being dissolved by her Husbands death within year and day November 16. 1633. Grant contra Grant Hereby it is evident that possession hath much in it dictinct and several from Fact and therefore it stands in place of a Title in Ejections and Spuilzies 25. By the Canon Law allowed by our Custom possessor decennalis triennalis non tenetur docere de titulo etiam in causa salsi whereupon Prebendars were assoilzied from production in an improbation of their provisions Hope Improb Bishop of Galloway contra the Prebendars of the Chappel-royal But this holds not in Reductions where the Title is supposed but craved to be reduced upon a better Right as when the debate is who hath the right of Patronage Earl of Wigtoun contra Drummellier July 24. 1622. Earl of Wigtoun contra Bishop of Glasgow for in these cases an Ecclesiastical persons Title was to be reduced in consequentiam with the Patrons Title which hath not this priviledge But this possession must be as being holden and repute a part of a Benefice and must be proven by Witnesses and therefore the possession of Lands by tollerance was found probable by Witnesses to elide thirteen years possession thereof by a Minister who pretended to it as a part of his Glibe Ministers of contra Duke of Bucleugh And if the Church-mens Title can be found their possession will be ascribed thereto and regulate thereby And therefore the Bishop of Dumblain as Dean of the Chapel-Royal having long possest ten Chalders of Victual as a part of his Benefice there being found a Mortification of that Victual by the King bearing the King to have had right by Disposition from another and that others right being produced did bear Reversion in the body thereof for seven thousand Merks which being payed to the King when the Bishops were supprest and his grant of Redemption thereupon voluntarly without an Order or Sentence The Church-mens possession more then thirteen years before the Redemption and thirteen years after the Redemption was elided by the reverse Right and Redemption Neither did the Act of Sederunt after the Reformation declaring ten years possession of Kirk Lands before the Reformation and thirty years after to import a right sustain this Church-mans possession That Act being only for Fews granted by Church-men not for rights granted to Church-men July 7. 1676. Bishop of Dumblain contra Francis Kinloch And it was found that thirteen years possession of Viccarage by a Minister did not prefer him to a Tacksman where the Ministers Title was a Decreet of Locality produced and not containing the Teinds in question February 24. 1681 Doctor Lesly contra the Minister of Glenmuck This right in favours of Church-men is by a rule of Chancelary of Rome which hath been continued after Reformation as being convenient that less time and Title should give right to the Church Benefices whose Mortifications may be easilier lost or supprest then other Rights There is also another rule in the Chancelary that triennalis pacificus possessor beneficii est inde securus this rule gives not right to the Church but prefers one Church-man to another if he continue to possess three years without interruption though he could not defend by his Right There is a third Benefite by Possession of Benefices and Stipends by seven years peaceable possession whereby they have the benefit of a possessory Judgement and cannot be called in question but by Reduction or Declarator and
the witnesses insert make a strong probation To return to Seasines propriis manibus by Husbands to Wives without warrand or adminicle in write they are not generally probative except in such cases as have been now exprest Hope Seasine Bell and Morison contra Thomson Laird of Coldingknows contra Dam Helen Hereis 20. But for the further securing of Infeftments and Land-rights that excellent Statute which before was attempted was at last perfected Par. 1617. cap. 16. whereby all Seasines Reversions Regresses Bonds or Writes for making of Reversions and Regresses Assignations thereto and Discharges thereof Renunciations of Wodsets and grants of redemption not being Registrat in a peculiar Register appointed for that end or in case of Consigning Renunciations and grants of redemption in Process within 60 dayes next after the Decreet ordaining the same to be given up to the parties having right thereto or at least within 60 dayes after Seasing taken of the Lands or Rights to which the reversions relate It is declared that the saids Seasines and other Writes shall make no faith in Judgement by Action or Exception in prejudice of a third Party who had acquired a perfect and lawful right to the saids Lands and Heritage without prejudice to make use of these rights against the granter and his Heirs But there are excepted Reversions contained in the body of the Infeftment and all Seasines Reversions c. Of Tenements within Burgh 21. And to make Land-rights yet more secure because the former Act did not require Registration of Instruments of Resignation in the Superiors hands adremanentiam whereby purchasers were not secure but that the Lands acquired by them might have been resigned or renounced to the Superior whereby their Authors Fie became Extinct without necessity of new Infeftment being consolidat with the Superiority whereby the Superiors Infeftment carryed both Superiority and Property Therefore Instruments of resignation not being Registrat are declared null yet with exception of Tenements holding Burgage And therefore a Seasine within Burgh was sustained though not found in the Towns books June 30. 1668. Mr. Robert Burnet contra Swan February 11. 1681. Francis Irwing contra Corsan Upon Consideration of this Case the Lords by act of Sederunt ordained the Burrows to take sufficient Caution oftheir Town Clerks present and to come to insert in their books all Seasines given by them of the Tenements within Burgh and all reversions or Bonds for granting reversions assignations thereto and discharges thereof renunciations and grants of redemption and that within 60. dayes after the giving of Seasine or presenting to them of the reversions or others foresaids and that under the pain of the damnage of any Party acquiring bona fide for onerous Causes by such Latent rights though prior declaring that they will hold all such Seasines reversions c. to be given hereafter and not insert in the Towns books in manner foresaid to be Latent and Fraudulent keeped up of design to insnare lawful purchasers But there is now an Act of Parliament requiring the inserting of Seasines within Burgh in the Town-Clerks Books in the same manner and under the same certifications as is required to the Registration of Seasines without Burgh 22. And for the further security of Land-rights because Apprysing or Adjudication with a Charge of Horning thereupon against the Superior maketh for some time a real right Therefore an abbreviat of Apprysings contained in the allowance thereof written on the back of the same and signed by two of the Lords was ordained to be Registrat in a particular Register for that purpose within 60. dayes after the date of the Apprysing with certification that any other Apprysing though posterior in date yet first allowed and registrat shall be preferred Parliament 1661. cap. 31. which is extended to Adjudications Parliament 1672. cap. 19. But this relates only to the new form of Adjudications then introduced in place of Apprysing But for the old Adjudications upon there nunciations of Heirs or implement of Dispositions neither Statute nor Custom have yet cleared whether these will be effectual against singular Successors from their Dates or from the Charge against the Superior or only from the Seasines thereupon which as all other Seasines must be registrat And if the Lords do sustain these from the Charge it will make a defect in the security of Land-rights till it be supplied by act of Parliament And for further security of Land-rights because they might be reduced upon Inhibition or Interdictions Therefore these if not registrat are also null And in respect Horning continuing unrelaxed year and day after the denunciation the Superior hath the Fee during the life of the Vassal denunced therefore horning if not registrat is also null and the act of Prescription excludes all prior rights preceeding 40. years unless they have obtained Possession or done digence therefore by interruptions which must be repeated every five years or else they are null and must also be execute by a Messenger so that where before a Citation made interruption which continued for forty years which might much insecure Purchasers they can now last but five years in which short time the noise thereof may readily reach purchasers so that if purchasers get a progress of Infeftment for fourty years he may by the Registers know it there be any real Right that can affect the Fee within that time and hath no more to enquire but as to interruptions within five years which if the Lords appoint to pass only upon Bills it may be found at the Signet So that upon the whole matter no Nation hath so much security of irredeemable Land-rights as we have It is true redeemable rights are not so secure because they may be evacuat by order of redemption which proceed by Instruments of premonition and Consignation which require no registration and therefore purchasers of Appryzings or Adjudications during the legal reversion are in hazard of any order of Redemption or Summonds for Count and Reckoning and likewise these who purchase Wodsets or Infeftments of property or annualrent for security of sums run the hazard of satisfaction and payment of these sums by intromission or otherways wherein there is little inconveniency for no man should purchase a redeemable right without consent of the reverser but upon his hazard or if there be any reversion reservation or real burden in his authors right sibi imputet it is his fault and negligence if he did not see it and secure himself against it The Question may occur here if the Keper of the Register of Seasines do according to the Custom mark the Seasine Registrat and attest the same by his subscription and yet by negligence or fraud shall not insert it in the Register whether in that case a purchaser bona fide for causes onerous though Infeft thereafter will be excluded by that prior Infeftment marked by the Clerk not recorded though nothing hath been observed in this case If Seasines marked Registrat
but upon the Vassals rebellion and disobedience to Law which is not against the Superior or any delinquence against the feudal Contract the Vassals Liferent Escheat gives the Superior no more then the Vassal himself had the time of his denunciation and so all real Rights compleat by possession whether Infeftments or Tacks are not prejudged by the subsequent Life-rent Escheat as was found January 19. 1672. Mr. William Beatoun contra Scot of Letham In Feues so far as is allowed by Law the Vassals Life-rent will reach no more then the Feu-duties of Feues set by the Vassal before his denunciation But any subaltern base Infeftment not cled with possession before rebellion is excluded by the Life-rent March 19 1633. Laird of Rentoun con Blackcader Feb. 21. 1667. Robert Miln con Clerkson in which case it was found that possession not being attained in cursu rebellionis during the year it was not effectual If a 〈◊〉 be set without diminution of the Rental for the old Tack-dutie it will not be excluded by the Life-rent though it be set after denunciation as was found in a Tack after denunciation within the year Hope Horning Charters contra Mclelland Spots Escheat Tillibairn contra Dalziel The like of a Tack set to a kindly Tenant Hope Horning Paton contra Drumrash For in such cases setting of Tacks is a necessary administration for the good of both Superiour and Vassal and to shun debate concerning prejudice and unanswerable Tack-duties as in other cases of administration of beneficed persons so if there Tacks be set without diminution of the Rental they are good 54. Liferent-escheat extends it self to all Fees whether holden Ward Blensh or Feu but not to Burgage and Mortification because the Fiar is a Society and Incorporation which dieth not and therefore have no Liferent-escheat And though Denunciation may be used against the persons administrating the same even for that which is due by the Incorporation and as they represent it yet that being supposed their fault and negligence doth not prejudge the Society as Magistrates of Burghs Masters of Colledges Incumbents in common or collegiat Kirks Chapters or Convents sede vacante 55. But where a Beneficed person having a distinct Benefice or a Stipendary is denunced for his own debt his Liferent-escheat falleth and therewith the profites during his life or incumbency because though the Fee be not in him yet he hath a distinct Liferent thereof which is not so in the former case where both Fee and profites are in the Society 56. Liferent-escheat is made effectual by a general declarator finding the Vassal to be denunced and year and day past by production of the Horning but there is no necessity to prove him Vassal unless he be a singular Successor in the Superiority not acknowledged by the Vassal or in case the vassal disclaim herein is no mention of profites but this Declarator being obtained the Fee is void from the Denunciation and the Superiour or his Donatar have access to the Mails and Duties thereof and to set and remove the same and to do all deeds accustomed by the vassal himself in the same manner as Ward This useth to be done by a special Declarator which is now accustomed to be in one Process with the general Declarator As to the Profites Vide Title 25. TITLE XV. Annualrent where of Pensions and Poinding of the Ground 1. Description of Annualrent 2. Therise of Annualrent 3. The manner of constituting Annualrents 4. The kinds of holding of Annualrents 5. Liferent-escheat of Annualrenters 6. Kinds of Annualrents amongst the English 7. The difference of Feu Annuals Ground Annuals and Top Annuals 8. Poinding of the Ground 9. The extent thereof 10. Who must be cited in Poinding of the Ground 11. The effect of Poinding the Ground as to Ground rights 12. The Order of Poinding Moveables by several Annualrenters 13. Annualrents are effectual personally against intrometters 14. Annualrents are moveable as to bygones 15. Extinction of Annualrents 16. Ecclesiastick Pensions affect the Benefice 17. Pensions by secular Persons how far effectual 18. The Kings Pensions are not Arrestable WHETHER Annualrent by infeftment be a distinct Right of property or whether it be only a Servitude upon the ground leaving the name of Property to the ground Right as Craig esteemeth l. 1. Dieges 10. § last it is not worth much Debate but in either case it falleth fitly here under Consideration after Property and Superiority and before unquestionable Servitudes 1. Annualrent is so called because it returneth to be payed every year at one or two Terms and therefore it is called Rent and because it is yearly so payed it is called annualrent The English extend these Rents to Rents due by Lease or Tack but with us annualrents are only Constitute by Infeftment and though the Disposition or provision thereof may be sufficient against the Constituent or his Heirs it is not effectual against their singular Successors and is no real Right of the Ground 2. The Rise of annualrents is from the Prohibition of Usury in the Canon Law which they extend to the taking of any annual or profite for Money or any other thing in Lieu whereof those who were unfit for Trading or mannaging the Property of Lands bought annualrents either irredeemably or under reversion it had the same effect with the personal obliegement for annualrent and therefore it is still retained where annualrent according to the rates prescribed by Statute or Custom is allowed by personal obligation and is not Usury and the Infeftment of annualrent is in security thereof Annualrents may be constitute either of Money Victual or other Fungible and that either in Fee and Heritage or in Liferent and either by a several Infeftment or by Reservations in Infeftments of Property In which cases the Proprietars Seasine serveth both 3. Infeftments of annualrents in most things do agree with the Infeftments of property in the manner of Constituting thereof by Charter or Disposition and Seasine in which the symbol and token of the Delivery of Possession of the annualrent when Money is a penny Money and when Victual a parcel thereof Yet an old Infeftment of annualrent was sustained though it bore only Seasine to be given according to the solemnities used in such cases albeit it was given thirty six years before and no Possession thereby March 23. 1631. Somervel contra Somervel of Drum And being once validat by Possession it was not excluded by the Infeftment of Property of the present Heretor though the annualrenter shew not the Infeftment of him who Constitute the annualrent with the Proprietar his authors Infeftment so that it did not appear whether both Infeftments flowed from one common author seing the Infeftment of annualrent was prior to the Infeftment of Property it was not excluded thereby February 7. 1667. Smeitoun contra Tarbet 4. Annualrent may be either holden Ward or Blensh or by Mortification and useth not to be holden Feu or Burgage and is
poinded before by a third party for a Debt Hope poinding Paterson contra Patrick Adam 10. In poinding of the Ground the Proprietar the time of the Summonds must be called albeit his Infeftment be base but not the Superiour January 19. 1636. Oliphant contra Oliphant And is sufficient to call the Wodsetter without the Reverser February 1. 1631. Gilbert Williamson contra Hendrie Cunninghame The Tennents also must be called in so far as concerns their Goods but the present Heretors and Tennents being once Discerned the Decreet will be effectual against all singular Successors and subsequent Tennents without a new Decreet of Transferrence Hope poinding of the Ground Forrester contra Tennents November 21. 1628. Watson contra Reid June 26. 1662. Adamson contra Lord Balmerino But poinding of the Ground upon Annualrents may proceed summarly without declaring the Right in a petitorie Judgement though the Annualrenter hath not been in possession for seven years and a posterior Annualrenter in possession seven years was not found preferable because Annualrents being debita fundi have neither prejudice nor profite by Possession as in a possessory Judgement which is only competent upon Infeftments of Property or Tacks January 9. 1668. old Lady Clerkingtoun contra Clerkingtoun and the young Lady And a poinding of the ground may proceed against the appear and Heir without a Charge to enter Heir January 2. 1667. Oliphant contra Hamiltoun 11. As to the Ground-right and Property of the Land Appryzing upon Infeftment of Annualrent is not only effectual against the Proprietar but against any other Appryzing for personal debt and Infeftment thereupon being after the Original Infeftment of the Annualrent though before the appryzing thereon Hope poinding and appryzing Tennents of Clunie contra Tarachtrie Slowand and Glendoning And it is the singularity of this Right that the Infeftment of Annualrent being once Established appryzing thereupon will be preferred to all interveening Rights and Diligences even though they proceed upon posterior Infeftments and Annualrents And though by the late Act of Parliament Appryzings within year and day come in pari passu there is an express exception of Annualrents and therefore an appryzing proceeding upon a personal Obliegement and Requisition both for Principal and Annual and within year and day of other appryzings the Appryzer was allowed to pass from his appryzing as to the Annualrents prior to the Appryzing and these were preferred to all the appryzings and his appryzing was brought in pari passu for the Principal sum and Annualrents after the appryzing December 22. 1671. Campbel contra Yea an Infeftment of Annualrent being betwixt the first effectual appryzing and the subsequent appryzings within year and day was brought in pari passu with these appryzings as to the whole right as being in a matter dubious upon a new Statute the Annualrenter having rested thereupon and not having appryzed for his principal sum which if he had done he would clearly have come in pari passu February 6. 1673. Brown of Colstoun contra Edward Nicolas There is a case proposed by Sir Thomas Hope viz. If one having Right to some years of an Annualrent by Liferent or otherways should appryze for these years and that appryzing expyre whether that appryzing expired will carry the right of Property not only from him who constitute the Annualrent but from the Fiar of the Annualrent himself so that the Infeftment of annualrent should become extinct which seems to be resolved affirmatively because of the nature of the Right for the Infeftment of annualrent being jus sed ignobilius becomes extinct if the annualrenter there upon do appryze the Property and be Infeft and therefore whoever appryzeth for years of the annualrent the Infeftment thereof unless it be taken away by satisfaction or redemption extinguisheth the Infeftment of annualrent without distinction whether the appryzing be led for any years belonging to the Fiar Liferenter or any other and whereas the difficulty seems to be that the Liferenter cannot prejudge the Fiar of the annualrent or appryze more from the Fiar of the Land than he had It is answered the Fiar needs not be prejudged because he hath a virtual Reversion and might thereby redeem from the Annualrenter and take the Liferenters Right Neither doth the appryzing exclude the annualrent it self as to years posterior by the Tenor of the appryzing but by the nature of the right constitute to that very end that an Apprising for any years of the Annualrent is drawn back ad suam causam viz. The original Infeftment of the Annualrent and so excludes all posterior Infeftments and therefore extinguisheth not only these but even the Infeftment of Annualrent it self ceaseth by accession of the property ut juris nobilioris but if the Fiar of the Annualrent were neglective in so dubious a case it is like the Lords would repone him satisfying the Liferenter In the case of competition the Infeftment of Annualrent it self will be preferred to the posterior Rights though no Apprising followed January 29. 1635. Sir James Hamiltoun of Brownhill contra Wilson Infeftments of Annualrents have the priviledge and preference though they be made use of by way of competition without Apprising thereupon Yea though requisition was made and an Apprising led upon the Sum whereunto the Annualrent was accessory yet it was found the Appriser might pro loco tempore pass from that Apprising and upon the Annualrent it self be preferred January 24. 1663. Robert Graham contra John Ross. 12. But as to apprising of Moveables or Rents the Lords use in competitions to give so much time to the first Annualrenter and so to the rest after each term that they only may poind and so they decerned the first Annualrenter to poind within twenty dayes of each term and the second within the next twenty dayes Feb. 15. 1662. Ladies Mouswall elder and younger competing The like allowing the first Annualrenter fourty dayes after each term July 26. 1662. Sir John Aiton contra Adam Wat. But as to the Apprising of the Property the first Annualrenter may apprise when he pleaseth and then is preferable to all others but the regulating of the poinding of Moveables is in favour of the poor Labourers The like June 26. 1662. Adamson contra Lord Balmerino where it was found that the Annualrenter might affect any part of the ground in solidum albeit now belonging to several Heretors but so as the Heretor of the ground affected behoved to have Assignation to the Decreet for obtaining relief 13. Annualrents long ago had no effect but poinding of the ground and could not come in to hinder Arresters of the duties for the Proprietars debt March 24. 1626. Gray contra Graham but thereafter were ordained to be a sufficient Title against all intromettors with the Duties personally March 15. 1637. Richard Guthrie contra Earl of Galloway Annualrents were found lyable to publick Burdens proportional with the superplus Rent belonging to the Fiar June 23. 1675. David
Bruce contra James Bruce This annualrent was not for security of a Stock The like was found of a Liferent Annualrent June 18. 1663. Margaret Fleming contra James Gillis 14. Annualrents as to bygones are moveable and so arrestable and belong to Executors December 15. 1630. Ogilvie contra Ogilvie Yet it will be more competent and suitable to pursue it personally against intrometters with the Rents or Postessors then by a real Action of poinding the ground Annualrents are supprest by Wodset of the Land or other more noble Right in the person of the Annualrenter unless that Right were evicted 15. An Infeftment of Annualrent redeemable was found extinct by a Renunciation registrat in the Register of Reversions and that against a singular Successor though there was no resignation of the Annualrent January 7. 1680. John Mcclellan contra Mushet An annualrent was also found extinct by the annualrenters intrometting with the Rents of the Lands out of which the Annualrent was payable equivalent to the principal Sum for security whereof the annualrent was constitute which intromission was sound probable by witnesses though it was silver-rent Feb. 4. 1671. Wishart contra Elizabeth Arthur And therefore singnlar Successors succeeding in annualrents either by voluntary Disposition or by Apprising or Adjudication cannot be secure by inspection of Registers as they may be for Lands but they run the hazard of satisfaction of the principal Sum for which the Annualrent is granted wherewith it falls in consequence For no provident man will buy an annualrent given for security of a principal Sum but either upon necessity for satisfying a prior debt or upon great advantage in both which cases he should take his hazard Scire debet cum quo contrahit as all Purchasers of personal Rights must do Pensions resemble Annualrents or the seuda ex camera or ex cavena mentioned by the Feudists for thereby a yearly Rent is constitute to be payed out of the Constituents Lands generally or particularly Yet these Pensions not having Infeftment have but the nature of Assignations and so are not valid against singular Successors 16. Except only Ecclesiastick Pensions constitute by Prelates which are valid against their Successors in Office but not unless they be cloathed with Possession or Decreets conform in the Constituents life Par. 1592. cap. 137. And so a Pension granted by a Bishop with power to assign was found valid to the Assigney after the first Pensioners death against the succeeding Bishop and to be no dilapidation July 21. 1625. Minister of Kirklistoun contra Patrick Whitelaw yea though the Pension bore a power to assign etiam in articulo mortis December 17. 1628. Chalmers contra Craigievar But in this case the Pensioner granting Assignation reserving his own Life-rent or to take effect after his death whereby both might at once have interest therein the Assignation was found null by exception though having Decreet conform and thirty years possession The like Hope Assignation Abernethie contra Lady Drumlanerk But now by the Act of Par. 1606. cap. 3. Archbishops and Bishops are disabled to grant Pensions to affect their Benefices further then themselves have right to the Benefice but do not prejudge their Successors in Office Yet Pensions granted by beneficed persons are not only due during their life but out of their annat after their death February 28. 1628. Bairns of the Bishop of Galloway contra Andrew Couper 17. Pensions granted by secular persons though they contain Assignations to the duties of the Lands specially and have Decreet conform were found ineffectual against singular Successors in the Land July 9. 1629. Urquhart contra the Earl of Caithness December 11. 1662. Andrew Clappertoun contra Laird of Ednem neither against the Lady Tercer of the Constituent March 27. 1634. Countess of Dumfermling contra Earl of Dumsermling A Decreet conform being obtained against the granter of a Pension his Tenants and Chamberlains is effectual against subsequent Chamberlains without new Decreet or Transference yet must be transferred against the Constituents Heir and his Chamberlain though it would be valid being an Ecclesiastick Pension against his Successor December 7. 1630. Earl of Carrict contra Duke of Lennox Spots hic Alexander Weyms contra Chamberlain of the Duke of Lennox A Pension bearing for love and special service done and to be done was found effectual though the Pensioner removed and did not that service his removal being necessary by transportation March 25. 1629. Doctor Strang contra Lord Couper The like of a Pension granted to an Advocat for services done and to be done which was found valid during his life though he left Pleading December 3. 1662. Mr. John Alexander contra Mr. Roderick Mcleod The like of a Pension for service done and to be done though the service was not done when not required nor was it excluded by the Pensioners pursuing Processes at his own instance against the Constituent upon a probable ground though the Constituent was assoiled June 26. 1678. Mr. William Weir Advocat contra the Earl of Callendar 18. Pensions granted by the King are declared not arrestable in the Thesaurers hands by Act of Sederunt June 11. 1613. The reason thereof must be because such are ordinarly alimentary and alwayes for the Kings special service which would be impeded by hindering payment of the Pension TITLE XVI LIFERENTS Where of Conjunctfees Terces and Liferents by the Courtesie of Scotland 1. Servitudes personal by the Roman Law 2. Servitudes personal by our Custom 3. Clauses of Conquest of Liferent or fee of Lands acquired during marriages how far extended 4. All Liferents must be salva rei substantia 5. Liferenters are burdened with aliment of Heirs 6. Liferents without Infeftment are not effectual against singular successors 7. The effect of Assignations to Liferents 8. Liferents are not prejudged by Tacks or other deeds of the Fiar being posterior 9. What Terms do belong to Liferenters 10. Conjunctsees 11. Liferenters by Conjunctsee have all the Casualities of Superiority 12. Terce 13. Services of Terces 14. Kenning to Terces 15. The effect of Terces 16. The extent of Terces 17. Exceptions against Terces 18. Burdens of Terces 19. Liferents by the courtesie of Scotland 20. Publick burdens FROM the Feudal Rights of Property we proceed to Servitudes burdening the 〈◊〉 these are either personal or real Personal Servitudes are whereby the property of one is subservient to the person of another Real Servitude is whereby a Tenement is subservient to another Tenement and to persons But as and while they have Right to the Tenement Dominant as Thirleage Pasturage Ways Passages c. and the like Servitudes personal for term of Life are therefore called Liferents Servitudes for an indefinite time are such which either may or uses to be Constitute for a longer or shorter time such are Pensions Ecclesiastick Rentals and Tacks which though they be in their nature but personal Rights Yet by Statute or Custom they have the effect of real Rights of which
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
interpret they would render Infeftments of small effect That we may proceed orderly in this matter we shall consider First The constitution of Tacks Secondly The extent and effect of them Thirdly The kindes of them Fourthly The restricstions and defects of them Fifthly The avoiding and removing of them As to the First Tacks are also called Assedations as a setting or setling of the Tenement in the Land the English call them Leasses Some Tacks are also called Rentals as being the constitution of a fixed Rent and they are of longer endurance then ordinary Tacks being of one or more Liserents and have somewhat special in them of which hereafter 3. As to the Constitution of a Tack consider First Who may Constitute it Secondly Of what Thirdly How For the First to the Constitution of an effectual Tack the setter must not only have all the Capacities requisite to Contract but he must have right to the thing set and power to administrate which being Tacks may either be granted by Commission if it be special as to the Tacks or at least as to matters of great importance and a general Clause for others or otherways by Tutors Curators or other Administrators of the affairs of others concerning whom Craig lib. 2. Dieg. 10. moveth and removeth this doubt whether Tutors c. may set Tacks for longer time then during their Office which he resolveth negatively even though it were without the Minors Detriment continuing the ancient Tack-duty seing he is so far hurt as not to have the free disposal of his own The subject whereof Tacks are ordinarly set are Lands but it may be any other thing having fruite or profite as a Fishing an Office or a Casuality As to the manner of Constituting Tacks they must be considered in themselves First As personal Rights Secondly As by the Statute becoming real as they are personal Rights the consent of the setter and Tack-man agreeing in the rent is sufficient 4. But as Tacks are become real Rights there is a necessity of write except in a Tack of one year which may be verbal but if the agreement be for more years the setter may resile and though the Tacks-man be in possession if he resile it will have no effect as to subsequent years July 16. 1636. Alexander Keith Contra his Tennents the like though the Tennent possessed and builded Houses conform to the agreement yet the penalty of paying a years rent by the failzier to the observer was found to stand July 15. 1637. Mr. Andrew Skein contra But if once there be a Tack the setters promise not to remove the Tennent during his life was found effectual and not to be resiled from Nicol. de migrando Lumbsden contra Black 5. The write requisite to constitute a Tack requireth not many Solemnities but if the thing set the Parties the Rent and the Time be cleared the Tack will be valid It was ordinarly granted by the setter to the Tacks-man for such a Duty without any mutual obliegement upon his part like unto a Charter but because the Tennent not being bound might at the end of any year before Whitsonday renounce such a Tack and be free as being in his favour therefore they are now ordinarly by Contract whereby the Tacks-man as well as the Setter is oblieged to stand thereto 6. Craig saith in the fore-cited place Pactum de assedatione facienda ipsa assedatio parificantur praecipue si possessio sequatur which is unquestionable as to the setter and his heirs and was also found against a singular Successor by a personal obliegement in a Contract of Marriage providing Lands to a wise and warranding the same free of all Teinds except such a quantity which was in use to be payed whereby a posteriour Assignation to the Tack of these Teinds was excluded March 20. 1629. Laird of Finmouth contra Weyms The like of a Tack and Decreet Arbitral decerning a Tack to be granted This was in a Spuilzie Hope Spuilzie John Crawford contra 7. As a Tack becometh a real Right it must necessarily be cled with possession but requireth no Seasine or Instrument or other solemnity July 11. 1627. Wallace contra Harvie January 22. 1611. Laird of Pitsligo contra Philorth The like though the Tacks-man was in possession yet not by vertue of the Tack but by vertue of a Wodset though the Tack was renewed the time of the time of the Wodset Hope removing Walter Ord contra Tennents of Fydie and therefore a posterior Tack being first cled with possession was preferred to a prior Tack June 23. 1627. Mr. John Mcmillan contra Gordoun of Troquhan 8. Yet a Tack after redemption of Wodsett Lands is valide against singular Successors as a part of the Reversion though it attain no possession before the setter be denuded But it is contrary in a Back-tack appointed to follow a Redemption of an Annualrent for it and 〈◊〉 Lands are diverse and the possession thereof diverse Nicolson removing Gawin Hamiltoun contra Alexander and others but the prorogation of a Tack is the renovation of it and hath the same effect as a new Tack of that date for the years in the prorogation 9. As to the extension and effect of Tacks they are little less then of Infeftments for thereby the Tacks-man is maintained against all parties having interest till the Tack be out-run and be warned even though set by a Liferenter it will maintain the Tennent against the Fiar either from removing till warning or from paying more then the Liferenters Tack duty though it be small July 6. 1610. Mr. Robert Bruce contra Captain Bruce Yea though the Tack-duty was elusory set by an Appriser to a person being no labourer of the ground February 3. 1631. Blaues contra Winrham The reason why Tacks by Liferenters are effectual for the year in which the Liferenter died because by Act of Parliament Tennents can only be warned to remove fourty dayes preceeding Whitsonday So that if the Liferenters live till thirty nine dayes before Whitsonday their Tennents cannot be removed but brooks per tacitam relocationem till the new time of warning 10. A Tack hath also the benefit of a possessory judgement upon seven years peaceable possession as an Infeftment without necessity to dispute the setters right July 13. 1636. Bishop of Edinburgh contra Gilbert Brown which was found where the Tack did bear to be granted by the setter as heretable Proprietar Otherwayes a Tack by a Liferenter Tennent or Donator might claim the benefit December 1. 1676. Mr. Patrick Home contra Sir Laurence Scot. And therefore if it were alledged that the setter or liferenter had any other temporary title it would be admitted without Reduction if the Liferenter or beneficed person granter thereof were dead 11. A Tack set by an Heretor for a Tack-duty to be payed to his Creditors was found a real Right effectual to the Tennents but whether it would be found a real right in favours of
Order of Redemption being lawfully used the action thereupon is a declarator of Redemption because it is the order that Constitutes the Redemption and the Declarator but finds and declares it to be orderly proceeded and decern-the Wodsetter to denuds himself conform thereto and therefore though the Reversion be personal excluding Assigneys if that person once use the Order he may Assign it and Dispone the Lands as Redeemed and the Assigney at any time even after his death will have interest to declare July 29. 1623. Earl Marischal contra his Brother March 3. 1630. Murray contra Myls July 30. 1650. Campbel contra Dick. Declarator of Redemption was sustained upon an Order used against a defunct and the Declarator pursued against his appearand Heir without a Charge to enter Heir or a new Order December 11. 1638 Findlayson contra Weims But in the Decreet of Declarator of Redemption against the appearand Heirs they cannot be decerned to denude unless they were Charged to enter heir yet the Declarator it self would be sufficient to extinguish the Wodset against singular Successors But it would not convey the right of Wodset to the Redeemer and therefore if he were not Infeft or heir to a person Infeft in the Wodset Lands it would be necessary to charge the appearand heir to enter to the effect he might denude and dispone and therefore a declarator of Redemption against an appearand heir did bear that the sums should not be given up till the appearand heir were Infeft and Resigned January 10. 1665. Campbel contra Brison It was also sustained at the instance of an Appryzer of the Reversion without calling him from whom it was Appryzed but only the Wodsetter December 17. 1629. Carnousie contra Lesmore In respect that the Appryzing was a Legal Assignation of the right of Reversion granted by the Wodsetters author And there have been no interveening singular Successors but in Redemptions against singular Successors in Wodsetts whose rights do not instruct that they are derived from the granter of the Reversion the pursuer must instruct that the granter of the Reversion stood Infeft in Fee Otherways that singular Successor will not be oblieged to acknowledge the Reversion and because the Successors of the first Wodsetter would have warrandice against the first Wodsetter or his heirs if they had disponed the Lands without reserving the Reversion therefore in that case only the first Wodsetter or his heir if he can be condescended upon having any visible Estate have been of old accustomed to be called which is not necessary in other cases and hath been the ground of that Decision July 9. 1630. Fisher contra Brown Where it was found necessary to call the heirs of the granter of Reversion if the defender could condescend upon them for the ancient custom hath been to have more respect to the heir of the granter of the Reversion then to the singular Successor present Possessor of the Wodset as Craig observes l. 2. Dieges 6. that sometimes Redemption hath been sustained upon Premonition and Citation only of him who granted the Reversion or his heir But ever since the present Heretable Possessor of the Wodset must necessarly be Premonished and Cited and but seldom the granter of the Reversion or his heir as where the granter of the Reversion was immediat Author to the singular Successor against whom the Order was used as in the former case his own Rights behoved to acknowledge the right of the granter of the Reversion who was common Author and might intimate the plea to him but could not be oblieged so to do where his own right shew no right from the granter of the Reversion A Redemption being voluntary without Process was sustained against a Sub-wodsetters right being a Liserent by the Wodsetter to his Wife albeit it was 〈◊〉 yet the Redeemer was not found oblieged to know it but it was found taken away without any Order against her or Citation of her Iuly 27. 1665. Lillias Hamiltoun contra her Tennents Redemption upon a Rose-noble used upon the Sabbath-day albeit the Instrument of Consignation did not bear the Reversion was shown nor read was sustained Spots Redemption Laird of Newwark contra his Son but this would not be drawn in example amongst strangers where the Wodset is redeemable upon considerable sums For though Consignation upon the Sabbath-day by a Father against his Son be sustained 〈◊〉 non debet sed factum valet Yet the Wodsetter cannot be oblieged to attend and perform the requisites of Consignation by numeration of Money perusal of Writes and subscribing a Renunciation upon the Sabbath-day Redemption was sustainedwithout necessity to the pursuer to uplift the sums Consigned from the Consignatar and re-produce them at the Bar unless it be instructed he had taken them up December 7. 1631. Grierson contra Gordoun Where the Extract was superceeded till the Consignatar was Charged summarly upon Letters granted upon the Instrument of Consignation to exhibite the Consigned Money but no Annualrent was found due after Consignation A Redemption was sustained without production of the Reversion the pursuer being an Appryzer and proving that the Reversion was in the Defenders own hand February 19. 1662 Children of Wolmet contra Mr. Mark ker The like where the pursuer was a singular Successor February 17. 1663. Collonel James Montgomery contra Robert Halybruntoun Yea an order used by an Assigney sustained though he shew not his Assignation till the Process of Declarator yet so as the Wodsetter was not countable for the Rents but from the production of the Assignation February 19. 1674. Lord Borthwick contra Pringles Yet Redemption was not sustained at the instance of an heir not being entered at the time of the Order though entered before Declarator Ianuary 19. 1672. Lord Lovat and Kintail contra Lord Mcdonald But if the Redeemer uplifted the Consigned Money he must produce the same with the Annualrent and will have right to the Rent during that time Hope Confirmation Baikie contra December 8. 1671. Forrest contra Brounlie November 29. 1672. Duke of Buckleugh contra Scot of Thirlestain Redemption was not eleided because the sums were Consigned in the hands of the redeemers own servant and taken up from him seing it was offered at the Bar and no special provision in the Reversion anent the Consignatar Hope Confirmation Laird of Drum contra Wishart The like though there was an Instrument of another Nottar contrary the Order of Redemption July 18. 1610. Earl of Kinghorn contra Kincaid 20. The effect of Declarator of redemption is that it makes the redeemed Lands belong to the Redeemer and makes the sum Consigned moveable and to belong to the Wodsetters Executors if he have accepted the Consignation or Declarator do follow in his Lifetime but if Declarator do follow after the Wodsetters death the Consigned sums will not belong to his Executors but to his heir who remains Propietar of the Wodset But if Declarator past in the Wodsetters Life it did take
fourty years though no Feu Blensh or other Duty or Casuality be demanded by the Superiour because the Vassals Right acknowledgeth the Superiours Right and his possession is also the Superiours possession Yet all Duties and Casualities thereupon not pursued within fourty years prescrive without prejudice to these due within fourty years of the pursuit December 15. 1638. Sir William Stuart of Gairntullie contra Commissar of St. Andrews 17. Which holdeth in Tack-duties which prescrive as to the years preceeding fourty before the pursute but no other March 10. 1627. betwixt two Glasgow Men Spots Prescription Stuart contra Fleeming Yet Prescription by possessing fourty years as part and pertinent by an Infeftment was not Elided because before these fourty years the Possessors Author had a Tack of the Lands in question February 20. 1675. Countess of Murray contra Mr. Robert Weyms though in this case the Land in question was separatum Tenementum by a distinct infeftment but became part and pertinent by being so brooked fourty years By this Statute Prescription of Heretable Rights doth not only exclude other Infeftments in Property but also Annualrents Pensions and all other Rights and so an Heretor possessing fourty years was found free thereof July 22. 1634. Margaret Forrester contra Possessors of Bothkennel where the Office of Forrester and Fees thereof were found prescrived 18. From this Prescription there are excepted the Rights of Pupils and Minors against whom the Prescription runs not during their Minority so that they need not seek Restitution in integrum as in the Civil Law which exception is particularly exprest in the foresaid Statute and is extended to all other Prescriptions of personal Rights or others Spots Prescription Duke of Lennox contra the Executors of Alexander Beatoun But there is no exception of Rights mortified to pioususes as Bead-men June 30. 1671. Bead-men of Magdillan-Chapel contra Gavin Drysdale 19. In neither of the Statutes introducing long prescription by fourty years is there any mention or provision concerning the manner of the entry in possession whether it was bona fide peaceable or lawful but only that it have a Title and be continued without interruption 20. The Title in heretable Rights being ground-rights of Lands or Annualrents is very well distinguished by the last Statute betwixt Conquest and Heretage for Heretage which hath descended by succession from a predecessor is content with a more slender Title viz. Seasines without the Warrands or Adminicles but only bearing that they proceed upon Retoures or Precepts of Clare constat providing that the possession hath been by vertue of these Seasines So that not only there must be possession for fourty years together but Seasines consecutive proper to the several possessors during that time But purchasers must not only have for their Title a Seasine preceeding the fourty years prescription but if they found upon their proper right they must also produce a Charter preceeding the fourty years And therefore though a purchaser should possess fourty years and show his Seasine anterior thereto yet would it not be a Title for prescription unless he produce a Charter before that time where by Charter must not be understood a solemn Charter as it is distinguished from a Disposition or Precept but as it comprehends these for many valid Infeftments have no Charter but Seasine proceeds upon the Precept of Seasine contained in the Disposition And though a Precept of Seasine were only shown as the warrand of the Seasine the same with fourty years possession by vertue thereof would perfect Prescription for the Seasines of themselves without Warrand or Adminicle are but the assertions of Nottars and not probative yet they are sufficiently probative not only by the immediat Warrand or Precept whereupon they proceed but upon the mediat Warrand as if a Seasine be produced with a Bond or Obliegement to grant an Infeftment conform to that Seasine vide Tit. 3. § 19. But purchasers may well conjoin their own Title and their Authors So that if he can show in his Authors persons consecutive Seasines for fourty years upon Retoures or Precepts of Clare constat and possession conform it will be sufficient or if they cannot show such Seasines and Possession in their Authors for the whole fourty years yet if they show the accomplishment of fourty years by their own Seasines and Warrands thereof and possession conform these may compleat the Prescription 21. This Statute doth not only secure Rights and Lands and Annualrents by fourty years peaceable possession cum titulo but also other heretable Rights such as Wodsets for Registrat or incorporat Reversions being exprest as exceptions Wodsets must be comprehended in the Rule and all Infeftments for Security or Relief which do imply a Reversion incorporat It will also extend to Infeftments of Teinds for though Teinds be separatum Tenementum from the Stock yet both are ground-rights or Infeftments of the Land yea Infeftments of Life-rent if possessed and unquarrelled for fourty years showing their Seasine and the Warrand or Adminicle thereof the same would make the Liferent-right irreducible or might perfect Prescription being joined to their Authors Rights yea this Statute hath been extended to long Tacks of Lands Teinds or others 22. A right to Teinds may be prescribed as well as other Rights by fourty years possession but a right to by-gone Teinds being founded in publick Law prescribes not except as to the by-gones before fourty years and the possessor cannot prescribe an absolute immunity and freedom from payment within the fourty years and in time coming seing all Lands in Scotland by Law are lyable in Teind but such as never payed any being cum decimis inclusis or belonging to the Cystertian Order Templers and Hospitallers or Gleibs February 7. 1666. Earl of Panmure contra Parochioners of 23. This Statute is also extended unto rights of Patronage or Offices which are heretable rights though they be not alwayes constitute or continued by Infeftment yet fourty years possession by the original right in the first acquirer or by the continuation in their successors does establish their rights against all quarrelling by Reduction or Declarator Yea this Statue is extended to long Tacks which if cled with fourty years peaceable possession either in the Tacksman or his Assigneys or their Heirs who need no service cannot be quarrelled but stand valid not only for these fourty years but for all subsequent years unexpired As was found in a Tack of Teinds though set without consent of the Patron and the Bolls liquidate to ten shilling July 7. 1677. the Parson of Prestounhaugh contra his Parochioners 24. It is also extended to Thirlage and Multures with any antecedent adminicle as by inrollment of Court and generally to all servitudes though there be no more antecedent Title but part and pertinent of the dominant Tenement either exprest or implyed as was found in the case of a pasturage and sheilling albeit there was produced an old Tack bearing to be granted to
full year after the Defuncts death so that after that year the heirs Dispositions are not limited though they should prefer their own Creditors to the Defuncts and therefore the Defuncts Creditors had need to use Inhibition or Inchoat their diligence by charge to enter heir which may be within the year of deliberation they may also then Arrest though they cannot Insist in pursuits upon any of these or other grounds till the year pass For this Act doth not prefer the diligences of the Creditors of the Defunct to the voluntary Dispositions granted by the heir to their own Creditors but only to the legal diligence of their own Creditors therefore this preference of the Defuncts Creditors prescrives in three years or rather in two years because within the year of deliberation they cannot pursue unless the heir enter or immix and therefore this priviledge prescrives in two years after the year of deliberation 30. Thirdly There is a Triennial prescription of Spuilzies Ejections Intrusions which comprehends succeeding in the Vice of parties removed par 1579. cap. 81. This prescription by the Statute runs not against Minors This prescription doth not take away the Right but only the priviledges thereof as proceeding upon a short Citation and the oath in litem allowed to the party injured to declare his loss and the violent profites but hinders not the Restitution or Recovery of the thing with the ordinary profites There is also a Triennial prescription of Merchant Counts House Mails and the like which is only as to the manner of probation that if these be not pursued within three years from the time they are due witnesles shall not be admitted to prove the same but only write or oath of party But in this prescription Minority is not excepted par 1519. cap. 83. which is not extended to Rents of Lands in the Countrey January 20. 1627. Gavin Ross contra Fleming In both these Prescriptions if Actions be intented within the prescription of three years Custom hath not limited these Actions to three years but they continue for fourty years which might have much more conveniently been cut of by three years for thereby the Action which is accessory was more priviledged then the principal Right to which it is accessory which is amended in part by posterior Statutes There is another Triennial prescription in removings that if they be not pursued within three years there can never be purfuite thereafter upon the same Warning where in Minority is not excepted par 1579. cap. 82. This prescription was not reckoned from the date of the warning as being uncertain but from the Term to which the Warning was made February 6. 1629. Lady Borthwick contra Scot. 31. There is a Quadriennial prescription in favours of Minors to reduce deeds done by them in their Minority to their enorm Lesion from their age of twenty one compleat to their age of twenty five conpleat but these Actions being intented within that Quadriennium utile did last for fourty years till the late Act of Parliament anent prescription and interruption 32. There are several Quinquennial prescriptions As first all Arrestments upon Decreets prescrive five years after the dates thereof and Arrestments upon Dependences prescrive in five years after Sentence upon the dependence if the saids Arrestments be not pursued or insisted upon during that time By this Statute Ministers Stipends and Multures not pursued for within five years after they are due and likeways Mails and Duties of Tennents not being pursued within five years after the Tennents removal prescrive unless the said Stipend Multures Mails and duties be proven resting by oath or special write acknowledging what is resting and that all Bargains concerning moveables or sums of Money probable by witnesses shall only be probable by write or oath of party if the samine be not pursued within five years after the making of the bargain There is also a quinquennial prescription of the Legal Reversions of special Adjudications whereby Lands are adjudged only equivalent to the sums by the Act of Parliament September 6. 1672 cap. 19. 33. There was a seven years prescription of the legal Reversions of Apprizings And there is Septennial prescription of interruptions which if they be not renewed every seven years prescrive by the Act of Parliament December 8. 1669. cap. 10. 34. There is likewise a Decennial prescription by the said Act of Parliament 1669. cap. 9. of all Actions upon warnings Spuilzies Ejections Arrestments or for Ministers Stipend Multures Rents of removed Tennents which Actions prescrive in ten years if they be not renued every five years but prejudice of any shorter prescription of the saids Acts by former Acts of Parliament which gives ground to alter the former Custom anent the Triennial prescription that the Actions intented thereupon may prescrive in three years 35. And by the same Statute there is introduced a prescription of twenty years of Holograph Bonds and Holograph Missives and subscriptions in Compt Books without witnesses unless the verity of the said subscriptions be proven by the defenders oath by which manner of probation there is action competent till the long prescription of fourty years 36. All these short prescriptions are declared not to run against Minors except only the prescriptions of Removings and Merchants Compts c. which except not Minority though they do immediately follow prescription of Spuilzie Ejections c. which do except the same and so appear to be of design omitted in the former Triennial prescriptions and therefore it is not like the Lords will extend the exception of minority thereto as they would not appoint a years Rent to Superiours in Adjudications as in Appryzings because it was omitted in the Act anent Adjudications next unto the Act anent Appryzings in which it was exprest until the late Act of Parliament extended the years Rent to Adjudications THE INSTITUTIONS OF THE LAW OF SCOTLAND Deduced from its Originals and Collated vvith the Civil Canon and Feudal-Lavvs and vvith the Customs of Neighbouring Nations The second PART By Sir JAMES DALRYMPLE of STAIR PRESIDENT of the SESSION EDINBURGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1681. TITLE XXIII Assignations Where of Arrestments and Actions for making Forth-coming 1. The several Conveyances of Rights 2. What Rights are not Transmissible 3. The rise of Assignations 4. The Tenor of Assignations 5. The conveyance of blank Bonds c. 6. The rise and effect of Intimations 7. The several ways of Intimation 8. What Assignations are perfected by possession without other Intimation 9. Other supplies of Intimation 10. Intimations to more correi debendi 11. Intimation is not necessary to Rights Registrate for publication as Reversions c. 12. Nor to orders of Merchants 13. Nor to Judicial Assignation by Appryzing c. 14. Nor to the Legal Assignation Jure Marid by Marriage 15. Nor against the Cedent his Heirs or Executors even though Creditors 16. To what Rights
the Lands that the value and worth thereof might the more clearly appear where after discussing of the Appryzers Claim the hability of the persons of Inquest and Witnesses so much Land was appryzed and adjudged as was worth the sum the years Rent to the Superiour and expenses of Infeftments and if the Lands were burdened with any former annualrents whereby a proportion of Land could not be appryzed free of burden there was appryzed an annualrent forth of the Lands effeirand to the sums and expenses foresaid and redeemable in the same manner which was sustained by the meaning and intent of the Statute though by the words of it appryzing of Lands was only mentioned it was ever extended to all Heretable Rights thus it continued till the Lords of Session upon exceptions against the Sheriff upon his interest relation or enimity or upon the lying of Lands in diverse Jurisdictions for preventing of expenses by many appryzings where the Lands in one Jurisdiction sufficed not did grant Letters of appryzing under the signet direct not to the ordinar Sheriffs but to sherifts in that part which being frequent did come to run in course to Messengers as sheriffs in that part c. And thereby the appryzer in respect the Letters had a blank for inserting the Messengers name did choise the Messenger who did denunce all Lands and other Heretable Rights which the appryzer pretended to belong to his debitor And in respect the Letters bore dispensation of the place did apprize at Edinhurgh all that the appryzer clamed in satisfaction of the debt without knowledge or consideration of the value of the Lands or others appryzed or proportion to the sums appryzed for and thereupon was Infeft in the whole and payed to the superiour a composition for a years Rent of the whole which was a considerable accession to the Debitors debt and behoved to be payed by him and by the saids appryzings the appryzer might and oftentimes did enter in possession of the whole Lands without being countable for the rents thereof of what quantity soever By this abuse the intent of that excellent statute for appryzings was enervat and the same turned in a meer Formality until the Par. 1621. cap. 6. which began to correct that exorbitant abuse and declared appryzers countable for their intromissions in so far as exceeded their Annualrents to be imputed in their principal sums pro tanto and that they being thereby satisfied of their sums principal and annual composition to the superiour and expenses of appryzing and infeftments that thereby the appryzing should expyre ipso facto and it is also declared that if the Lands appryzed be not worth of free rent effeirand to the annualrent of the said sums that before redemption he shall be satisfied of the superplus By which Act it is declared that Minors may redeem Lands appryzed from them at any time within their age of twenty five years compleat yet so that after the first seven year the appryzer shall have the benefit of the whole Mails and Duties till he be redeemed which hath always been extended to Lands appryzed from persons being Major if a Minor succeed during the Legal and if a person being Major succeed to him who was Minor he hath the benefit of Reversion of seven year in so far as was not run in the Minors life and if less remain then a year at the Minors death the Major hath a full year to redeem after the Minors death and by the Act 1669. of the abrogat Parliament 1641. appryzers were declared countable for the rents of appryzed Lands intrometted with by them during all the time of the Legal whether competent to Minors or others And because of another great abuse by the debording of Appryzings from the first institution that the first appryzer appryzing the whole Estate the other Creditors had no more but the Legal Reversion which did ordinarly expyre the subsequent Creditors not being able to raise money to redeem the anterior appryzer whereby the first appryzer carried the whole Estate and excluded all the rest and being ashamed to take so great a Legal advantage and sometimes not daring to make use of it did ordinarly compone with the debitor his appearand heir or some confident to their behove whereby the debitors heir recovered his whole Estate by satisfying one Creditor and excluding all the rest therefore the Par. 1661. by their Act 62. anent debitor and creditor declared that all appryzings deduced since the first of January 1652. or to be deduced in time coming within a year after the first appryzing which became effectual by infeftment or Charge should come in pari passu as if one appryzing had been led for all the sums and thereby the legal was extended to ten year and it is declared that whensoever the appearand heir or any to his behove shall acquire right to any expyred appryzing that the same shall be redeemed from them within the space of ten year after their acquiry by posterior appryzers upon payment of what they truly payed in so far as shall not be satisfied by their intromission But neither did this statute cure the abuse of appryzings and therefore the Act of Par. of the 6. of septem 1672. upon consideration of debording of appryzings from the first design and of the great inconveniencies arising thereby for the bringing in of all appryzers within year and day did give way to break the credit and ruine the interest of the most considerable Heretors in the Kingdom that creditors being thereby invited under the hazard of being excluded to appryze within a year and thereby one wilful malicious or necessitous Creditor apprizing all the rest followed and intirely brook their credit unless they would pay all their debt in one day therefore the Parliament did in place of Appryzings ordain adjudications to proceed before the Lords of Session for adjudging the Lands and other Heretable Rights of debitors effeirand to the sums appryzed for and a fifth part more in place of the penaltiies and sheriff-fee and allowed Witnesses for either party for clearing of the Rental and rate of the Lands in the several places where they ly and appointed the adjudger to have present Possession of the Lands adjudged not being accountable for his intromission during the Legal redeemable only within five year whereby the Creditor had easie accress for his satisfaction without all hazard or account which had been the ground of many tedious Processes of Count and Reckoning for the Intromission of former Appryzers and wherein the Adjudgers is to have the Consent of his debitor both as to Right and Possession and delivery of the Evidents and it is declared that if the debitor do not instruct and deliver a good Right and consent as said is that the creditor might adjudge all the debitors Estate in the same manner and to the same effect as is appointed by the Act of Par. 1661. between debitor and creditor We shall not here speak of
Adjudications and Appryzings as they are legal Executions and of the Order and Solemnities requisite to them as such but only as they are Conveyances of real Rights wherein we shall consider first upon what ground Appryzings proceed Secondly against what Rights they are competent Thirdly what is the effect of the Process or Decreet of Appryzing without further Diligence Fourthly what is the effect thereof when further Diligence is used Fifthly what is the effect thereof when Infeftment is obtained And lastly in what manner it ceaseth and becometh extinct 14. As to the first Appryzing is an Appretiation and Judicial Vendition of the thing appryzed from the Debitor to the Creditor and as in all Venditions there must be merx and pretium or the price in numerat Money for if the mutual consist in any thing else it is not Sale but Exchange therefore the ground of Appryzing must be numerate and current Money and if originally it be not so it must be liquidat before Appryzing can proceed neither can it proceed but upon a Decreet establishing the Debt by Registration or otherways in the person of the Appryzer active and of the Debitor Passive yet an Assigney intimating before the Cedents death may Appryze summarly without Action establishing the Debt in his person as hath been shown Title Assignations Neither could Appryzing proceed upon Heretable Bonds unless the same had been made moveable by Requisition or Charge and therefore was found null proceeding upon an Heretable Sum bearing a Clause of Annualrent though payable without requisition upon a single Charge of six days seing that Charge was not given July 20. 1622. John Cranstoun contra Laird of East-nisbit Hope Obligations Alexander Mowat contra the Creditors of John Richardson John Cranstoun contra Laird of Lugtoun But Posterior Decisions have run in the contrair that if the sum were payable without Requisition Appryzing might proceed thereupon without a Charge as well as Poynding or Arrestment July 4. 1627. Edgar and Johnstoun contra Findlason July 10. 1629. Clackmannan contra Barroun In which case the principal sum was payable at a precise Term and no mention of any Term or time thereafter and yet was Appryzed for after that Term January 25. 1642. John Seatoun contra James Loch But if Infeftment have followed or Requisition be requisite the sum must be made moveable before Appryzing But other Sums though by Destination Heretable yet having Summar Execution by the parties consent Appryzing is sustained thereupon 15. As to the second point against what Rights Appryzings extend First though Letters of Appryzings contain power to poynd Moveables which must be searched for yet that which is properly called Appryzing extends to no Moveables but only to Heretable Rights as Lands Annualrents Liferents Tacks Reversions Heretable Bonds July 25. 1623. Earl of Errel contra Buckie and therefore it extends not to the Mails and Duties of the Appryzed Lands before the Appryzing Feb. 14. 1623. Saltcoats contra Home The like though the question was against the Debitor himself and that the style of the Appyzing bore all Right that the Debitor had to the Lands to be Appryzed March 13. 1627. Mackre of Balmagie contra Livingstoun And where an Annualrent is Appryzed it extends not to the bygone Annualrents which are Moveable but these being Moveable are Arrestable neither doth it extend to the Duties after Denunciation and before Appryzing Feb. 16. 1633. Harper contra Cockburn and Johnstoun Appryzing is extended to all Heretable Rights though they were not provided to Assigneys but to the Debitor and his Heirs only or failing such Heirs to return and therefore publick utility and the favour of the Creditor makes it more effectual then any voluntar Disposition or Assignation could be so an Appryzing was found to carry a Right though not granted to Assigneys Hope Appryzing John Brown contra Fssilmont of Buckie And a Husband granting Right to his Wife but with provision that she should renounce it if he required it in his own life allennerly a Creditor of his Appryzing that Land and requiring the Wife to renunce was found to have right thereto spots Appryzing Lady Huttonhal contra Cranstoun of Moristoun An Appryzing of the ground Right and Property of Lands and all other Rights c. carryeth not only the Property but all other real Right or Obliegements for granting thereof and though no Infeftment follow the Appryzing so conceived will carry any Right which requireth not Infeftment as if it had been specially Denunced and Appryzed June 19. 1635. James Rule contra Alexander Home 16. To come now to the third Point concerning the Efficacy of the Process and Decreet of Appryzing without further Diligence and first it hath the effect of an Assignation without necessity of Intimation and carries all Rights which require not Infeftments to transmit them as Liferents Reversions Tacks And so an Appryzing was found to carry the Legal of an anterior Appryzing though the Denunciation whereupon it proceeded was anterior to the Denunciation whereupon the first Appryzing proceeded and thereby at the time of the Denunciation of the second Appryzing neither was the first Appryzing in being neither the Denunciation thereof and so could not be Denunced or Appryzed yet the Denunciation of the Ground-right and all Right competent or that might be competent to the Debitor was found to carry the Reversion of the said first Appryzing Novem. 18. 1624. Doctor Kincaid contra James Halyburtoun 17. Though second Appryzings carry the legal Reversions of anterior Appryzings without Infeftment Yet Infeftment is frequently taken thereupon that the posterior Appryzer may have Interest thereby to reduce or quarrel the Anterior Appryzings and to pursue for Mails and Duties or Removing if the Anterior appryzer should forbear 18. The second effect of Appryzing is that the Debitor is thereby so far divested that after his death Infeftment may be taken by the Appryzer without transfering or Infefting the Debitors Heir Novemb. 20. 1624. Lag contra his Tennents So likewise the heir of the Appryzer dying before allowance or Infeftment upon Supplication obtained allowance from the Lords and Letters to Charge the Superiour to receive him Spots hic Alexander Frazer Supplicant The like was granted by the Appryzers Assigney March 22. 1626. Collace contra Lord Elphingstoun Yea an appryzer did obtain allowance and varrand to Charge the heir of the Superiour contained in the first allowance being dead Decem. 5. 1628. Laird of Corsbie contra Kilsyth From this ground it is that an Appryzing excludes prior assignations granted by the Debitor to the Mails and Duties of the Lands appryzed as to Terms after the appryzing Hope assignations George Meldrum contra Laird of Anstruther 19. And when an appryzing was led before an Husbands death it excluded his Wife from a Terce Hope appryzings James Chrightoun contra Relict of John Cranstoun Where he doth also observe it to exclude a subsequent Ward in respect the Superiour gave a Charter upon the appryzing in his Vassals life
renunce in the second instance after Decreet obtained against him Or in the first instance when the Ground and Title of the Pursuite instructs the debt then there needs no other decreet cognitionis causa but the Pursuer Protesting for adjudication the same will be admitted summarly Adjudication it self is a most simple and summar Process whereby the heir renuncing and the debt being established as said is the whole heretage renunced orbenefite whereto the heir might succeed is adjudged by the Lords to the pursuer for satisfaction of the Defuncts obliegement wherein the heir renuncing is again called to sustain the part of a defender which is only for forms sake for he can propone nothing and one single summonds is sufficient without continuation because it is accessory to a prior Decreet as Dury observes but expresseth not the Parties Feb. 26. 1629. And all is adjudged periculo potentis whatsoever the Pursuer pleaseth to Lybel alledging that it might have belonged to the heir entring Yea though any Party having Interest should compear and instruct that he hath the only Right and the Defunct was fully denuded it would be incompetent hoc loco Spots adjudication Cairncorss contra Laird of Drumlanrig 46. The reason is because the Adjudication is but periculo petentis and can give no Right unless the Defuncts Right competent to the heir renuncing be instructed Neither can the adjudger who is a stranger to the debitors right be put to dispute the same in obtaining the adjudication yet the Lords admitted a singular successor to propone upon his Infeftment that the Defunct was denuded and adjudged not the Property but all Right of Reversion or other Right competent to the appearand heir July 22. 1669. Alexander Livingstoun and Sornbeg contra heirs of Line of the Lord Forrester In this case the matter was notour to many of the Lords that the Lord Forrester having no Sons did contract his Estate with one of his Daughters to Leiutenent General Baities Son who was thereupon publickly Infeft But the reason why appryzings and adjudications have past so much at Random is because the appryzings have deboarded from their ancient form by an Inquest knowing the Lands which therefore would never have appryzed Lands but where the debitor was commonly repute Heretor or Heretable Possessor But when appryzings came to be deduced by Sheriffs in that part constitute by the Lords by Dispensation at Edinburgh where persons were made the Inquest who knew nothing of the Lands then all became to be appryzed which was claimed and though the appryzer would not pay a years Rent for entering him in Lands where he had no probability of Right in his debitor the greatest inconvenience was as to the Lands holden of the King it was little addition of Expences to passe one Infeftment for all and other Superiours getting a years Rent salvo jure they were not suffered to Contravert But now Adjudications being in place of Apppryzings and passing upon Citation before the Lords it is not like they will adjudge Lands where the Debitors are not at least repute heretable Possessors or Liferenters for now the Lords are in place of the Inquest And albeit as they suffer Decreets in absence to pass periculo petentis so they will suffer Adjudication to pass of all that is Lybelled but if any other shall appear and make it appear that they and their Predicessors have been holden and repute Heretable Possessors and that there was no Right repute to be in the Debitor the Lords might readily superceed to adjudge till some evidence were given of the Interest of the debitor Seasines having been now Registrat since the year 1617. And likewise Reversions though adjudicationes of these might more easily pass then because no Infeftment would follow But where Lands are adjudged and Infeftments follow there arises thence grounds of pleas and pursuits especially for Reduction and Improbation upon which all the Heretors of the Lands contained in the Infeftments would be oblieged to produce their Rights and open their Charter Chests to parties having no pretence to their Estates The adjudication was sustained of all Lands generally without condescendence Decemb. 14. 1638. Corser contra Dury But where the Defender appeared not or contraverted it not in the adjudication Process for Mails and Duties of the Lands adjudged was sustained in the same Libel Ibidem And in adjudication of a Reversion the Declarator for redeeming the same was sustained in the same Lybel July 8. 1629. Dury contra Kinross 47. In adjudication all is competent to be adjudged Which should have befallen the heir entering as Lands Annualrents Reversions Tacks Liferents and all Heretable Bonds yea not only these Rights themselves but the bygone Rents and Duties thereof preceeding the adjudication and after the Defuncts death may be adjudged and pursued against the Possessors and Intrometters in that same Process because these are competent to the Heir renuncing and there is no other way to attain them as in the case of appryzings which are not extended to bygones seing these may be arrested and pursued as Moveables belonging to the Debitor as was found in the said case Corser contra Dury Decemb. 14. 1638. And likewise heirship Moveables for the same reason are competent in adjudications but not against other Moveables of the Defunct which may be confirmed Spotswood Caption Isobel Hagie contra her Daughters Novemb. 24. 1638. Campbel contra John Baxter and so it is not competent against an Heritable Bond made moveable by a Charge Jan. 30. 1627. Couper contra Williamson and Bogmiln Yet if an Heritable sum should become moveable after the Defuncts death as by an order of Redemption it would be competent by adjudication seing it could be reached no other way In adjudications it is only competent to Creditors to appear having like Process of adjudication depending for all will be brought in pari passu who are ready before Sentence with the first pursuer Hope adjudications Stuart contra Sturt 48. If the adjudication be of Lands or Annualrents requiring Infeftment the Superiour will be compelled to receive the adjudger though a stranger his Vassal though he do not instruct his Authors Right salvo jure cujustibet suo Feb. 9. 1667. Elizabeth Ramsay contra Ker. But as to the years Duty payable by the adjudger to the Superiour for their Entry though the Lords thought it equitable that it should take place as well in adjudications as appryzings the reason being alike in both yet found not sufficient ground whereupon to decern it seing the said years Rent is exprest in the Act of Parliament 1469. cap. 36. And the Composition of the Superiour for receiving appryzers Parliament 1621. cap. 6. Yet in the next Act of the same Parliament anent adjudications there is no mention of Composition to the Superiour though the Act relateth to the former Act anent appryzings and therefore they thought it not competent to them to extend the said composition ad pares casus where
was found to have no Aliment from his Mothers Life-rent who brought 8000. Merks of Tocher and had but 10. Chalders of Victual in Life-rent July 21. 1626. Laird of Ramorny contra Law The like where the Heir was not Minor but designed himself Preacher and so having a calling Feb. 11. 1636. Sibbald contra Wallace Here the Relict was Infeft in no Land but had an Annualrent of 400. Merks out of Land and the Heir was not Minor Whereas the Lords thought the Act of Parliament was not in favours of Majors who ought to do for themselves but all must be considered complexly in this Decision Some Heirs by their Quality not being bound to follow Callings but the Life-rent was a mean Annualrent no more then an Aliment to the Relict the Pursuer Major and having a calling And certainly where the Life-rent is but an Aliment the appearand Heir must rather want then the Person provided for a cause onerous Though the Act mention only Ward Lands yet it was extended to a Minor having no Ward Lands against a Life-renter of all his Fstate being Houses and Annualrent of Money Feb. 22. 1631. Fiinnie contra Oliphant In this case it was not found sufficient that the Life-renter offered to maintain the Minor her own Child upon her own charges she being married to a second Husband But the Tutor obtained modisication with consideration of the moveable Heirship on the contrary where the Mother was not married her offer of Intertainment was received July 14. 〈◊〉 Alexander Noble and his Tutors contra his Mother Neither was the modifi cation excluded because there were free Lands at the Defuncft Death seing they were appryzed thereafter for the Defuncts debt Hope de haered White contra Caldwall The like the debt being great and the Annualrent thereof equivalent to the rent of the Lands not Liferented Feb. 13. 1662. Antonia Broun contra her Mother But Aliment was not found due by a Father Life-renter to his Son on this Act but only super Jure Naturae July 21. 1636. Laird of Rumorney contra Law Nor by a Grand-father to his Oye who had disponed his Estate to his Son reserving his Life-rent of a part the rest unsold by his Son being Life-rented by his Wife July 7. 1629. Hamilton contra his Goodsir But where the Heirs Mother brought a great Tougher and the Grand-father fell to a plentiful Estate by his Brother the Heir was found to have Aliment of his Goodsir though he disponed the Land to the Heirs Father burdened with his Mothers Life-rent June 27. 1662. Heir of Gairn contra Laird of Gairn This behoved not to be from the Statute but ex debito naturali Aliment was found due by a Liferenter to her daughter the appearand Heir though she renounced to be Heir July 16. 1667. Hamilton contra Symonton But where a Father disponed to his Son a part of his Estate reserving his Life-rent and another to his Son and his Wife in Conjunctfie after his Sons Death his appearand Heir got no part of his Aliment from his Goodsir but only from his Mother Feb. 26. 1675. Sr. John Whitfoord contra Laird of Lamington Aliment was found due to the Heir by an Asigney to a Gift of Ward without necessity to prove that he intromitted with the Ward Lands unlesse he had been Legally excluded which was Modified by the Lords And it was not found sufficient to intertain him in the Assignyes Family but nothing was Modified for that time that the Minors Mother Alimented him gratis Feb. 19. 1679. Sibbald of Cair contra Sr. Alexander Ealconer 4. Heirs also not entered have the benifite of such obliegments or provisions conceived in Favours of Heirs which by their Nature or Meaning require to be fulfilled before the Heirs entry As when a Party was obleiged to imploy a Sum upon Land and to procure himself and his Umquhil Spouse Infeft therein in Life-rent and the Heirs Procreat betwixt them in Fee the Bairn of the Marriage who would fall Heir was thereby found to have Right to crave his Father to imploy the Money accordingly though he never was nor actually could be Heir his Father being alive December 16. 1628. Laird of Collington contra Granton In this case the Lords inclined so to decide but decided not But that day Durie observes a like case decided July 7. 1632. Young contra Young The like was decided Feb. 13. 1677. Alexander Frazer contra John Frazer In which case a Father by his Contract of Marriage being obleiged to imploy a certain Sum upon security to Him and his Wife in Conjunct-fee and to the Heirs of the Marriage and likewise to take all Conquest during the Marriage the one half to the Wife in Life-rent and the other to the Heir of the Marriage in Fee after the Wifes Death Process was sustained at the instance of the apparent Heir of the Marriage against his Father who was decerned to imploy the special Sum to himself and after his decease to the Heir apparent of the Marriage albeit therby the Father would remain Fiar and might dispone or burden the Sum so imployed for reasonable Considerations but not by Deeds meerly gratuitous to evacuat the obleigment And if he did Deeds prejudicial he would be obleiged to purge the same or re-imploy 〈◊〉 But it was not so found as to the Conquest before the Marriage which might be altered during his Life for that only could be accounted Conquest that he had more at his Death then at his Marriage And so Heirs of a Marriage in an obleigment in case a Wife deceased without surviving Heirs of the Marriage these were Interpret Bairns of the Marriage who survived their Mother but died before their Father and so could never be served Heir to him January 26. 1630. Turnbul contra Colinshlie The like where a Father was obleiged to Infeft himself and his Spouse in Conjunct-fee and the Heirs procreat betwixt them c. The apparent Heir was found to have interest to pursue the Father for fulfilling thereof and of the obleigment adjoyned not to dispone in their prejudice Hope de haeredibus Hamilton contra Silvertonhil Tacks set to Heirs require no service but being Notour to be the Person who might be served Heir they have right without service June 9. 1675. Hoom contra Johnston of Oldwells 5. As to the benifit of Heirs they have Right not only to Obleigments conceived in favours of the Defunct and his Heirs But though there be no mention of Heirs unlesse by the nature of the obleigment there be a speciallity appropriating the same to the Person of the Defunct only as in Commissions Trusts c. So Heirs were found to have the benifit of a promise made to their Predicessors for disponing of Lands to him acquired for his use though it mentioned not Heirs Feb. 22. 1610. Heir of Jean 〈◊〉 contra Livingston The like of a Reversion not mentioning Heirs which was thought to be omitted by neglect seing it bore not
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
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
Money are lent and the Obligement to repay is conceived thus To be payed at such a Term to the Lender and in case of his Decease or failing him by Decease or after his Decease to such a Person Whence these Questions result first Whether the Lender be Feer of the Sum and the Person substitute Heir of Provision Or whether the Person substitute be Heir whether he may succeed at any time or only if the Lender die before the Term of Payment As to the first Question the Person substitute is not Feer but Heir and the Lender is not Liferenter but Feer and therefore may dispose of the Sum at pleasure by Assignation Legacy or otherwise as other Feers may February 22. 1623. Mr. John Leich contra Laird of Balnamoon February 28. 1626. Tulliallan contra Laird of Clackmannan And where the Clause bare to be payed to Clackmannan and his Spouse the longest liver of them two and in case of their Decease to Alexander Bruce their Son in Fee with an Obligement to infeft the Spouse in Liferent and the Son in Fee in an Annualrent effeirand thereto yet the Father was found to have Right to dispose of the Sum. The like was found Feb. 20. 1629. Laird of Drumkilbo contra Lord Stormount where the Father surviving the Term of payment though he freely and without a Cause onerous discharged the Sum provided to be payed to him and failing him to his Son though it bare a Clause of Infeftment to the Father in Liferent and to the Son in Fee but no Infeftment followed The like though the Father and the Son subtitute were both infeft in one Seasine July 23. 1675. Laird of Lamingtoun contra Muire of Annistoun As to the second Question The more ancient Decisions have interpret such Clauses strictly thus That the Sum payable at such a Term to the first Person should be payed at that Term to the Person substitute so that it should be payable at no Term thereafter to the Person substitute but if the first Person survived the Term of payment though he did nothing to alter the Substitution the same should not belong to the Person substitute but to his heirs Hope succession Spots Assignations Laird of Bonytoun contra John Keith Feb. 22. 1623. John Leich contra Laird of Balnamoon Where it was found that such Sums came under the first Persons surviving the Term their Testament and belonged to their Executors But more frequent Decisions have with better reason interpret such Clauses on the contrary that the Person substitute is heir of Provision whensoever the Defunct dies whether before or after the Term. Because constitution ofheirs is simply and not ad diem but mainly because the ordinary intent of such Clauses is to appoint Portions for the Bairns named therein who therefore are substitute heirs of Provision to their Father so that if he do not expressly alter or prejudge the Substitution his intent is that they succeed him whensoever Spots Assignations Currie contra Nimmo Relict of John Thomsom contra William Thomson The like in a Legacy left to a Person and failing her by Decease to another which was not found à fidei commissum to be restored by the first Person to the second at her death And therefore the Assigny of the first Person was preferred Spots Disposition Sarah Reid contra Alexander Downie January 18. 1625. Wat contra Dobbie June 26. 1634. Keith contra Innes Therefore such Sums bearing no Clause of Infeftment yet fall under Testament neither hath the Relict a third thereof Hope Successions In these Substitutions though the Person be substitute as heir yet he is not properly heir and so needs not to be entered by any Service because he is nominate and there is no other heir But inTailzies though some of the Members of the Tailzie be nominate yet because in Lands as is before said the Person nominate is never the first heir therefore there must be a Service to enquire whether the first heir fails or not which is unnecessary where there is one Person only nominate to be heir concerning which there needs beno enquiry Though the Persons substitute be as heirs it followeth not that they must be lyable as heirs of Provision to the first Person 's Debt contracted before the Substitution because they are not properly heirs not requiring any Service They are interpretativè like to heirs because the nature and intent of such Clauses is not to constitute the first Person as a naked Liferenter but that they are understood as if they were thus express'd With power to the first Person to alter aad dispone at his pleasure during his life So thereafter only the heirs substitute take place though in these respects as heirs yet in reality as secundary conditional or substitute Feers But the Substitute is lyable other 〈◊〉 Heirs and Executors being discussed unless the Person substitute abstain Because the Substitution is a gratuitous Deed in prejudice of Creditors post contractum debitum and so annullable and the Substitute medling is lyable to repay quoad valorem only but never by an universal passive Title July 3. 1666. Fleeming contra Fleeming The next difficulty is who is Feer in Provisions or Tailzies of Sums Annualrents or Lands in Conjunctfee wherein these general Rules do ordinarly take place First That the last termination of Heirs whatsoever inferreth that Person of the Conjunctfeers whose Heirs they are to be Feers and the other Liferenters 2. When that is not express'd potior est conditio masculi the Heirs of the Man are understood But these have their own Limitations as first in Moveable Goods and Sums provided to a Man and a Wife and their Heirs without me ntioning which failing to whose Heirs the same should be due were found not to fall to the mans Heirs but to divide equally betwixt the Man and Wifes Heirs February 2. 1632. Bartholomew contra Hassingtoun February 18. 1637. Mungle contra John Steill Yea a Clause in a Reversion redeemable by a Man and his Wife and their Heirs was found to constitute the Wife Feer of the Reversion because she was Feer of the Land Wadset Hope Liferent Kincaid contra Menzies of Pitfoddels But an Assignation to a Reversion provided to a Man and Wife the longest liver of them two and their Heirs was found to make the Man only Feer Hope Husband and Wife Walter Collistoun contra Laird of Pitfoddels A Clause in a Charter providing Lands to a Man and his Wife the longest liver of them two and the Heirs betwixt them Which failing to the Heirs of the Mans Body Which failing to the Wife her Heirs whatsoever though the last termination was upon the Wife yet the Husband was found Feer July 24. 1622. Ramsey contra Laird of Conheath The like in a Clause providing a Sum being a Wifes Tocher to the Man and Wife and the longest liver of them two in Conjunctfee and to the Heirs betwixt them Which failing the Wifes heirs yet the